                          COURT OF APPEALS
                          SECOND DISTRICT OF TEXAS
                               FORT WORTH

                               NO. 02-11-00336-CR


RAUDEL PADILLA                                                        APPELLANT

                                         V.

THE STATE OF TEXAS                                                          STATE


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      FROM CRIMINAL DISTRICT COURT NO. 1 OF TARRANT COUNTY

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                         MEMORANDUM OPINION1

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                                 I. INTRODUCTION

      A jury convicted Appellant Raudel Padilla of aggravated kidnapping and

assessed his punishment at forty years’ confinement.         In four points, Padilla

argues that the evidence is insufficient to support his conviction, that the trial

court erred by not suppressing his oral statement, and that the trial court abused

its discretion by denying his rule 403 objections. We will affirm.
      1
       See Tex. R. App. P. 47.4.
                                 II. BACKGROUND

      A man arrived at Maria Chavez’s house sometime in the afternoon on

November 16, 2010, and claimed to have been sent there by Chavez’s husband

to perform a painting job. Chavez did not know the man, nor did she recognize

the blue truck that was parked outside. When Chavez attempted to call her

husband, the man said, “No,” and grabbed the phone from her.               The two

struggled briefly before another man showed up, displayed a knife, instructed

Chavez to “shut up,” and escorted her to the blue truck, where another man was

inside. Chavez and the three men drove for thirty or forty minutes before arriving

at a “little room” in the woods. Once inside, the men put Chavez in a chair and

taped her mouth shut and her hands to the chair. At some point, the men left,

and Chavez managed to escape from the room and run until she found help.

      Chavez explained to the police what had happened, and the police

searched the area and discovered a blue truck parked in a pasture and what

appeared to be a campfire burning nearby.           The officers announced their

presence, noticed at least one person run, approached the site, and located one

person hiding underneath a trailer.      Authorities later found a storage shed

nearby, a chair inside of the shed with tape still on it, tape in the bed of the blue

truck, and a folding knife inside of the truck. Police arrested Padilla about a

month later, and he gave detectives a statement implicating himself in the

kidnapping.

                           III. EVIDENTIARY SUFFICIENCY


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      In his first point, Padilla argues that the evidence is insufficient to support

his conviction for aggravated kidnapping because although Chavez testified that

Padilla had a knife, “[a] knife was never recovered from [him].”

      In our due-process review of the sufficiency of the evidence to support a

conviction, we view all of the evidence in the light most favorable to the verdict to

determine whether any rational trier of fact could have found the essential

elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S.

307, 319, 99 S. Ct. 2781, 2789 (1979); Isassi v. State, 330 S.W.3d 633, 638

(Tex. Crim. App. 2010).

      A person commits aggravated kidnapping if he intentionally or knowingly

abducts another person and uses or exhibits a deadly weapon during the

commission of the offense. Tex. Penal Code Ann. § 20.04(b) (West 2011). A

deadly weapon is “anything that in the manner of its use or intended use is

capable of causing death or serious bodily injury.” Id. § 1.07(a)(17)(B) (West

Supp. 2012).

      Here, Chavez testified that a knife was held to her side when she was

escorted from her house to the blue truck and during the entire thirty- or forty-

minute ride in the truck. Chavez identified a photograph of the blue truck that

authorities discovered parked in the pasture as the same blue truck that she rode

in with a knife held to her side, and investigators found a folding knife inside the

truck. A detective testified that a knife is a deadly weapon. We hold that the




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evidence is sufficient to support Padilla’s conviction for aggravated kidnapping,

and we overrule his first point.

                             IV. MOTION TO SUPPRESS

      In his second point, Padilla argues that the trial court erred by denying his

motion to suppress his oral statement. Referencing his argument at trial that a

detective coerced, enticed, or induced him to give the statement, Padilla

contends—citing both state and federal caselaw—that “[t]he ultimate question is

whether the suspect’s will was overborne” and that “[i]n this case, it was.”2

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

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

Crim. App. 2007); Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim. App. 1997).

We give almost total deference to a trial court’s rulings on questions of historical

fact and application-of-law-to-fact questions that turn on an evaluation of

credibility and demeanor, but we review de novo application-of-law-to-fact

questions that do not turn on credibility and demeanor. Amador, 221 S.W.3d at

673; Estrada v. State, 154 S.W.3d 604, 607 (Tex. Crim. App. 2005); Johnson v.

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


      2
         The trial court made findings of fact and conclusions of law, which
included the following: “Approximately 20 minutes after the interview began,
Detective Rohloff told the defendant that if he talked, the DA could file the
charges, reduce the charges or dismiss the charges. Approximately 20 minutes
after . . . starting the interview, the defendant started talking about the instant
offense”; “The defendant was not coerced to give a statement”; “The defendant
was not enticed to give a statement”; “The statement was voluntarily made.”


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      A.    State Grounds

      The statement of an accused may be used in evidence against him

provided it was “freely and voluntarily made without compulsion or persuasion.”

Tex. Code Crim. Proc. Ann. arts. 38.21 (West 2005). Courts use the following

four-prong test when evaluating whether police made an improper inducement to

an accused, rendering a confession inadmissible: (1) a promise of some benefit,

(2) that is positive, (3) that is made or sanctioned by someone in authority, and

(4) that is of such character as would likely influence the defendant to speak

untruthfully. Martinez v. State, 127 S.W.3d 792, 794 (Tex. Crim. App. 2004).

      A detective interviewing Padilla told him the following just before he

implicated himself in the kidnapping:

             When it goes over to the DA’s office and goes to court[,] they
      may lower that charge. They may drop the charges against you, but
      that’s up to the DA’s office if they drop charges against you or if they
      are going to file on you or stick you in prison.

The detective’s statements that the district attorney’s office may ultimately lower

or drop the charges against Padilla did not improperly entice or induce him to

confess because the detective did not make a positive promise of leniency or

claim to have the authority to have the charges against Padilla reduced or

dropped. See id. Under the circumstances, the detective’s comments merely

advised Padilla about several of the possibilities of giving a truthful statement.

See, e.g., Herrera v. State, 194 S.W.3d 656, 659–60 (Tex. App.—Houston [14th

Dist.] 2006, pet. ref’d) (holding that police statement to defendant, “[w]e can talk



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to the D.A., get you an offer, if you can help us,” was not an improper

inducement).

          Padilla references code of criminal procedure article 38.22 in his argument,

but the record demonstrates that he was advised of and waived his Miranda

rights.

          B.    Federal Grounds

          The determination of whether a confession is voluntary is based on an

examination of the totality of the circumstances surrounding its acquisition. See

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

confession is involuntary if circumstances show that the defendant’s will was

“overborne” by police coercion. Creager v. State, 952 S.W.2d 852, 856 (Tex.

Crim. App. 1997).       In other words, the statement is involuntary if the record

reflects “official, coercive conduct of such a nature” that any statement obtained

thereby is “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).        Here, there is no evidence that Padilla’s will was

overborne by any police coercion.

          We hold that the trial court did not err by denying Padilla’s motion to

suppress his oral statement. Accordingly, we overrule Padilla’s second point.




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                             V. RULE 403 OBJECTIONS

      In his third and fourth points, Padilla argues that the trial court abused its

discretion by overruling his rule 403 objections to the admission in evidence of

(1) the folding knife found in the blue truck and (2) the testimony of Katherine

Martinez.

      Once a rule 403 objection is made, the trial court must weigh the probative

value of the evidence to determine if it is substantially outweighed by its potential

for unfair prejudice. Santellan v. State, 939 S.W.2d 155, 169 (Tex. Crim. App.

1997). A rule 403 balancing test includes the following factors: (1) the inherent

probative force of the proffered item of evidence along with (2) the proponent’s

need for that evidence against (3) any tendency of the evidence to suggest

decision on an improper basis, (4) any tendency of the evidence to confuse or

distract the jury from the main issues, (5) any tendency of the evidence to be

given undue weight by a jury that has not been equipped to evaluate the

probative force of the evidence, and (6) the likelihood that presentation of the

evidence will consume an inordinate amount of time or merely repeat evidence

already admitted. Gigliobianco v. State, 210 S.W.3d 637, 641–42 & n.8 (Tex.

Crim. App. 2006).      The rules of evidence favor the admission of relevant

evidence and carry a presumption that relevant evidence is more probative than

prejudicial. Jones v. State, 944 S.W.2d 642, 652 (Tex. Crim. App. 1996), cert.

denied, 522 U.S. 832 (1997).




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      Here, the probative value of the knife was high because it supported the

State’s allegation that the kidnapping was aggravated, and there was little or no

danger of confusion of the issues, misleading the jury, undue delay, or needless

presentation of cumulative evidence. Thus, the trial court could have reasonably

weighed each of the Gigliobianco factors in favor of admission.

      Regarding Martinez, she testified that she lives near Padilla, that she

overheard Padilla talking about a kidnapping, that Padilla brought her two checks

that belonged to Chavez’s husband and that were made out to her, that Padilla

asked her to cash the checks, and that she cashed the checks. The record

shows that Chavez never identified Padilla as one of the three men who

kidnapped her.     Thus, Martinez’s testimony about the checks was highly

probative to identify Padilla as one of the three men who had participated in the

kidnapping. As with the knife, the trial court could have reasonably weighed

each of the Gigliobianco factors in favor of admitting Martinez’s testimony about

the checks.

      Padilla argues that the trial court failed to conduct the rule 403 balancing

test before admitting the knife and Martinez’s testimony, but a trial judge is

presumed to engage in the required balancing test once rule 403 is invoked, and

the judge is not required to sua sponte place any findings or conclusions made

into the record. See Williams v. State, 958 S.W.2d 186, 195–96 (Tex. Crim. App.

1997). Thus, the law does not demand what Padilla complains about.




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      We hold that the trial court did not abuse its discretion by overruling

Padilla’s rule 403 objections. Therefore, we overrule Padilla’s third and fourth

points.

                                VI. CONCLUSION

      Having overruled each of Padilla’s four points, we affirm the trial court’s

judgment.




                                                 BILL MEIER
                                                 JUSTICE

PANEL: GARDNER, MCCOY, and MEIER, JJ.

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

DELIVERED: October 11, 2012




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