                             COURT OF APPEALS
                              SECOND DISTRICT OF TEXAS
                                   FORT WORTH


                                    NOS. 2-08-458-CR
                                         2-08-459-CR
                                         2-08-460-CR
                                         2-08-461-CR


JERRY EUGENE MILLER, II                                                     APPELLANT

                                             V.

THE STATE OF TEXAS                                                                STATE

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             FROM THE 43RD DISTRICT COURT OF PARKER COUNTY

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                                        OPINION

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                                      I. Introduction

          Appellant Jerry Eugene Miller, II argues the trial court should have granted his

motions to suppress evidence. In two points, Appellant argues that the arrest and

search warrants were not supported by probable cause and that his videotaped

statement was taken after his illegal arrest and was not voluntarily given. W e will

affirm.
                           II. Procedural Background

      Appellant was charged in four separate indictments with felony theft offenses:

two indictments alleged theft over $20,000 but less than $100,000,          and two

indictments alleged theft over $1,500 but less than $20,000. See Tex. Penal Code

Ann. § 31.03(e)(4)–(5) (Vernon Supp. 2009). By filing motions to suppress in each

of the four cases, Appellant sought to suppress “all evidence seized” by challenging

the probable cause supporting his arrest and search warrants and the voluntariness

of his videotaped statement. The trial court denied each of Appellant’s motions to

suppress after conducting two evidentiary hearings. Appellant thereafter entered a

plea of nolo contendere to each of the charged offenses. Pursuant to the plea

agreement, the trial court deferred an adjudication of Appellant’s guilt and placed

him on ten years’ community supervision in two cases and five years’ community

supervision in the other two cases. These appeals followed.

                             III. Standard of Review

      W e 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). W e 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


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S.W .3d 604, 607 (Tex. Crim. App. 2005); Johnson v. State, 68 S.W .3d 644, 652–53

(Tex. Crim. App. 2002). W e must uphold the trial court’s ruling if it is supported by

the record and correct under any theory of law applicable to the case even if the trial

court gave the wrong reason for its ruling. State v. Stevens, 235 S.W .3d 736, 740

(Tex. Crim. App. 2007); Armendariz v. State, 123 S.W .3d 401, 404 (Tex. Crim. App.

2003), cert. denied, 541 U.S. 974 (2004).

                               IV. Appellant’s Arrest

      Appellant contends in part of his first point that the trial court should have

granted his motion to suppress because the arrest warrant affidavit did not establish

probable cause. The State counters that, even if the arrest warrant is invalid, the

arresting officers witnessed Appellant commit an offense in their presence and could

have validly arrested Appellant without a warrant.

      “A peace officer may arrest an offender without a warrant for any offense

committed in his presence or within his view.” Tex. Code Crim. Proc. Ann. art.

14.01(b) (Vernon 2005); State v. Steelman, 93 S.W .3d 102, 107 (Tex. Crim. App.

2002). The test for probable cause for a warrantless arrest under article 14.01(b) is

“whether at that moment the facts and circumstances within the officer’s knowledge

and of which he had reasonably trustworthy information were sufficient to warrant a

prudent man in believing that the arrested person had committed or was committing

an offense.” Steelman, 93 S.W .3d at 107 (quoting Beverly v. State, 792 S.W .2d

103, 105 (Tex. Crim. App. 1990)).


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      Here, the officers could have validly arrested Appellant because the truck he

was driving at the time of his arrest was stolen. Investigator James Peel testified at

the suppression hearing that he knew the truck Appellant was driving at the time of

his arrest was stolen because Investigator Kevin Hilliard had described the truck as

stolen and two or three named informants in custody had described the stolen truck

to investigators. Investigator Hilliard similarly testified that the officers on the scene

knew the vehicle Appellant was driving had been stolen; Michael Brooks had

previously informed Investigator Hilliard that Appellant was currently driving a stolen

Dodge truck and that Appellant had taken the VIN plate from a Dodge truck he

owned and placed it onto the stolen Dodge truck he was driving. And Investigator

Hilliard had previously seen a Dodge truck on Appellant’s property with a missing

VIN plate. This reasonably trustworthy information gave the officers probable cause

to arrest Appellant without a warrant for committing the offenses of theft,

unauthorized use of a motor vehicle, or tampering with vehicle identification

numbers. See Tex. Penal Code §§ 31.03, .07(a) (Vernon 2003), .11(a) (Vernon

Supp. 2009); Brown v. State, 986 S.W .2d 50, 52 (Tex. App.—Dallas 1999, no pet.)

(holding computer database report indicating vehicle was stolen provided officers

with probable cause to make warrantless arrest of driver).

      Because the arresting officers witnessed Appellant commit at least one

offense in their presence, the officers could have validly arrested Appellant without

a warrant. See Tex. Code Crim. Proc. Ann. art. 14.01(b); Tex. Penal Code §§ 31.03,


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.07(a), .11(a). Therefore, we need not decide whether Appellant’s arrest warrant

provided the magistrate with sufficient information to support an independent

judgment that probable cause existed for the warrant. See Tex. R. App. P. 47.1.

W e overrule this portion of Appellant’s first point.

                          V. The Three Search Warrants

      Appellant argues in the remainder of his first point that the three search

warrants were not based on probable cause. In deciding whether to address the

merits of an appeal from the denial of a motion to suppress, we must first identify the

fruits that the trial court declined to suppress. Gonzales v. State, 966 S.W .2d 521,

524 (Tex. Crim. App. 1998). If it is not clear from the testimony and exhibits what the

“fruits” are, then we need not address the merits of the claim. Id.

      In this case, Appellant’s motions sought to suppress “certain items [that] were

allegedly seized” and “any evidence obtained pursuant to the warrants.” Appellant’s

brief in this court similarly states that he sought to suppress “all evidence seized” in

his four cases. Nowhere, though, has Appellant identified the specific items of

evidence or categories of evidence he sought to exclude by challenging the three

search warrants. Appellant has therefore presented nothing for our review. See

Brennan v. State, 140 S.W .3d 779, 781 (Tex. App.—Houston [14th Dist.] 2004, pet.

ref’d) (holding global request to suppress “all evidence seized or obtained” from

alleged illegal searches and failure “to identify what, if any, evidence was ruled upon




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by the denial” presented nothing for appellate review). W e overrule the remainder

of Appellant’s first point.

                       VI. Appellant’s Videotaped Statement

       Appellant argues in his second point that the trial court erred by denying his

motion to suppress his oral and written statements. Specifically, Appellant contends

that his videotaped statement should have been suppressed because it was taken

after his illegal arrest and was not freely and voluntarily given.

       A. Legality of Appellant’s Arrest

       Appellant first contends his videotaped statement should be suppressed

because it was taken after his illegal arrest.      W e held above, however, that

Appellant’s arrest was not illegal because Appellant committed an offense in the

officers’ presence. W e therefore overrule this portion of Appellant’s second point.

       B. Voluntariness of Appellant’s Statement

       Appellant also argues that his videotaped statement should have been

suppressed because it was not voluntarily given. Specifically, Appellant contends

his statement was involuntary because he was held in “a solitary, brutally cold cell

for several hours” without food and water and because investigators allegedly made

promises to him during the interrogation. The trial court found that the “[s]tatements

made by [Appellant] were voluntary and not the result of coercive police activity nor

were they given as a result of improper promises made by police officers.”

              1.     Applicable Law

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      An accused’s statement is admissible evidence if the accused made it freely

and voluntarily and without compulsion or persuasion. Tex. Code Crim. Proc. Ann.

art. 38.21 (Vernon 2005). W hen deciding whether a statement was voluntary, we

consider the totality of the circumstances in which the statement was obtained.

Creager v. State, 952 S.W .2d 852, 855 (Tex. Crim. App. 1997); Reed v. State, 59

S.W .3d 278, 281 (Tex. App.—Fort W orth 2001, pet. ref’d).            A confession is

involuntary if circumstances show that the defendant’s will was “overborne” by police

coercion. Creager, 952 S.W .2d at 856. The defendant’s will may be “overborne” if

the record shows that there was “official, coercive conduct of such a nature” that a

statement from the defendant was “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); Frank v. State, 183 S.W .3d 63, 75 (Tex.

App.—Fort W orth 2005, pet. ref’d).

      If a promise made by a person in authority induced a confession, then that

confession is inadmissible. Penry v. State, 903 S.W .2d 715, 748 (Tex. Crim. App.),

cert. denied, 516 U.S. 977 (1995); Alvarez v. State, 649 S.W .2d 613, 620 (Tex. Crim.

App. 1982), cert. denied, 464 U.S. 849 (1983). But before a promise will render a

confession inadmissible, the promise must be shown to have induced the confession

because it was positive for the defendant, made or sanctioned by someone in

authority, and of such an influential nature that the appellant might speak untruthfully

in response. Muniz v. State, 851 S.W .2d 238, 254 (Tex. Crim. App.), cert. denied,


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510 U.S. 837 (1993). In our review, we look to whether the circumstances of the

promise would reasonably induce a defendant to admit to a crime he did not commit.

Sossamon v. State, 816 S.W .2d 340, 345 (Tex. Crim. App. 1991), abrogated on

other grounds by Graham v. State, 994 S.W .2d 651 (Tex. Crim. App. 1999).

             2.     Analysis

      Appellant argues that the condition of his detention rendered his videotaped

statement involuntary. Appellant testified at the suppression hearing that he was

kept in a cold cell for ten hours without a blanket, food, or water.         However,

Investigator Jody Johnson testified that he did not recall Appellant complaining on

the day of the interview about the conditions of the jail or saying that he was cold or

hungry.    And Investigator Hilliard testified that he interviewed Appellant

approximately four hours after he was arrested. Given this conflicting testimony, the

voluntariness of Appellant’s videotaped statement involved the trial court’s evaluation

of credibility and demeanor. See Stewart v. State, No. 04-08-00274-CR, 2009 W L

2183397, at *6 (Tex. App.—San Antonio July 21, 2009, pet. ref’d) (mem. op., not

designated for publication) (holding trial court did not err by finding oral statements

voluntarily given when trial court heard conflicting evidence concerning the

appellant’s alleged deprivation of food, water, medication, or bathroom access over

the course of twelve hours). Deferring as we must to the trial court’s determination

of credibility and demeanor, we hold the trial court did not abuse its discretion by

finding the conditions of Appellant’s detention did not render his videotaped


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statement involuntary. See Bell v. State, 169 S.W .3d 384, 391–92 (Tex. App.—Fort

W orth 2005, pet. ref’d) (holding eight hours of questioning while in handcuffs and leg

shackles did not render confession involuntary where appellant never indicated he

did not want to answer any more questions or wanted to speak to attorney and never

requested food, water, or bathroom breaks).

      Appellant also argues that his oral statements were involuntary because

investigators made the following “promises” to him during the interview: (1) telling

Appellant he was arrested because he “blew off” investigators after they asked him

to help recover the stolen property; (2) offering to make Appellant’s arrests on other

charges more convenient by allowing him to turn himself in or be arrested for several

charges at one time; (3) offering to not mention Appellant’s girlfriend (his alibi

witness) to his wife when they questioned her about Appellant’s crimes; (4) telling

Appellant that telling the truth is “a start” for how to get out of trouble but

simultaneously saying they were not making any promises to Appellant; (5) offering

to ask the district attorney to drop the charges for a motorcycle theft but also stating

the investigator could not promise the district attorney would agree to drop the

charges; and (6) telling Appellant they would not arrest him on other charges

immediately but instead would give him time to gather other stolen property before

they arrested him again. W e do not believe any of these alleged promises rendered

Appellant’s videotaped statement involuntary.




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      Appellant testified at the suppression hearing that he did not initiate the

interview with the investigators and that he understood the investigators told him

during the interview that the other cases they might file against him would “go away”

if he “worked with” the investigators. On the other hand, Investigator Johnson

testified that Appellant initiated the interview by asking to speak with him. Consistent

with Investigator Johnson’s testimony, the videotape shows that Investigator

Johnson stepped into the room at the beginning of the interview and stated, “They

said you wanted to talk to me.” The videotape also shows that investigators read

Appellant his Miranda rights and that Appellant acknowledged he understood his

rights. See Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602 (1966).

      Appellant also testified that officers promised to dismiss charges against him

if he cooperated with them, but the videotaped interview does not corroborate

Appellant’s testimony. Investigator Ricky Montgomery did tell Appellant during the

interview that he would ask the district attorney to dismiss the charges against

Appellant on the stolen motorcycle case if he helped them recover the stolen

generator and other stolen property, but Investigator Montgomery simultaneously

told Appellant that he could not promise Appellant anything, that the district attorney

would decide whether to dismiss any charges, and that it was not Investigator

Montgomery’s decision to make. Moreover, the videotaped interview shows that the

investigators repeatedly told Appellant he would in fact be charged in several cases

but that they would make the process as convenient for him as they could if he would


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help them recover the stolen property. For example, Investigator Hilliard offered to

call Appellant once the cases were filed so Appellant could arrange for bond before

he was arrested and possibly spend little to no time in jail before bonding out. But

Investigator Hilliard also told Appellant that he did not have the authority to dismiss

cases.

         Given the explicit representations of lack of authority to dismiss charges, we

do not believe the investigators’ statements or offers were of such a nature that

Appellant might speak untruthfully in response. See Johnson, 68 S.W .3d at 654–55

(holding defendant’s confession voluntary where defendant initiated discussion of

a deal to avoid death penalty, detective told defendant the police could make no

guarantees, and detective indicated “police were without authority to make deals but

instead could only relay information to the court and prosecutor”). After viewing the

record in the light most favorable to the trial court’s ruling and deferring as we must

to the trial court’s credibility determinations, we cannot say the trial court erred by

finding that Appellant’s oral statements were voluntarily given. See Sossamon, 816

S.W .2d at 345 (stating a promise must, among other things, be “of such character

as would be likely to influence the defendant to speak untruthfully” before it will

render a confession involuntary). W e overrule the remainder of Appellant’s second

point.

                                    VII. Conclusion




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     Having overruled each of Appellant’s two points, we affirm the trial court’s

judgments.




                                           BILL MEIER
                                           JUSTICE

PANEL: DAUPHINOT, MCCOY, and MEIER, JJ.

PUBLISH

DELIVERED: April 15, 2010




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