                    In The
              Court of Appeals
Sixth Appellate District of Texas at Texarkana


                  No. 06-19-00094-CR



          KORY ALLEN BATTIEST, Appellant

                           V.

           THE STATE OF TEXAS, Appellee



          On Appeal from the 6th District Court
                Lamar County, Texas
                Trial Court No. 28050




      Before Morriss, C.J., Burgess and Stevens, JJ.
      Memorandum Opinion by Chief Justice Morriss
                                         MEMORANDUM OPINION
            During the investigation of Kory Allen Battiest on allegations of aggravated sexual assault

of a seven-year-old child, Battiest agreed to take a polygraph examination, during which he

confessed to the offense.              On appeal from his conviction, his sentence of seventy years’

imprisonment, and a $10,000.00 fine, 1 Battiest argues that his confession was involuntary, due to

his recent use of drugs and alcohol and sleep deprivation, and that the trial court thus erred in

overruling his motion to suppress the confession.

            After reviewing the transcript from the suppression hearing and the trial court’s written

findings, we find no abuse of discretion in the trial court overruling Battiest’s suppression motion.

However, because the trial court’s judgment fails to reflect Battiest’s plea and the jury’s finding

that the State’s enhancement allegation was true, we modify the trial court’s judgment to reflect

these facts. As modified, the trial court’s judgment is affirmed.

(1)         The Trial Court Did Not Abuse Its Discretion in Overruling the Suppression Motion

            It is undisputed that Battiest volunteered to come to the Paris Police Department to take a

polygraph examination administered by Bryan Luley, a Senior Special Agent for the United States

Department of Justice, Office of the Inspector General, and that Luley engaged in a noncustodial

interview. 2 It is also undisputed that Battiest was informed of his constitutional and statutory rights




1
    Battiest pled true to the State’s enhancement allegation.
2
Due to their inherent unreliability, “references to a polygraph test, or to its results, are inadmissible for all purposes.”
Martinez v. State, 272 S.W.3d 615, 626 (Tex. Crim. App. 2008).

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and was given proper Miranda 3 and Article 38.22 4 warnings, both before and after he admitted

sexual contact with the child and said he had “placed his tongue on her vagina on one occasion.”

Yet, Battiest argues that his confession to Luley and subsequent confession to Chris Bean, a

detective with the Paris Police Department, were not freely and voluntarily given, because “he was

under the influence of substantial illegal drugs and alcohol and was deprived of sleep.” After the

suppression hearing, the trial court concluded otherwise.

           A trial court’s ruling on a motion to suppress is reviewed on appeal for an abuse of

discretion. Crain v. State, 315 S.W.3d 43, 48 (Tex. Crim. App. 2010). We give almost total

deference to the trial court’s determination of historical facts that turn on credibility and demeanor.

Brodnex v. State, 485 S.W.3d 432, 436 (Tex. Crim. App. 2016); Cochran v. State, 563 S.W.3d

374, 378 (Tex. App.—Texarkana 2018, no pet.). We review de novo all mixed questions of law

and fact that do not turn on credibility or demeanor. Brodnex, 485 S.W.3d at 436; Cochran, 563

S.W.3d at 378. When the trial court makes explicit findings of fact, the evidence is viewed in the

light most favorable to its ruling, and we determine whether the findings are supported by the

evidence. Valtierra v. State, 310 S.W.3d 442, 447 (Tex. Crim. App. 2010). We affirm the trial

court’s “decision if it is correct on any theory of law that finds support in the record.” Cochran,

563 S.W.3d at 378 (citing Osbourn v. State, 92 S.W.3d 531, 538 (Tex. Crim. App. 2002)).

            “When the voluntariness of a confession is challenged, the trial court must make an

independent determination in the absence of the jury as to whether the statement was voluntarily


3
    See Miranda v. Arizona, 384 U.S. 436 (1966).
4
    See TEX. CODE CRIM. PROC. ANN. art. 38.22.
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made.” Simpson v. State, 67 S.W.3d 327, 332 (Tex. App.—Texarkana 2001, no pet.) (citing

Jackson v. Denno, 378 U.S. 368, 380 (1964); see TEX. CODE CRIM. PROC. ANN. art. 38.22, § 6).

“At [such a] hearing, the State has the burden under the Fifth and Fourteenth Amendments of

proving by a preponderance of the evidence that the confession was voluntary.” Id. (citing Lego

v. Twomey, 404 U.S. 477, 489 (1972); Alvarado v. State, 912 S.W.2d 199, 211 (Tex. Crim. App.

1995)).     Sleep deprivation or “[i]ntoxication, while relevant, does not render a confession

involuntary per se.” Id. (citing Jones v. State, 944 S.W.2d 642, 651 (Tex. Crim. App. 1996)); see

Douglas v. State, 489 S.W.3d 613, 632 (Tex. App.—Texarkana 2016, no pet.). Instead, we ask

whether these factors “rendered [the maker] incapable of making an independent, informed

decision to confess.” Douglas, 489 S.W.3d at 632 (quoting Jones, 944 S.W.2d at 651); see

Simpson, 67 S.W.3d at 332. “We evaluate whether the statement was voluntary by examining the

totality of the circumstances.” Douglas, 489 S.W.3d at 632.

          At the suppression hearing, Battiest testified that he remembered scheduling the interviews

with Bean, agreeing to take a polygraph test, and presenting himself at the Paris Police Department

on time for the interviews. He claimed, however, that he did not remember the interviews because

he was habitually using methamphetamine, marihuana, “Thc dab,” Seroquel, and Xanax. Battiest

claimed he drank “[u]p to about 30” sixteen-ounce beers on the night before the interviews and

had been awake for three days and three nights.

          Luley testified that, although Battiest volunteered for the interview, Luley provided Battiest

with a form informing him that (1) he had the right to remain silent, (2) anything he said could be

used again him in court, (3) he had the right to speak to a lawyer for advice before questioning and

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could have a lawyer present during questioning, (4) he had the right to a court-appointed lawyer if

he could not afford one, and (5) he had the right to stop the questioning at any time. Luley testified,

and the form showed, that Battiest initialed his acknowledgment of each right. Battiest also

initialed the following statements:

         I have read this statement of my rights and it has been read to me. I understand
         what my rights are. I voluntarily waive my rights and I am willing to answer
         questions at this time. No promises have been made to me. No threat of coercion
         has been used against me.

Luley testified that Battiest signed the form in his presence. In addition to this form, Battiest also

signed a voluntary polygraph examination form representing that he was in “good mental and

physical condition and kn[ew] of no mental or physical problem which [could] impair [his] ability

to be examined.”

         To document Battiest’s medical suitability to take the polygraph examination, Luley

administered a medical questionnaire. 5 In response, Battiest said that he consumed twelve beers

the night before the interview and a “small bowl” of marihuana the morning of the interview.

Battiest also reported that he was injured as a result of a recent fight he had had that morning, had

only slept three hours, and had, at some point in the past, consulted a doctor about suicidal thoughts

and bipolar, attention deficit, and depression disorders. After the medical questionnaire, Battiest

believed he was unfit to take the polygraph examination because of the physical pain he was in as

a result of the fight.




5
 The medical questionnaire dealt with the twenty-four hours immediately preceding the interview. Luley testified that
he did not ask about drug use outside of the twenty-four-hour period and did not ask how Battiest had slept in the last
three or four nights.
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        Yet, Battiest admitted to Luley that he had sexual contact with the child. Luley testified

that Battiest responded to questions in an appropriate and timely manner and recalled the details

of actions, as well as when and where the offense occurred. As a result of Battiest’s admission,

Bean conducted a separate, custodial recorded interview with Battiest. Both Bean’s testimony and

the recording showed that Battiest was again given warnings under Article 38.22 and Miranda,

said he understood his Constitutional and statutory rights, and waived them before providing

details of the sexual assault.

        Luley and Bean, who had both discussed Battiest’s drug history with him, clarified that

Battiest did not indicate he had ingested anything other than marihuana or alcohol in the twenty-

four-hour period before the interviews. Luley also testified that Battiest never said he had

consumed methamphetamine, Xanax, or Seroquel. According to Luley, Battiest did not appear to

be hung over. Bean testified that, based on his thirty-three years of experience in law enforcement,

Battiest was not under the influence of alcohol or drugs at the time of the interviews. Bean also

said that Battiest did not claim to be deprived of sleep and had no difficulty understanding or

answering questions. Luley and Bean testified they had no indication that Battiest was under the

influence of any drug or alcohol, operating on “diminished capacity,” incapable of waiving his

rights, or incapable of understanding the consequences of his waivers.

        After the trial court reviewed Battiest’s recorded interview with Bean, it found Battiest was

not sleep deprived or under the influence of drugs or alcohol and was “very lucid.” As a result, it

concluded that Battiest “understood his right against self-incrimination but clearly waived that

right.” The trial court entered written findings of fact and conclusions of law supporting its

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decision to overrule the suppression motion. In its written findings, the trial court noted that

Battiest looked up at the camera, did not have slurred speech, was coherent, and was able to “recall

the fact he kissed [the victim’s] vagina, what clothes the victim was wearing, his body position

when he did it as well as what he allegedly didn’t do.” The trial court found that Battiest “spoke

at numerous times about drugs and his use of them,” but never claimed to be “under [the] current

influence of narcotics.” It also wrote that Battiest’s weeping before the interview and question to

Bean regarding whether he was going to jail on that day indicated he understood the consequences

of his confession.

       We find that the recorded interview, along with Luley’s and Bean’s testimony, supported

the trial court’s conclusions that (1) Battiest was not intoxicated or sleep deprived such that he was

incapable of making an independent, informed decision to confess, (2) Battiest “knowingly,

intelligently, and voluntarily” waived his Constitutional and statutory rights, and (3) Battiest’s

confession was freely and voluntarily made. Because the trial court did not abuse its discretion in

overruling Battiest’s suppression motion, we overrule Battiest’s point of error.

(2)    We Modify the Trial Court’s Judgment

       The record demonstrates, however, that the trial court’s judgment must be modified. The

judgment of conviction in this case states, in part, “1st Enhancement Paragraph: N/A” and

“Findings on 1st Enhancement Paragraph: N/A.” The record clearly reflects, however, that Battiest

pled true to the State’s habitual-offender enhancement allegation and that the jury was instructed

to and did find this allegation true, thereby enhancing Battiest’s punishment from a minimum range




                                                  7
of five years’ imprisonment to a minimum range of fifteen years’ imprisonment. See TEX. PENAL

CODE ANN. §§ 12.32(a), 12.42(c).

       We have the authority to modify a judgment to make it speak the truth, even if a party does

not raise the problem. TEX. R. APP. P. 43.2; French v. State, 830 S.W.2d 607, 609 (Tex. Crim.

App. 1992); Rhoten v. State, 299 S.W.3d 349, 356 (Tex. App.—Texarkana 2009, no pet.). “Our

authority to reform incorrect judgments is not dependent on the request of any party, nor does it

turn on a question of whether a party has or has not objected in trial court; we may act sua sponte

and may have a duty to do so.” Rhoten, 299 S.W.3d at 356 (citing Asberry v. State, 813 S.W.2d

526, 531 (Tex. App.—Dallas 1991, pet. ref’d)); see French, 830 S.W.2d at 609.

       We modify the trial court’s judgment to reflect that Battiest pled true to the State’s

enhancement allegation and that the jury found the enhancement allegation true. As modified, the

trial court’s judgment is affirmed.



                                             Josh R. Morriss, III
                                             Chief Justice

Date Submitted:        September 19, 2019
Date Decided:          October 10, 2019

Do Not Publish




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