
 NOS. 12-01-00125-CR

          12-01-00126-CR


IN THE COURT OF APPEALS


TWELFTH COURT OF APPEALS DISTRICT


TYLER, TEXAS

STEAVEN RAY WILLIAMS,§
		APPEAL FROM THE 184TH
APPELLANT

V.§
		JUDICIAL DISTRICT COURT OF

THE STATE OF TEXAS,
APPELLEE§
		HARRIS COUNTY, TEXAS
 
	Appellant Steaven Ray Williams ("Appellant") pleaded true to the allegations in the State's
motion to adjudicate guilt and nolo contendere to aggravated robbery after the trial court denied
a motion to suppress his written statement.  In five issues, Appellant challenges the trial court's
denial of his motion to suppress.  We reverse and remand.

Background
 Appellant pleaded guilty to unauthorized use of a vehicle pursuant to a plea agreement in
cause number 762223 in Harris County (appeal number 12-01-00125-CR), and the trial court
assessed punishment at three years of deferred adjudication probation.  Appellant was subsequently
arrested in Harris County for aggravated robbery and indicted in cause number 814815 (appeal
number 12-01-00126-CR).  After his arrest, Appellant gave a written statement in which he
admitted his role in the robbery and described the episode in detail.  The State then filed a motion
to adjudicate guilt in the previous case (cause number 762223), based in part on Appellant's
participation in the robbery.  
	Prior to trial, Appellant filed a motion to suppress in both cause numbers, seeking to
suppress his written statement, which the trial court denied after a hearing.  Appellant subsequently
pleaded true to the allegations in the motion to adjudicate guilt and nolo contendere to aggravated
robbery.  In accordance with the plea agreement, the trial court assessed punishment at ten years
of imprisonment for aggravated robbery and two years for unauthorized use of a vehicle.  As part
of the plea agreement, the court also gave Appellant permission in both cause numbers to appeal
the denial of the motion to suppress.  We consider the cases together on appeal.

Standard of Review
 In reviewing a trial court's ruling on a motion to suppress, we apply a bifurcated standard
of review in which we give almost total deference to a trial court's determination of historical facts. 
Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim. App. 1997).  We afford the same amount of
deference to the trial court's fact findings in questions involving the application of law to the facts,
also known as mixed questions of law and fact, if the resolution turns on an evaluation of the
credibility and demeanor of witnesses.  Id.  However, we review de novo all mixed questions of
law and fact not falling within that category.  Id.  As explained below, the disposition of this appeal
turns on whether a knowing, voluntary, and intelligent waiver of Appellant's rights is shown on
the face of his statement.  Resolution of the issue requires us to construe the language of the
statement and is not dependent on the facts of the case.  We therefore decide the issue as a question
of law and review the trial court's ruling de novo.

 Admissibility of Appellant's Statement
	In his third issue, Appellant contends his statement is inadmissible because it does not
conform to the requirements of Tex. Code Crim. Proc. Ann. art. 38.22, § 2(b)(Vernon 1979).
Specifically, Appellant contends the statement does not show on its face that he knowingly,
intelligently, and voluntarily waived his rights prior to and during the making of the statement. (1) 
We agree.
	The statement of an accused may be used as evidence against him if it appears the statement
was freely and voluntarily made without compulsion or persuasion.  Tex. Code Crim. Proc. Ann.
art. 38.21 (Vernon 1979).  When a written statement is obtained as a result of custodial
interrogation, the statement must show on its face that the accused received the required warning. (2) 
Tex. Code Crim. Proc. Ann. art. 38.22, § 2(a)(Vernon 1979).  The statement must further show
on its face that prior to and during the making of the statement, the accused knowingly,
intelligently, and voluntarily waived the rights set out in section 2(a).  Tex. Code Crim. Proc.
Ann. art. 38.22, § 2(b). (3)  The requirements of both subsections must be satisfied; otherwise, the
statement is inadmissible.  Tex. Code Crim. Proc. Ann. art. 38.22, § 2 (Vernon 1979).  However,
section 2(b) neither prescribes language nor includes guidelines for drafting a provision that is
sufficient to show the required waiver.  As a result, the court of criminal appeals has considered
what constitutes compliance with section 2(b).
	In Garcia v. State, 919 S.W.2d 370 (Tex. Crim. App. 1994), the appellant challenged the
admissibility of his written statement, which included the warning set forth in section 2(a) as well
as the following language immediately above the appellant's signature at the bottom of each page:

	I have read each page of this statement consisting of [#omitted] page(s), each page of which bears
my signature, and corrections, if any bear my initials, and I certify that the facts contained herein are
true and correct.  I further certify that I have made no request for the advice or presence of a lawyer
before or during any part of this statement, nor at any time before it was finished did I request that
this statement be stopped.  I also declare that I was not told or prompted what to say in this
statement.
	[Time, date and signature lines omitted.]


Id. at 379.  The appellant's sole contention was that his statement did not show on its face that he
had knowingly, voluntarily, and intelligently waived his rights as required by section 2(b).  Id. at
378.  The State, however, argued that the appellant demonstrated a waiver of his rights when he
initialed each warning on the statement.  Id.
	On original submission, the court of criminal appeals held that the appellant did not
affirmatively waive his rights by merely initialing each warning on the statement and further held
that section 2(b) mandates an express waiver of each individual right.  Id.  On rehearing two years
later in a plurality opinion, the court reversed its prior decision on whether an express waiver is
necessary and held that substantial compliance with section 2(b) is sufficient.  Id. at 387 (op. on
reh'g).
	To determine whether the appellant's statement showed substantial compliance, the court
considered the totality of the statement.  At the outset, the court noted the appellant received the
required warnings and also stated that his initialing each of the five warnings was evidence that he
received, read, and understood them.  Id. at 386.  In its analysis, the court noted the language in the
paragraph quoted above by which the appellant acknowledged he proceeded without requesting
counsel or seeking to terminate the interview.  Id. That additional language was considered
evidence of reiteration that the appellant understood his rights and that he "knew what he was
doing when he gave his statement."  Id.  
	After determining the face of the statement showed the appellant understood his rights, the
court held that the quoted paragraph "clearly is evidence" of a knowing, voluntary, and intelligent
waiver of his right to counsel before or during his statement and of his right to terminate the
interview at any time.  Id.  The fact that he initialed the provision pertaining to his right to remain
silent, when considered with the language of the quoted paragraph, was deemed sufficient to show
the necessary waiver of that right as well. (4) Id.   Based on that analysis, the court held the language
of the statement in question constituted substantial compliance with section 2(b).  Despite its
holding, however, the court noted the language in the statement before it was "by no means a model
of clarity on this point" and "a close call."  Id. at 387.  The court also stated that the "clearly
preferable practice is for a written statement to meet unambiguously the requirements of Section
2(b)" and included suggested language in its opinion. (5)  Id.
 The court's heavy reliance on the quoted paragraph convinces us that the opinion on
rehearing did not displace its original determination that no affirmative waiver was shown merely
because the appellant initialed each warning on the statement.  If the contrary were true, the court's
analysis of the quoted paragraph would be unnecessary.  Therefore, we conclude that provisions
merely establishing the accused was warned cannot constitute substantial compliance with section
2(b).  From the court's suggested language and its analysis of the appellant's statement, including
the comments about its deficiencies, we further conclude that substantial compliance cannot occur
absent language that specifically relates to the waiver of rights.  That language, when read in the
context of the entire statement, must show that the person making the statement intended to waive
the rights set out in section 2(a).
	In the case at bar, Appellant signed a document entitled "Statement of Person in Custody." 
Six numbered paragraphs appear at the top of the first page of the statement, and the first five of
those paragraphs correspond in numbering and substance to the warning required by section 2(a). 
The sixth paragraph states: "I was further advised that prior to and during the making of a statement
that I had to knowingly and voluntarily waive (Give up) the rights that I was advised that I had as
set out above."  A blank precedes each of the six paragraphs, and Appellant's handwritten initials
appear in each blank.  No other language pertaining to waiver is included in the statement.  The
trial court found that the language of Appellant's statement was in substantial compliance with
section 2.  Appellant disputes that determination and contends the recitation that he was advised
he must waive his rights, without more, is insufficient to show that he did so.   We find no cases
in which an appellate court has reviewed language similar to paragraph 6, and we therefore address
Appellant's contention by examining his statement in light of the plain language of sections 2(a)
and 2(b) and the principles we have derived from Garcia. (6) 
 In Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966), the Supreme
Court addressed the admissibility of statements obtained during custodial interrogation and the
procedures necessary to protect an individual's constitutional privilege against self-incrimination. 
After a comprehensive analysis of the privilege and its history, the Court held that the prosecution
may not use statements stemming from a custodial interrogation of an accused unless it
demonstrates the use of procedural safeguards that protect the privilege against self-incrimination. 
Miranda, 384 U.S. at 444, 86 S. Ct. at 1612.  The Court then prescribed a system of safeguards to
make certain an accused is effectively apprised of his rights and assured a continuous opportunity
to exercise them.  Miranda, 384 U.S. at 467, 86 S. Ct. at 1624. 
	The procedure required by Miranda comprises two distinct components--warning and
waiver.  Miranda, 384 U.S. at 476, 86 S. Ct. at 1629.  The warning informs the person in custody
in clear and unequivocal terms of his right to remain silent and the consequences of forgoing it, his
right to counsel, and his right to appointed counsel if he is indigent.  Miranda, 384 U.S. at 467-69,
86 S. Ct. at 1624-25.  The waiver is an intelligent, knowing, and voluntary relinquishment of the
rights explained in the warning.  Miranda, 384 U.S. at 469, 86 S. Ct. at 1625, 1629.  
	Article 38.22 addresses the admissibility of both oral and written statements and codifies
the safeguards prescribed by Miranda.  The requirement that the face of the statement show both
warning and waiver is in effect a requirement that the document contain formal recitations.  41
George E. Dix & Robert O. Dawson, Texas Practice: Criminal Practice and Procedure §
13.32 (2001).   The guidelines formulated in Garcia are to assist in determining whether specific
recitations comport with legislative intent.  Garcia, 919 S.W.2d at 386. 
	In Appellant's statement, the sentence preceding the required warning on the first page
recites that Appellant "was advised by Sgt. J. Burmester" of the rights or consequences set forth
in the paragraphs that followed.  Appellant initialed each of those paragraphs, including paragraph
6 that  confirmed he "was further advised" he "had to knowingly and voluntarily waive" the rights
he was "advised [he] had."  As used in Appellant's statement, we conclude the word "advised"
means informed or notified, The American Heritage Dictionary 13 (4th ed. 2001), which is
language consistent with warning as explained in Miranda.  However, nothing in paragraph 6
addresses whether Appellant intentionally, knowingly, and voluntarily relinquished the rights of
which he was informed or notified in the warning.  As stated above, we believe Garcia stands for
the proposition that language merely showing an individual was warned cannot constitute
substantial compliance with section 2. (7)  For that reason, we conclude that paragraph 6, standing
alone, does not show that Appellant waived his rights.
	We have not limited our review to the language in paragraph 6, however, but also examined
the totality of Appellant's statement as permitted by Garcia.  In so doing, we found no affirmative
recitation that Appellant waived his rights and no language by which Appellant acknowledges he
gave his statement without attempting to exercise them.  In fact, we found no language at all
relating to the issue of whether Appellant waived his rights.  Because of that omission, the language
of Appellant's statement as a whole falls far short of that examined in Garcia and cannot constitute
substantial compliance with section 2.
	The only suggestion on the face of the statement that Appellant possibly waived his rights
is that he in fact gave the statement.  The Court in Miranda addressed the issue of presuming
waiver of the privilege against self-incrimination and emphasized such a presumption is
impermissible under the following circumstances:

 [A] valid waiver will not be presumed simply from the silence of the accused after
warnings are given or simply from the fact that a confession was in fact eventually
obtained.  A statement we made in Carnley v. Cochran, 369 U.S. 506, 516, 82 S.
Ct. 884, 890 (1962) is applicable here:

			Presuming waiver from a silent record is impermissible.  The
record must show, or there must be an allegation and evidence
which show, that an accused was offered counsel but
intelligently and understandingly rejected the offer.  Anything
less is not waiver.


Miranda, 384 U.S. at 475, 86 S. Ct. at 1628.  From our reading of section 2,  we believe the
Legislature incorporated the rule expressed by the Court in Miranda and did not intend for us to
presume waiver from a "silent statement." We therefore decline to do so.
	We acknowledge that as a result of our decision, a statement determined by the trial court
to have been voluntarily given is inadmissible.  However, we are bound to faithfully follow the
specific text that was adopted.  Boykin, 818 S.W.2d at 785.  In deciding the issue before us, we
heed the admonition of the court of criminal appeals that " [w]here the statute is clear and
unambiguous, the Legislature must be understood to mean what it has expressed, and it is not for
the courts to add or subtract from such a statute."  Coit v. State, 808 S.W.2d 473, 475 (Tex. Crim.
App. 1990).  We therefore conclude that section 2 plainly declares the inadmissibility of a written
statement that does not contain language of both warning and waiver. Because Appellant's
statement is not in substantial compliance with that requirement as we interpret the court's decision
in Garcia, we hold that the trial court erred in denying Appellant's motion to suppress. 
Accordingly, we sustain Appellant's third issue.
 
Harm Analysis
	Having determined that the trial court improperly denied Appellant's motion to suppress,
we must conduct a harm analysis to determine whether the error requires reversal of the judgment. 
Tex. R. App. P. 44.2.  If the error is constitutional, we reverse unless we determine beyond a
reasonable doubt that the error did not contribute to Appellant's conviction or punishment.  Tex.
R. App. P. 44.2(a).  If the error is not constitutional, we disregard the error if it does not affect
Appellant's substantial rights.  Tex. R. App. P. 44.2(b).  
	Article 38.22 of the Texas Code of Criminal Procedure prescribes various requirements that
must be satisfied before the statement of an accused is admissible at trial.  The failure to meet those
requirements does not mean the statement was necessarily obtained as a result of a legal or
constitutional violation.  Davidson v. State, 25 S.W.3d 183, 186 n.4 (Tex. Crim. App. 2000). 
Therefore, compliance with article 38.22 is not a constitutional issue, and we conduct the harm
analysis required by rule 44.2(b).  Moore v. State, 999 S.W.2d 385, 402 (Tex. Crim. App. 1999),
cert. denied, 530 U.S. 1216, 120 S. Ct. 2220, 147 L. Ed. 2d 252 (2000) (applying non-constitutional harm analysis to violation of article 38.22).
	To determine whether the error affects Appellant's substantial rights, we must decide
whether the error had a substantial and injurious effect on the outcome of the case.  See King v.
State, 953 S.W.2d 266, 271 (Tex. Crim. App. 1997).  Applying that rule when, as here, a
conviction occurs after a negotiated plea, we determine whether the error had a substantial and
injurious effect or influence on Appellant's decision to enter pleas in both cases rather than proceed
to trial.  If we have grave doubt about whether the error affected the outcome, we must treat the
error as if it did.  Fowler v. State, 958 SW.2d 853, 865 (Tex. App.--Waco 1997), aff'd, 991
S.W.2d 258 (Tex. Crim. App. 1999). We make our determination from reviewing the entire record. 
Johnson v. State, 43 S.W.3d 1, 4 (Tex. Crim. App. 2001).
	Appellant entered pleas in both cases after consultation with his attorney, and the record
is predictably silent about the factors that contributed to his decision.  In addition, the record
contains little that will assist us in evaluating the strength of the State's case or learning what
additional evidence would have been introduced against Appellant at trial.  However, the record
contains other information that provides insight into the dilemma Appellant faced once the trial
court denied the motion to suppress.  
	From our review of the record, we note that Appellant gave his statement on the same day
as his arrest and without the assistance of counsel.  In his statement, Appellant admitted that he and
two others, Buddha and Terry Lyn, had been going out at night stealing rims for about three weeks
prior to the incident in question.  On the evening of the robbery, Appellant stated that he called
Buddha and asked him to take him to put some money down on a car.  Buddha and Terry Lyn
picked up Appellant and another male friend named McCray, who wanted to stop at a local
shopping mall to look for some rims.
	When they arrived at the mall, McCray spotted a Lexus and planned to "jack [the owner]
up for the car so he could get the rims."  Shortly after they spotted the car, McCray saw two males
and a female approach the Lexus.  McCray then jumped out and demanded the car. One of the men
ran, and  McCray shot his gun six or seven times.  The female was wounded and died several hours
later.  When Appellant asked McCray why he shot the victim instead of walking off, McCray
replied, "The dude shouldn't had ran.  He should have give me the keys to the car."  Appellant also
stated that he asked McCray if he was going to see the victim in the hospital and, upon learning of
her death, asked McCray if he was going to the funeral.
	The record further shows that Appellant was subsequently indicted for aggravated robbery,
which is a first degree felony punishable by five years to ninety-nine years or life and a fine up to
$10,000.  Appellant had previously received three years of deferred adjudication probation on a
charge of unauthorized use of a vehicle.  Upon revocation, his possible sentence was from six
months to two years in a state jail facility and a maximum fine of up to $10,000.  
	Appellant's statement was the only evidence he sought to suppress.  At the hearing on the
motion, Appellant's attorney forcefully argued the statement was inadmissible.  He was careful to
preserve error during the hearing and to secure permission to appeal the court's denial of the
motion. After the court's ruling on the motion, Appellant reached a plea agreement with the State,
which included agreed punishment and permission to appeal the court's ruling on the motion to
suppress.  At the hearing on the pleas, Appellant's attorney agreed that Appellant stipulated the
witnesses would testify to the elements of aggravated robbery and that his statement would be
admitted into evidence.  However, the attorney also stated that the stipulation was signed subject
to the objections raised in the motion to suppress.
	In summary, Appellant admitted his role, albeit a relatively minor one, in an aggravated
robbery that resulted in the death of one of the victims.  He also admitted he participated in a series
of thefts that occurred within three weeks prior to the robbery and revealed comments made after
the robbery that seem rather flippant in light of the gravity of the offense.  Those same comments
could also be interpreted as showing a lack of remorse.  He entered his pleas only after the trial
court decided his statement was admissible, but was granted permission to appeal the court's ruling
pursuant to a plea bargain.  Throughout the proceedings, Appellant's attorney reiterated his
objections to the court's ruling on the motion to suppress and informed the court that Appellant's
compliance with the plea agreement was subject to those objections.
	When we consider the contents of the confession and the possible range of punishment for
the aggravated robbery, we see little if any choice that Appellant had, once his statement was
deemed admissible, but to accept the State's offer in both cases.  From the severity of the possible
punishment, the timing of Appellant's pleas, and the continued emphasis Appellant's attorney
placed on the denial of the motion to suppress, we conclude the trial court's error had a substantial
and injurious effect on Appellant's decision to enter pleas in both cases rather than proceed to trial. 
Therefore, the error is harmful and reversible error.

 Conclusion
	Based upon our review of the record, we conclude that the trial court erred in denying
Appellant's motion to suppress. (8)  We further conclude that the trial court's error affects Appellant's
substantial rights and is therefore reversible error.  The judgment of the trial court is reversed and
both causes are remanded to the trial court for proceedings consistent with this opinion.

   LEONARD DAVIS  
								 Chief Justice

Opinion delivered January 16, 2002.
Panel consisted of Davis, C.J., Worthen, J., and Griffith, J.


(PUBLISH)
1.  This issue addresses only the facial showing required by Tex. Code Crim. Proc. Ann. art. 38.22, § 2(b). 
Whether Appellant's statement was voluntary is a separate issue.
2.  No written statement made by an accused as a result of custodial interrogation is admissible as evidence
against him in any criminal proceeding unless it is shown on the face of the statement that:

	(a)   the accused, prior to making the statement, either received from a magistrate the warning provided in
Article 15.17 of this code or received from the person to whom the statement is made a warning that:

		(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; 

		(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.

Tex. Crim. Proc. Ann. art. 38.22, § 2(a).
3.  No written statement made by an accused as a result of custodial interrogation is admissible as evidence
against him in any criminal proceeding unless it is shown on the face of the statement that:

	. . .
 
	(b) the accused, prior to and during the making of the statement, knowingly, intelligently, and voluntarily waived
the rights set out in the warning prescribed by Subsection (a) of this section.

Tex. Code Crim. Proc. Ann. art. 38.22, § 2(b).
4.  As Judge Keller noted in her concurring opinion, section 2(a) identifies four rights susceptible to waiver by
an accused:  (1) the right to remain silent, (2) the right to a lawyer, (3) the right to have a lawyer appointed, and (4) the
right to terminate the interview at any time.  Garcia, 919 S.W.2d at 404 (Keller, J., concurring).
5.  The court suggested that the following language be placed near or adjacent to the signature of the individual
giving the statement: "I knowingly, voluntarily and intelligently waive the rights described above before and during the
making of this statement."  Garcia, 919 S.W.2d at 387.
6.  Because the language of sections 2(a) and 2(b) is clear and unambiguous, we focus on the plain language and
what the Legislature has expressed.  Boykin v. State, 818 S.W.2d 782, 785 (Tex. Crim. App. 1991).
7.  Although not the basis of our holding, we are also concerned that paragraph 6 was included as a part of the
required warning and not in a separate section of the statement as suggested in Garcia.  The placement of paragraph 6,
along with the admonition that Appellant "had to" waive his rights prior to and during his statement, could easily have
caused Appellant to misunderstand the true nature of "waiver" and interpret the language as a directive.
8.  Because our decision on Appellant's third issue is dispositive, we do not address the other issues raised by
Appellant.  Tex. R. App. P. 47.1.

