                                 IN THE
                         TENTH COURT OF APPEALS

                                No. 10-13-00095-CR

JEREMY CHAD BUKOWSKI,
                                                          Appellant
v.

THE STATE OF TEXAS,
                                                          Appellee



                          From the 18th District Court
                            Johnson County, Texas
                             Trial Court No. F45969


                         MEMORANDUM OPINION


      In four issues, appellant, Jeremy Chad Bukowski, challenges his conviction for

capital murder. See TEX. PENAL CODE ANN. § 19.03(a)(2) (West Supp. 2013). Specifically,

appellant contends that: (1) police did not have reasonable suspicion to stop him; (2)

the trial court erred by failing to include an instruction in the jury charge requiring

unanimity with respect to the alleged felonies underlying the capital-murder offense;
(3) his confession violated the “Texas Confession Statute”; and (4) the trial court

erroneously admitted hearsay evidence during a suppression hearing. We affirm.1

                            I.      APPELLANT’S MOTION TO SUPPRESS

        In his first issue, appellant contends that he was arrested pursuant to an illegal

stop.   Specifically, appellant argues that law enforcement did not have reasonable

suspicion to pull him over. As such, appellant asserts that the trial court abused its

discretion in denying his first amended motion to suppress.

A.      Standard of Review

        We review the trial court’s ruling on a motion to suppress evidence for an abuse

of discretion, using a bifurcated standard. See Crain v. State, 315 S.W.3d 43, 48 (Tex.

Crim. App. 2010); Guzman v. State, 955 S.W.2d 85, 88-89 (Tex. Crim. App. 1997). We

give “almost total deference” to the trial court’s findings of historical fact that are

supported by the record and to mixed questions of law and fact that turn on an

evaluation of credibility and demeanor. Guzman, 955 S.W.2d at 89. We review de novo

the trial court’s determination of the law and its application of law to facts that do not

turn upon an evaluation of credibility and demeanor. Id. When the trial court has not

made a finding on a relevant fact, we imply the finding that supports the trial court’s

ruling, so long as it finds some support in the record. State v. Kelly, 204 S.W.3d 808, 818-

19 (Tex. Crim. App. 2006); see Moran v. State, 213 S.W.3d 917, 922 (Tex. Crim. App. 2007).

We will uphold the trial court’s ruling if it is reasonably supported by the record and is


        1 As this is a memorandum opinion and the parties are familiar with the facts, we only recite
those facts necessary to the disposition of the case. See TEX. R. APP. P. 47.1, 47.4.


Bukowski v. State                                                                             Page 2
correct under any theory of law applicable to the case. State v. Dixon, 206 S.W.3d 587,

590 (Tex. Crim. App. 2006).

         When ruling on a motion to suppress, 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). When reviewing a trial

court’s ruling on a motion to suppress, we view all of the evidence in the light most

favorable to the ruling. Garcia-Cantu v. State, 253 S.W.3d 236, 241 (Tex. Crim. App.

2008).

         When a trial judge makes explicit fact findings regarding a motion to suppress,

an “appellate court [must first] determine whether the evidence (viewed in the light

most favorable to the trial court’s ruling) supports these fact findings.”       Kelly, 204

S.W.3d at 818. “The appellate court then reviews the trial court’s legal ruling[s] de novo

unless the trial court’s supported-by-the-record explicit fact findings are also dispositive

of the legal ruling.” Id.

         The Fourth Amendment of the United States Constitution protects against

unreasonable searches and seizures by government officials. U.S. CONST. amend. IV; see

Wiede, 214 S.W.3d at 24.         To suppress evidence because of an alleged Fourth

Amendment violation, the defendant bears the initial burden of producing evidence

that rebuts the presumption of proper police conduct. Amador v. State, 221 S.W.3d 666,

672 (Tex. Crim. App. 2007); see Young v. State, 283 S.W.3d 854, 872 (Tex. Crim. App.

2009).    A defendant satisfies this burden by establishing that a search or seizure

occurred without a warrant. Amador, 221 S.W.3d at 672. Once the defendant has made

Bukowski v. State                                                                     Page 3
this showing, the burden of proof shifts to the State, which is then required to establish

that the search or seizure was conducted pursuant to a warrant or was reasonable. Id.

at 672-73; Torres v. State, 182 S.W.3d 899, 902 (Tex. Crim. App. 2005).

       Whether a search is reasonable is a question of law that we review de novo.

Kothe v. State, 152 S.W.3d 54, 62 (Tex. Crim. App. 2004). Reasonableness is measured by

examining the totality of the circumstances. Id. at 63. It requires a balancing of the

public interest and the individual’s right to be free from arbitrary detentions and

intrusions. Id. A search conducted without a warrant is per se unreasonable unless it

falls within one of the “specifically defined and well-established” exceptions to the

warrant requirement. McGee v. State, 105 S.W.3d 609, 615 (Tex. Crim. App. 2003).

B.     Reasonable Suspicion

       The Texas Court of Criminal Appeals has recognized three distinct categories of

interactions between police officers and citizens:       (1) encounters; (2) investigative

detentions; and (3) arrests. State v. Perez, 85 S.W.3d 817, 819 (Tex. Crim. App. 2002).

Courts look to the totality of the circumstances to determine into which category an

interaction falls. Crain, 315 S.W.3d at 49.

       An investigatory detention occurs when a person yields to an officer’s show of

authority under a reasonable belief he is not free to leave. Id. The inquiry is whether a

reasonable person in the citizen’s position would have felt free to decline the officer’s

requests or otherwise terminate the encounter. Id. “[A] police officer can stop and

briefly detain a person for investigative purposes if the officer has a reasonable

suspicion supported by articulable facts that criminal activity ‘may be afoot,’ even if the

Bukowski v. State                                                                    Page 4
officer lacks probable cause.” Woods v. State, 956 S.W.2d 33, 35 (Tex. Crim. App. 1997)

(quoting Terry v. Ohio, 392 U.S. 1, 29, 88 S. Ct. 1868, 1884, 20 L. Ed. 2d 889 (1968)). This

is an objective standard that disregards any subjective intent of the detaining officer and

looks solely to whether an objective basis for the detention exists. Ford v. State, 158

S.W.3d 488, 492 (Tex. Crim. App. 2005). When an officer subjects a defendant to an

investigatory detention, it is the State’s burden to prove the reasonableness of the

warrantless detention. Id.

       Reasonable suspicion exists if the officer has specific, articulable facts that, when

combined with rational inferences from those facts, would lead him to reasonably

conclude a particular person actually is, has been, or soon will be engaged in criminal

activity.   Castro v. State, 227 S.W.3d 737, 741 (Tex. Crim. App. 2007).           Whether

reasonable suspicion exists depends on the content of the information known to the

officer as well as its degree of reliability. Martinez v. State, 348 S.W.3d 919, 923 (Tex.

Crim. App. 2011). The State need not, however, establish that a crime actually occurred

prior to the investigatory detention, and a detention or search is unlawful at its

inception may not be validated by what it turns up. State v. Griffey, 241 S.W.3d 700, 704

(Tex. App.—Austin 2007, pet. ref’d); see Florida v. J.L., 529 U.S. 266, 271, 120 S. Ct. 1375,

1379, 146 L. Ed. 2d 254 (2000) (“The reasonableness of official suspicion must be

measured by what the officers knew before they conducted their search.”).               The

reasonableness of a temporary detention is examined in terms of the “totality of the

circumstances” at its inception. See Woods, 956 S.W.2d at 38. Individual circumstances

must not be considered in isolation, and the facts known to the officer must amount to

Bukowski v. State                                                                      Page 5
something more than an inchoate and unparticularized suspicion or hunch. Id. at 35.

Moreover, the Woods Court recognized that “there may be instances when a person’s

conduct viewed in a vacuum, appears purely innocent, yet when viewed in light of the

totality of the circumstances, those actions give rise to reasonable suspicion.” Id. at 38.

       There is no requirement that the “facts adduced to give rise to a reasonable

suspicion must show that the detainee has committed, is committing, or is about the

commit, a particular and distinctively identifiable penal offense.” Derichsweiler v. State,

348 S.W.3d 906, 916 (Tex. Crim. App. 2011). The Derichsweiler Court explained that:

       Moreover, the detaining officer need not be personally aware of every fact
       that objectively supports a reasonable suspicion to detain; rather, the
       cumulative information known to the cooperating officers at the time of
       the stop is to be considered in determining whether reasonable suspicion
       exists.

               ....

       Unlike the case with probable cause to justify an arrest, it is not a sine qua
       non of reasonable suspicion that a detaining officer be able to pinpoint a
       particular penal infraction. The reason is simple but fundamental. A brief
       investigative detention constitutes a significantly lesser intrusion upon the
       privacy and integrity of the person than a full-blown custodial arrest. For
       this reason, a warrantless investigative detention may be deemed
       “reasonable for Fourth Amendment purposes on the basis of a lesser
       quantum or quality of information—reasonable suspicion rather than
       probable cause. Likewise, because a detention is less intrusive than an
       arrest, the specificity with which the articulable information known to the
       police must demonstrate a particular penal offense has occurred, is
       occurring, or soon will occur, is concomitantly less. It is, after all, only an
       “investigative” detention. So long as the intrusion does not exceed the
       legitimate scope of such a detention and evolve into a greater
       intrusiveness inherent in an arrest-sans-probable-cause, the Fourth
       Amendment will tolerate a certain degree of police proaction.




Bukowski v. State                                                                        Page 6
Id. at 915-17 (internal footnotes & quotations omitted) (emphasis in original); see

Woodward v. State, 668 S.W.2d 337, 344 (Tex. Crim. App. 1987) (op. on reh’g) (noting that

probable cause is to be evaluated by the court on the basis of the collective information

of the police rather than that of only the officer who conducts the search or performs the

act of arresting).

C.      Discussion

        In its findings of fact and conclusions of law, the trial court found the following

beyond a reasonable doubt:

     (1) Deputy Michael Pool[e] personally observed the scene of the Capital
         Murder, Robbery[,] and Burglary at the home of the alleged victim, Rick
         Warren[,] in Rio Vista, Johnson County, Texas. Deputy Pool[e] conducted
         interviews of Michelle Adams, the victim’s sister, and Eddie Reed, the
         victim’s brother-in-law at the scene of the offenses. Deputy Pool[e] was
         told by Michelle Adams that the defendant, Jeremy Bukowski[,] and his
         girlfriend, Jennifer Davis, had recently lived with the victim and had been
         evicted from the property by the victim’s mother because they had stolen
         items from the victim. Michelle Adams related to Deputy Pool[e] that the
         defendant was angry about his eviction and the allegations of theft and
         that she believed that he was the one who had committed the offenses
         against the victim. Deputy Pool[e] relayed this information to other
         deputies and detectives with the Johnson County Sheriff’s Office,
         including Leona Yocham, Deputy Clark, Sheriff Bob Alford, and Troy
         Fuller.

     (2) Troy Fuller responded to the crime scene in Rio Vista and was given
         reports by all deputies and other personnel on the scene, including
         deputies Poole and Clark and detectives Mike Gaudet and Leona Yocham
         and others. Based on the information he received, including information
         derived from Michelle Adams and the law enforcement on the scene, he
         believed that the defendant, Jeremy Bukowski[,] was the actor in the
         offenses, a suspect in the offenses or had been involved in the offenses and
         other criminal activity. Based on these beliefs, Troy Fuller contacted the
         Johnson County Sheriff’s Dispatch and requested a call to be released to
         law enforcement to find the defendant, Jeremy Bukowski, and to stop him
         and investigate him for his involvement in the Capital Murder, Robbery[,]

Bukowski v. State                                                                       Page 7
       and Burglary of Rick Warren. Troy Fuller spoke directly to Lee Shastid
       and Marshall Whitlock of the Johnson County Sheriff’s Office and asked
       them to find, detain[,] and investigate the defendant. Shastid and
       Whitlock received information from Troy Fuller and began to look for the
       defendant in Burleson, Texas, one of Bukowski’s last known residences.
       Troy Fuller had been provided with the name, date of birth, description,
       vehicle description[,] and a photo of the defendant, Jeremy Bukowski,
       which was provided to Shastid, Whitlock[,] and other members of law
       enforcement who were asked to find, detain[,] and investigate the
       defendant.

   (3) Marshall Whitlock of the Johnson County Sheriff’s Office was also
       assigned to the STOP Special Crimes Unit of Johnson County. Whitlock
       contacted other members of STOP, including Mark Goetz, Larry Sparks[,]
       and Nick Garret[t], and asked them to detain and investigate the
       defendant for Capital Murder. Larry Sparks was provided with the name,
       date of birth, vehicle description[,] and photograph of the defendant and
       began looking for him in Cleburne, Johnson County, Texas. Sparks was
       able to find Bukowski using the photograph provided and seeing him in a
       vehicle that matched the description of Bukowski’s vehicle at a known
       drug location in Cleburne, Texas at 510 E. Willingham Street. Sparks
       began following the vehicle and called to Mark Goetz and Nick Garrett to
       stop the vehicle for investigation of Bukowski’s involvement in the
       Capital Murder.

   (4) Mark Goetz pulled along Bukowski’s vehicle and signaled him to pull
       over, which he did. Sparks then made contact with Bukowski and asked
       him to exit the vehicle and conducted a “Terry frisk” for officer safety.
       Sparks asked Bukowski if he had anything in his pockets that would hurt
       Sparks. Bukowski said he had “a point (syringe) in his right pocket that
       he had used to shoot methamphetamine that morning.” Sparks asked
       Bukowski if he had anything illegal in the vehicle and Bukowski admitted
       to having scales in the vehicle. Sparks arrested Bukowski for the criminal
       offense of Possession of Drug Paraphernalia. Sparks conducted an
       inventory of the vehicle and had Officer Nick Garrett transport the vehicle
       for impound at the Johnson County Sheriff’s Office.

   (5) That under the totality of the circumstances, the stop and detention of
       Defendant was lawfully conducted based on reasonable suspicion that an
       offense had been committed or was being committed and that Defendant
       was involved. The warrantless pat down search of Defendant was
       lawfully conducted for officer safety. The arrest of Defendant and the
       search incident to that arrest of the vehicle were lawfully conducted after

Bukowski v. State                                                                    Page 8
       the arrest of Defendant of the criminal offense of Possession of Drug
       Paraphernalia.

       On appeal, appellant complains that Adams did not personally witness the

alleged crimes; therefore, she was not a reliable witness upon which police could rely to

develop reasonable suspicion. We disagree.

       The Texas Court of Criminal Appeals has stated that “information provided to

police from a citizen-informant who identifies himself and may be held to account for

the accuracy and veracity of his report may be regarded as reliable.” Derichsweiler, 348

S.W.3d at 914-15. Further, “[i]n such a scenario, the only question is whether the

information that the known citizen-informant provides, viewed through the prism of

the detaining officer’s particular level of knowledge and experience, objectively

supports a reasonable suspicion to believe that criminal activity is afoot.” Id. at 915.

       Testimony during the suppression hearing demonstrated that Adams was on the

property the night of the incident and that she made a frantic telephone call to the

police at approximately 2:00 a.m., relaying that:        “someone had broken into her

brother’s house, had taken his items, and had hurt him. Those were her words. And

that he was not breathing.”

       Upon arriving at the scene, police saw Adams, a resident on the property who

lived about twenty yards away from the crime scene, standing in the driveway “visibly

frantic, arms waving, very distraught.” The police subsequently investigated Warren’s

mobile home and discovered visible damage to the inside door frame, that several of

Warren’s possessions were missing, and Warren “laying [sic] on the floor by his bed


Bukowski v. State                                                                     Page 9
laying [sic] on his back face up. He was very, very visible in the face and there was [sic]

no visible signs of life.”    Based on their investigation of the crime scene, police

determined that Warren had been murdered and that a robbery or burglary had taken

place.

         After securing the scene, police spoke with Adams once again. According to

Michael Poole, a patrol deputy for the Johnson County Sheriff’s Office, Adams

recounted the following:

         Ms. Adams advised us that approximately 1:00 o’clock she had been
         visiting with her brother. They’d been sitting out on the front porch just
         kind of talking. She returned to her residence. [Warren] went inside his.
         And then maybe an hour later she noticed that his front door was open,
         which she advised us was not common behavior for him, and she heard a
         loud thud or banging sound as she went to try to make contact with her
         brother and she saw two shadows. That was all that she was able to
         describe it as. And then she went inside after she awoke [sic] her husband
         up. They went in and found Mr. Warren and called us.

         When asked who might have been involved in the incident, Adams advised

police that: (1) appellant and his girlfriend, Jennifer Davis, had recently lived in

Warren’s mobile home, which is located in a remote place; (2) equipment used for the

renovation of other mobile homes on the property was missing during the time

appellant and Davis lived in Warren’s mobile home; (3) she confronted appellant about

the missing items and asked Davis to leave; (4) appellant and Davis refused to leave

and continued living in Warren’s mobile home until Adams’s mother arrived from out

of state and had appellant and Davis evicted; and (5) appellant was angry about the

eviction. In fact, Adams told Deputy Poole that the eviction of appellant and his

girlfriend was an “unpleasant experience, it was not a happy parting.” In addition,

Bukowski v. State                                                                     Page 10
Adams noted that appellant is a member of the Aryan Brotherhood criminal gang and

that his street name is “Bounce.” Several officers testified at the suppression hearing

that they regarded Adams as credible and reliable.

       Based on the information obtained from the crime scene and from Adams, police

determined that appellant had a motive to commit the crimes and, thus, was a person of

interest.   Police proceeded to obtain information about appellant’s vehicle and his

whereabouts. Appellant was well known to police as a drug user in the area; therefore,

police were able to obtain appellant’s name, date of birth, description, vehicle

description, and a photo of appellant.         Appellant was eventually discovered in

Cleburne, Texas, and Officer Mark Goetz effectuated the stop and detention of

appellant, as noted in the trial court’s findings of fact and conclusions of law.

       Considering the knowledge of all of the police involved in the investigation, in

addition to the totality of the circumstances, we conclude that the record contains

sufficient, articulable facts that give rise to reasonable suspicion that criminal activity

was afoot and, thus, supports the temporary detention of appellant. See State v. Kerwick,

393 S.W.3d 270, 273-74 (Tex. Crim. App. 2013) (citing Martinez, 348 S.W.3d at 923; York

v. State, 342 S.W.3d 528, 536 (Tex. Crim. App. 2011)); see also Derichsweiler, 348 S.W.3d

915-17; Castro, 227 S.W.3d at 741. As such, we cannot say that the trial court abused its

discretion in denying appellant’s motion to suppress. See Crain, 315 S.W.3d at 48; see

also Guzman, 955 S.W.2d at 88-89. Accordingly, we overrule appellant’s first issue.




Bukowski v. State                                                                   Page 11
                                  II.    THE JURY CHARGE

       In his second issue, appellant complains that the jury charge wrongfully allowed

a non-unanimous verdict because it did not require the jury to agree on the underlying

offense—robbery or burglary—during which the murder occurred.

A.     Standard of Review

       In reviewing a jury-charge issue, an appellate court’s first duty is to determine

whether error exists in the jury charge. Hutch v. State, 922 S.W.2d 166, 170 (Tex. Crim.

App. 1996). If error if found, the appellate court must analyze that error for harm.

Middleton v. State, 125 S.W.3d 450, 453-54 (Tex. Crim. App. 2003). If an error was

properly preserved by objection, reversal will be necessary if the error is not harmless.

Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1985). Conversely, if error was

not preserved at trial by a proper objection, a reversal will be granted only if the error

presents egregious harm, meaning appellant did not receive a fair and impartial trial.

Id. To obtain reversal for jury-charge error, appellant must have suffered actual harm

and not just merely theoretical harm. Sanchez v. State, 376 S.W.3d 767, 775 (Tex. Crim.

App. 2012); Arline v. State, 721 S.W.2d 348, 352 (Tex. Crim. App. 1986). To determine

whether a defendant suffered harm, we consider: “(1) the charge itself; (2) the state of

the evidence[,] including contested issues and the weight of the probative evidence; (2)

arguments of counsel; and (4) any other relevant information revealed by the record of

the trial as a whole.” Jordan v. State, 1 S.W.3d 153, 157 (Tex. App.—Waco 1999, pet.

ref’d) (quoting Hutch, 922 S.W.2d at 171).

B.     Jury Unanimity

Bukowski v. State                                                                  Page 12
       The Texas Constitution requires a unanimous verdict in felony criminal cases.

TEX. CONST. art. V, § 13; see TEX. CODE CRIM. PROC. ANN. art. 36.29(a) (West Supp. 2013).

A unanimous verdict is more than a mere agreement on a violation of a statute; it

ensures that the jury agrees on the factual elements underlying an offense. Francis v.

State, 36 S.W.3d 121, 125 (Tex. Crim. App. 2000) (op. on reh’g) (en banc). Generally,

instructing a jury on alternative theories of committing the same offense does not

violate the unanimity requirement. Martinez v. State, 129 S.W.3d 101, 103 (Tex. Crim.

App. 2004); see Jefferson v. State, 189 S.W.3d 305, 311 (Tex. Crim. App. 2006) (“Thus,

while jury unanimity is required on the essential elements of the offense, when the

statute in question establishes different modes or means by which the offense may be

committed, unanimity is generally not required on the alternate modes or means of

commission.” (internal citations and quotations omitted)). If a defendant is charged

with multiple offenses, however, the trial court must instruct the jury that it cannot

return a guilty verdict unless it unanimously agrees upon which offense the defendant

committed. Soto v. State, 267 S.W.3d 327, 335 (Tex. App.—Corpus Christi 2008, no pet.)

(citing Ngo v. State, 175 S.W.3d 738, 744 (Tex. Crim. App. 2005) (en banc)).

C.     Discussion

       At trial, appellant objected to sections six and seven of the jury charge on the

grounds that neither required unanimity as to which underlying offense of capital

murder was committed—robbery or burglary. In Gardner v. State, the Texas Court of

Criminal Appeals stated the following:


Bukowski v. State                                                                 Page 13
       We have consistently followed the Kitchens analysis in the context of
       capital murder jury charges: the gravamen of capital murder is
       intentionally (or knowingly) causing a death, plus any one of various
       different types of aggravating elements, and we most recently concluded
       that our holding in Kitchens applies equally to all alternate theories of
       capital murder contained within [Penal Code] § 19.03, whether they are
       found in the same or different subsections, so long as the same victim is
       alleged for the predicate murder. Kitchens remains good law. The jury
       charge properly set out the underlying felonies of burglary and retaliation
       in the disjunctive, and the jury did not need to be unanimous concerning
       which felony appellant was in the course of committing.

306 S.W.3d 274, 302 (Tex. Crim. App. 2009) (internal citations and quotations omitted);

see Kitchens v. State, 823 S.W.2d 256, 258 (Tex. Crim. App. 1991). In Kitchens, the Court

noted that:

       And although the indictment may allege the differing methods of
       committing the offense in the conjunctive, it is proper for the jury to be
       charged in the disjunctive. It is appropriate where the alternate theories of
       committing the same offense are submitted to the jury in the disjunctive
       for the jury to return a general verdict if the evidence is sufficient to
       support a finding under any of the theories submitted. Indeed, the
       Supreme Court has determined that there is no general requirement that
       the jury reach agreement on the preliminary factual issues which underlie
       the verdict.

823 S.W.2d at 258 (internal citations and quotations omitted); see Russeau v. State, 171

S.W.3d 871, 877 (Tex. Crim. App. 2005) (“[T]he evidence in a capital murder prosecution

need be sufficient to establish only one of the underlying felonies alleged in the

indictment.”).

       Here, appellant was charged with capital murder under section 19.03(a)(2),

which provides that a person “commits an offense if the person commits

murder . . . and . . . the person intentionally commits the murder in the course of

committing or attempting to commit . . . burglary, robbery . . . .” TEX. PENAL CODE ANN.

Bukowski v. State                                                                      Page 14
§ 19.03(a)(2).      Moreover, in this case, the indictment alleged both burglary of a

habitation and robbery in the conjunctive as underlying felonies for capital murder. In

addition, the jury charge alleged the same victim for the predicate murder, Warren, and

allowed the jury to convict appellant of capital murder if they found beyond a

reasonable doubt that he caused the death of Warren while in the course of committing

or attempting to commit robbery or burglary of a habitation. In other words, the jury

was charged in the disjunctive with respect to the purported burglary of a habitation

and robbery felonies underlying the capital-murder offense. Under the law articulated

in Gardner and Kitchens, this is proper. See Gardner, 306 S.W.3d at 302; see also Kitchens,

823 S.W.2d at 258. The jury was not required to be unanimous on which of the two

underlying felonies appellant was in the course of committing or attempting to commit

when he caused the death of Warren.2 See Gardner, 306 S.W.3d at 302; see also Kitchens,

823 S.W.2d at 258. As such, we cannot say that the jury charge was erroneous. See

Gardner, 306 S.W.3d at 302; Kitchens, 823 S.W.2d at 258; see also Hutch, 922 S.W.2d at 170.

We therefore overrule appellant’s second issue.




        2 In any event, in his brief, appellant relies heavily on the Texas Court of Criminal Appeals’
decision in Ngo v. State to support his contention that the charge in this case was erroneous because it did
not require unanimity with regard to the underlying felonies alleged. See 175 S.W.3d 738, 745, 755 (Tex.
Crim. App. 2005) (en banc). This case is distinguishable from Ngo. In Ngo, the State sought one
conviction for credit-card abuse with evidence that at different times the defendant committed three
different acts that the applicable statute defined as separate criminal offenses and not as means of
committing a single criminal offense. See Ngo, 175 S.W.3d 738, 743. However, in this case, the State
sought one conviction for capital murder, alleging two different acts—burglary of a habitation and
robbery—that section 19.03 of the Texas Penal Code defines as means for committing a single criminal
offense and not as two separate criminal offenses. See TEX. PENAL CODE ANN. § 19.03(a)(2) (West Supp.
2013).

Bukowski v. State                                                                                   Page 15
                         III.   APPELLANT’S STATEMENT TO POLICE

       In his third issue, appellant asserts that the trial court abused its discretion by

failing to suppress his September 21, 2011 written statement, wherein appellant

confessed to being present and taking part in the incident.         Specifically, appellant

argues that his written statement was not voluntary and should have been suppressed.

A.     Applicable Law

       It is the State’s burden to establish 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)

(citing Joseph v. State, 309 S.W.3d 20, 24 (Tex. Crim. App. 2010)). “There are two facets to

any inquiry with respect to the adequacy of a purported waiver of Miranda rights . . . .”

Id.

       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.” Second the waiver must be made “with a full awareness both
       of the nature of the right being abandoned and the consequences of the
       decision to abandon it.”

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

479 U.S. 564, 573, 107 S. Ct. 851, 857, 93 L. Ed. 2d 954 (1987) (footnotes omitted)).

“Before it may be said that a waiver of a Miranda right is involuntary, however, there

must be some element of official intimidation, coercion, or deception.” Leza, 351 S.W.3d

at 349 (citing Colorado v. Connelly, 479 U.S. 157, 169-70, 107 S. Ct. 515, 523, 93 L. Ed. 2d

473 (1986); Oursbourn v. State, 259 S.W.3d 159, 170 (Tex. Crim. App. 2008)). Moreover,

regarding the requirement that the waiver must also be knowing and intelligent, the

United States Supreme Court has noted:

Bukowski v. State                                                                     Page 16
       Once it is determined that a suspect[ ] . . . at all times knew he could stand
       mute . . ., and that he was aware of the State’s intention to use his
       statements to secure a conviction, the analysis is complete and the waiver
       is valid as a matter of law.

Moran v. Burbine, 475 U.S. 412, 422-23, 106 S. Ct. 1135, 1141, 89 L .Ed. 2d 410 (1986). A

waiver is knowingly and intelligently made 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 later in a court of law. Leza, 351

S.W.3d at 350.

       Article 38.22 of the Texas Code of Criminal Procedure provides that, when a

written statement is obtained as a result of custodial interrogation, the statement must

show on its face that: (1) the accused received the required warning; and (2) prior to

and during the making of the statement, the accused knowingly, intelligently, and

voluntarily waived his rights. TEX. CODE CRIM. PROC. ANN. art. 38.22, § 2(a)-(b) (West

Supp. 2013). If these requirements are not met, then the statement is inadmissible. See

id.

       “Article 38.22 requires merely that the accused receive the statutory warnings

before giving a statement.” Brooks v. State, 991 S.W.2d 39, 41 (Tex. App.—Fort Worth

1998, pet. ref’d) (citing TEX. CODE CRIM. PROC. ANN. art. 38.22, § 2(a)). “‘Because a

written statement is not obtained (because it is not admissible) until it is signed, giving

the required warnings before the accused signs the statement meets the statutory

requirements.’” Id. (quoting Dowthitt v. State, 931 S.W.2d 244, 258 (Tex. Crim. App.


Bukowski v. State                                                                       Page 17
1996)). In Garcia v. State, the Texas Court of Criminal Appeals stated that an accused

receives the warnings where they are located at the top of the page above his statement.

919 S.W.2d 370, 386 (Tex. Crim. App. 1996) (op. on reh’g); see Brooks, 991 S.W.2d at 41.

“[T]he appearance of [appellant’s] initials . . . is evidence that he received them.” Garcia,

919 S.W.2d at 386. Moreover, “the presence of a valid waiver of the rights contained in

section 2(a) can be ascertained from considering the totality of an accused’s statement,

and the waiver (required by section 2(b)) is sufficient if it substantially complies with

section 2(b).” Gutierrez v. State, 945 S.W.2d 287, 289 (Tex. App.—San Antonio 1997, no

pet.) (citing Garcia, 919 S.W.2d at 387). A waiver can be inferred from the language

contained in the written statement itself. See, e.g., Smith v. State, AP-75,793, 2010 Tex.

Crim. App. Unpub. LEXIS 582, at *13 (Tex. Crim. App. Sept. 29, 2010) (per curiam)

(citing Garcia, 919 S.W.2d at 385-86).

B.     Discussion

       In this issue, appellant specifically complains about State’s exhibit 1, which is the

written, voluntary statement appellant gave to Johnson County Sheriff’s Office

Detective Leona Yocham. Specifically, appellant contends that the statement was not

voluntary because Detective Yocham only included appellant’s identifying information

on the first page of the seven-page document. Appellant argues that this oversight and

the fact that the video of appellant’s interrogation by police is missing suggests that his

statement was neither voluntary nor knowing. We disagree.

       A review of the seven-page statement shows that appellant provided information

about the incident to Yocham, who documented appellant’s statements on a form

Bukowski v. State                                                                     Page 18
generated by the Johnson County Sheriff’s Office. At the top of the first page of the

document, Yocham included the date and time of the statement and appellant’s

identifying information. Yocham did not include this information on the other six

pages contained in the statement.

       Nevertheless, on each page of the seven-page statement, the following warnings

were provided:

       FIRST[:]  THAT I HAVE THE RIGHT TO REMAIN SILENT AND
       NOT MAKE ANY STATEMENT AT ALL AND THAT ANY STATEMENT
       I MAKE MAY BE USED AGAINST ME AT MY TRIAL[.]

       SECOND[:] THAT ANY STATEMENT I MAKE MAY BE USED AS
       EVIDENCE AGAINST ME AT COURT.

       THIRD[:] THAT I HAVE THE RIGHT TO HAVE A LAWYER
       PRESENT TO ADVISE ME PRIOR TO AND DURING ANY
       QUESTIONING[.]

       FOURTH[:] THAT IF I AM UNABLE TO EMPLOY A LAWYER, I HAVE
       THE RIGHT TO HAVE A LAWYER APPOINTED TO ADVISE ME PRIOR
       TO AND DURING ANY QUESTIONING[.]

       FIFTH[:]  THAT I HAVE THE RIGHT TO TERMINATE THE
       INTERVIEW AT ANY TIME[.]

       PRIOR TO AND DURING THE MAKING OF THIS STATEMENT, I
       HAVE    AND   DO   KNOWINGLY,    INTELLIGENTLY,  AND
       VOLUNTARILY WAIVE THE ABOVE EXPLAINED RIGHTS AND I DO
       MAKE THE FOLLOWING VOLUNTARY STATEMENT TO THE
       AFOREMENTIONED PERSON OF MY OWN FREE WILL AND
       WITHOUT ANY PROMISES OR OFFERS OF LENIENCY OR FAVORS,
       AND WITHOUT COMPULSION OR PERSUASION BY ANY PERSON
       OR PERSONS WHOMSOEVER . . . .

(Emphasis in original). On all of the seven pages of the statement, appellant initialed

the above-mentioned warnings, indicating that he waived his Miranda rights and that


Bukowski v. State                                                               Page 19
his statement was voluntary. Furthermore, each page of the statement also included the

following language after which appellant signed as “SIGNATURE OF PERSON

MAKING VOLUNTARY STATEMENT”:                     “I HAVE READ THIS STATEMENT

CONSISTING OF 7 PAGE(S), EACH PAGE OF WHICH BEARS MY SIGNATURE AND

I DO AFFIRM THAT ALL FACTS AND STATEMENTS CONTAINED HERIN ARE

TRUE AND CORRECT.” (Emphasis in original). This language indicates that the

written statement appellant gave to police comprised seven pages, and appellant’s

identity on each of the pages is clear from the context of the document. Additionally,

appellant’s signature at the bottom of each page as the “SIGNATURE OF PERSON

MAKING VOLUNTARY STATEMENT” combined with his initials regarding the

Miranda warnings at the top of each page sufficiently conveys by a preponderance of

the evidence that appellant understood his constitutional rights and that he knowingly,

intelligently, and voluntarily waived those rights. See TEX. CODE CRIM. PROC. ANN. art.

38.22, § 2(a)-(b); see also Leza, 351 S.W.3d at 349-50. Moreover, appellant does not direct

us to evidence in the record demonstrating official intimidation, coercion, or deception.

See Leza, 351 S.W.3d at 349; see also Oursbourn, 259 S.W.3d at 170.

       Accordingly, a review of the totality of appellant’s written statement

demonstrates that the requirements of article 38.22, section 2(b) were met. See TEX.

CODE CRIM. PROC. ANN. art. 38.22, § 2(b); Garcia, 919 S.W.2d at 386-87; Gutierrez, 945

S.W.2d at 289; see also Smith, 2010 Tex. Crim. App. Unpub. LEXIS 582, at *13. As such,

we cannot say that the trial court abused its discretion by denying appellant’s motion to



Bukowski v. State                                                                   Page 20
suppress State’s exhibit 1. See Crain, 315 S.W.3d at 48; see also Guzman, 955 S.W.2d at 88-

89. We overrule appellant’s third issue.

                                      IV.    HEARSAY

       In his fourth issue, appellant asserts that the trial court abused its discretion in

overruling his hearsay objection to testimony provided by Texas Ranger Michael Don

Stoner. In particular, appellant argues Ranger Stoner’s testimony that Adams told him

that appellant may have wanted to hurt her brother should have been excluded on

hearsay grounds.

A.     Standard of Review

       We review the trial court’s decision to admit or exclude evidence for an abuse of

discretion. De La Paz v. State, 279 S.W.3d 336, 343 (Tex. Crim. App. 2009); McDonald v.

State, 179 S.W.3d 571, 576 (Tex. Crim. App. 2005). “Under an abuse of discretion

standard, an appellate court should not disturb the trial court’s decision if the ruling

was within the zone of reasonable disagreement.” Bigon v. State, 252 S.W.3d 360, 367

(Tex. Crim. App. 2008).

B.     Applicable Law

       With the exception of privileges, the Texas Rules of Evidence do not apply to

suppression hearings because they involve only the determination of preliminary

questions. Graves v. State, 307 S.W.3d 483, 489 (Tex. App.—Texarkana 2010, pet. ref’d)

(citing Granados v. State, 85 S.W.3d 217, 227 (Tex. Crim. App. 2002)). In Granados,

appellant complained that, at the suppression hearing, the trial court erred in admitting

into evidence a police officer’s testimony of what another officer told him about what

Bukowski v. State                                                                   Page 21
the victim’s family said about the victim’s whereabouts.                     Id. at 226-27.      Appellant

claimed that testimony constituted inadmissible hearsay. Id. at 227. The Granados Court

concluded that the officer’s testimony where “he testified as to the facts that

he . . . believed constituted probable cause,” was not hearsay and, thus, admissible. Id.

at 230.    Moreover, the Granados Court noted that the testimony would have been

admissible, even if it had been hearsay, because courts are permitted to rely on hearsay

and other inadmissible evidence in suppression hearings even though it would not

otherwise be admissible at trial. Id. at 227 n.29 (citing United States v. Raddatz, 447 U.S.

667, 679, 100 S. Ct. 2406, 2414, 65 L. Ed. 2d 424 (1980) (“At a suppression hearing, the

court may rely on hearsay and other evidence, even though that evidence would not be

admissible at trial.”)).

        Here, appellant complains about Ranger Stoner’s testimony during a

suppression hearing. Even if Ranger Stoner’s testimony constituted hearsay, because

the Texas Rules of Evidence do not apply to suppression hearings, we cannot say that

the trial court abused its discretion in admitting the testimony.3 See Raddatz, 447 U.S. at

679, 100 S. Ct. at 2414; Granados, 85 S.W.3d at 227; Graves, 307 S.W.3d at 489; see also De

La Paz, 279 S.W.3d at 343; McDonald, 179 S.W.3d at 576.                         As such, we overrule

appellant’s fourth issue.

                                            V.       CONCLUSION

         3 We also question whether the complained-of testimony is really hearsay given that the content

of Ranger Stoner’s testimony about what Adams told him described how appellant became a suspect in
this case. See Lee v. State, 29 S.W.3d 570, 577 (Tex. App.—Dallas 2000, no pet.) (“Police officers may testify
to explain how the investigation began and how the defendant became a suspect.”); see also Zamora v.
State, No. 13-10-00146-CR, 2010 Tex. App. LEXIS 10246, at *22 (Tex. App.—Corpus Christi Dec. 30, 2010,
no pet.) (mem. op., not designated for publication) (same).

Bukowski v. State                                                                                    Page 22
       Having overruled all of appellant’s issues on appeal, we affirm the judgment of

the trial court.




                                              AL SCOGGINS
                                              Justice


Before Chief Justice Gray,
       Justice Davis, and
       Justice Scoggins
Affirmed
Opinion delivered and filed January 9, 2014
Do not publish
[CRPM]




Bukowski v. State                                                              Page 23
