                         COURT OF APPEALS
                         SECOND DISTRICT OF TEXAS
                              FORT WORTH

                              NO. 02-12-00052-CR


RAYMOND PAUL GARNER                                                 APPELLANT

                                        V.

THE STATE OF TEXAS                                                        STATE


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           FROM THE 271ST DISTRICT COURT OF WISE COUNTY

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                        MEMORANDUM OPINION 1

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      A jury convicted Appellant Raymond Paul Garner of possession of four

grams or more but less than 200 grams of methamphetamine, and, upon his

pleas of true to the enhancement paragraphs, the trial court sentenced him to

thirty years’ confinement. Appellant brings a single issue on appeal, arguing that

the trial court reversibly erred by denying his motion to suppress his oral

      1
       See Tex. R. App. P. 47.4.
statement. Because the trial court committed no reversible error, we affirm the

trial court’s judgment.

       At the police station after his arrest, Appellant was taken into a room to be

questioned. The following conversation took place between Appellant and the

police officer:

       Officer:     I’m going to read you your rights, Raymond, since you
                    are in here in custody.

       Appellant:   inaudible statement

       Officer:     I’ll read you your rights, which you may know, I’m going
                    to read them to you anyway. Then me and you are
                    going to talk.

                    You have the right to remain silent. Anything you say
                    can and will be used against you in a court of law. You
                    have the right to talk to a lawyer and to have him
                    present while you are being questioned. If you cannot
                    afford to hire a lawyer, one will be appointed to
                    represent you before any questioning if you wish. And
                    you can decide at any time to exercise these rights and
                    not answer any questions or make any statements. Do
                    you understand that?

       Appellant:   Yeah. (Looking around the room)

After this court abated the appeal and remanded the case to the trial court for the

entry of findings of fact and conclusions of law, the trial court issued the

following:

                               FINDINGS OF FACT

       1.     Appellant was arrested and charged with Possession of a
              Controlled Substance on January 8, 2011.




                                          2
2.   On January 10, 2011, while Appellant was still in custody,
     Wise County Sheriff’s Investigator, Chad Lanier, conducted a
     custodial interview with the Appellant which was both audio
     and video recorded. The recording was admitted in its entirety
     as State’s Exhibit Number 1 (hereinafter referred to as “SX 1”)
     for purposes of the hearing on the Appellant’s Motion to
     Suppress.

3.   SX 1 showed that prior to questioning the Appellant,
     Investigator Lanier informed Appellant he was reading
     Appellant his rights because Appellant was in custody.

4.   SX 1 showed that Investigator Lanier . . . made the following
     statements to the Appellant when he read the Appellant his
     rights:

           a.    You have the right to remain silent;

           b.    Anything you say can and will be used against
                 you in a court of law,

           c.    You have the right to talk to a lawyer and have
                 on[e] present while you are being questioned;

           d.    If you cannot afford to hire a lawyer, on[e] will be
                 appointed to represent you before any
                 questioning if you wish;

           e.    And you can decide at any time to exercise these
                 rights and not answer any questions or make any
                 statements.

5.   SX 1 showed that at the conclusion of reading the Appellant
     his rights, Investigator Lanier asked the Appellant, “Do you
     understand that?”      Appellant audibly responded on the
     recording (SX 1), “Yeah.”

6.   Nothing on the recording (SX1) indicated the Appellant did not
     understand or voluntarily waive his rights before answering
     Investigator Lanier’s questions.

7.   SX 1 showed that after reading the rights, Investigator Lanier
     asked the Appellant a number of questions on different


                                3
     subjects including the facts of the drug offense. Appellant
     answered the questions appropriately and appeared to
     understand the entire conversation.

                    CONCLUSIONS OF LAW

1.   Article 38.22 of the Texas Code of Criminal Procedure,
     Sections 2 and 3, require that for an oral statement of an
     accused resulting from a custodial interrogation to be
     admissible, it must be electronically recorded and the following
     warning must be given to the accused:

           a.    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;

           b.    Any statement he makes may be used as
                 evidence against him in court;

           c.    He has the right to have a lawyer present to
                 advise him prior to and during any questioning;

           d.    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

           e.    He has a right to terminate the interview at any
                 time.

2.   Article 38.22, Section 3(e)(2) provides that the accused must
     be given the warnings outlined above or “it’s fully effective
     equivalent” and that . . . prior to the statement but during the
     recording the accused knowingly, intelligently, and voluntarily
     waive the rights set out in the warning.

3.   Case law confirms that the warning given need not be in the
     exact language of the statute so long as it is in substantial
     compliance with the words of the statute. A differently worded
     warning substantially complies with the required warning if it
     has the same or equivalent meaning.

4.   The warning given to the Appellant by Investigator Lanier had
     the same or equivalent meaning to the warning required by


                                 4
             Article 38.22. The first two warnings required by Article 38.22
             largely overlap and the term “court’’ as used by Investigator
             Lanier is broader than and encompasses the term “trial” which
             was omitted in Lanier’s warning and therefore did not change
             the meaning of the warning. Investigator Lanier’s statement
             that the Appellant had a right “at any time to not answer any
             questions or make any statements[]” was equivalent to the
             omitted warning that the Appellant could terminate the
             interview at any time and did not change the meaning of the
             warning.

      5.     A waiver of rights under the oral confession statute does not
             require an “express verbal statement” that an accused waives
             those rights.      The waiver may be implied through an
             (Appellant’s) silence, coupled with an understanding of his
             rights and a course of conduct indicating waiver. Where the
             prosecution shows that the warnings were given and
             understood by the accused, the accused’s uncoerced
             statement establishes an implied waiver of the right to remain
             silent. The totality of the circumstances under which Appellant
             waived his rights and gave his statement clearly show that the
             waiver was voluntarily given.

      6.     The Appellant’s statements in response to Investigator
             Lanier’s questions as depicted on SX1 were given after
             knowingly, intelligently, and voluntarily waiving the rights
             expressed which were equivalent in meaning to the rights
             required by Article 38.22 and were therefore admissible as
             evidence. [Citations omitted.]

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

bifurcated standard of review. 2 We give almost total deference to a trial court’s

rulings on questions of historical fact and application-of-law-to-fact questions that




      2
        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).



                                         5
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. 3

      Article 38.22, section 3(a) of the Texas Code of Criminal Procedure sets

the terms under which an oral statement given by a defendant may be used.

That subsection provides that

      [n]o oral . . . statement of an accused made as a result of custodial
      interrogation shall be admissible against the accused in a criminal
      proceeding unless . . . prior to the statement but during the recording
      the accused is given the warning in Subsection (a) of Section 2 . . .
      and the accused knowingly, intelligently, and voluntarily waives any
      rights set out in the warning[.] 4

      Section 2(a) of that same article sets out the required warnings that the

accused must receive. That subsection provides that

      the accused, prior to making the statement, [must] either receive[]
      from a magistrate the warning provided in Article 15.17 of [the code
      of criminal procedure] or receive[] 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;

      3
       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).
      4
       Tex. Code Crim. Proc. Ann. art. 38.22, § 3(a)(2) (West Supp. 2013).



                                         6
            (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. 5

Section 3(e) provides,
      The courts of this state shall strictly construe Subsection (a) of this
      section and may not interpret Subsection (a) as making admissible a
      statement unless all requirements of the subsection have been
      satisfied by the state, except that . . . the accused was given the
      warning in Subsection (a) of Section 2 above or its fully effective
      equivalent. 6

      In arguing that he was not properly warned and that he did not intelligently,

knowingly, or voluntarily waive his rights, Appellant contends that from the video,

it appears that he was very confused and that the officer was speaking very

quickly. Appellant also argues that the warnings must strictly comply with the

mandate of article 38.22, section 2(a) and must convey the exact meaning of the

warnings. He relies on State v. Subke, an opinion of our sister court in Dallas. 7

      The Subke court held that “a warning that conveys the exact meaning of

the statute in slightly different language is sufficient to comply with the

requirements of the statute.” 8 Appellant argues that the warnings actually given

did not strictly comply with the mandate of article 38.22 and that they did not

      5
       Id. art. 38.22, § 2(a).
      6
       Id. art. 38.22, § 3(e)(2).
      7
       918 S.W.2d 11, 14 (Tex. App.—Dallas 1995, pet. ref’d) ( op. on reh’g).
      8
       Id.



                                          7
contain the fully effective equivalent of the required warnings. Specifically, the

officer did not state that Appellant had the right to terminate the interview at any

time. Instead, Appellant was told that he could “decide at any time to exercise

these rights and not answer any questions or make any statements.”

Additionally, the officer never informed Appellant that “any statement he makes

may be used against him at his trial.” Instead, the officer informed Appellant that

any statement he made could be used against him in a “court of law.” Appellant

argues that these differences in wording between the statutory warnings and the

warnings actually given are substantive and that therefore no substantial

compliance exists.

        Appellant also argues that he appeared confused while he was being

warned and that that appearance created a question of whether he understood

the warnings as they were read to him. He argues that his responses concerning

the warrants were barely audible and were short statements such as “yeah.”

Appellant additionally argues that the officer did not appear to give him much of

an option as to whether he wanted to give the statement. Instead, the officer told

Appellant that he was giving Appellant the warnings, and then they were going to

talk.    Consequently, Appellant argues, his waiver was not knowingly or

intelligently given.   Appellant argues that his invalid waiver rendered his oral




                                         8
statement inadmissible and that the trial court, therefore, reversibly erred by

denying his motion to suppress. 9

      The State argues that the record shows that the warning given to Appellant

by the officer is the fully effective equivalent of the required warning. We agree.

      The Texas Court of Criminal Appeals has held that substantial compliance

with the required statutory warning is sufficient. 10 We hold that the warning that

Appellant could “decide at any time to exercise these rights and not answer any

questions or make any statements” is substantially equivalent to “terminate the

interview.” 11 An argument could be made that the warning as given is easier to

understand than the phrase “terminate the interview.” Likewise, we hold that

“court at law” used by the officer is substantially equivalent to “trial” in the

statutory warning. 12

      It is better practice to comply with the statute exactly. The legislature has

clearly stated the warnings required to be given and law enforcement personnel

vary from the statutory language at their peril. The warnings actually given in this

case, however, substantially comply with the required warnings. Nothing in the

record shows that Appellant did not understand the warnings and did not

      9
       See State v. Dixon, 206 S.W.3d 587, 590–91 (Tex. Crim. App. 2006).
      10
          Bible v. State, 162 S.W.3d 234, 240 (Tex. Crim. App. 2005).
      11
          See Sosa v. State, 769 S.W.2d 909, 915–16 (Tex. Crim. App. 1989).
      12
          See Bible, 162 S.W.3d at 240–41.



                                         9
knowingly, intelligently, and voluntarily waive his right to remain silent before

answering the officer’s questions.

      Under the facts of this case and the record before us, we hold that the trial

court did not err by finding the warnings adequate and the waiver effective or by

denying Appellant’s motion to suppress the statement and admitting the

statement into evidence. We overrule Appellant’s sole issue and affirm the trial

court’s judgment.


                                                  /s/ Lee Ann Dauphinot
                                                  LEE ANN DAUPHINOT
                                                  JUSTICE

PANEL: LIVINGSTON, C.J.; DAUPHINOT and GABRIEL, JJ.

LIVINGSTON, C.J. and GABRIEL, J. concur without opinion.

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

DELIVERED: June 5, 2014




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