Opinion issued August 30, 2012.




                                      In The

                              Court of Appeals
                                     For The

                          First District of Texas
                           ————————————
                              NO. 01-11-00367-CR
                            ———————————
              BRANDON ANTWOINE WILLIAMS, Appellant
                                        V.
                      THE STATE OF TEXAS, Appellee



               On Appeal from the 300th Judicial District Court
                           Brazoria County, Texas
                        Trial Court Case No. 62,072



                          MEMORANDUM OPINION

      A jury found appellant, Brandon Antwoine Williams, guilty of the offense

of murder,1 and the trial court assessed his punishment at confinement for life with


1
      See TEX. PENAL CODE ANN. § 19.02 (Vernon 2011).
a $10,000 fine. In three issues, appellant contends that the trial court erred in

denying his motion to suppress evidence and admitting irrelevant and extraneous-

offense evidence.

      We affirm.

                                   Background

      Lake Jackson Police Department (“LJPD”) Officer R. Welch testified that

on the morning of April 18, 2010, he was dispatched to the Fisherman’s Wharf

apartment complex where “possible shots” had been fired. Upon his arrival,

Welch found several bullet casings and, after further investigation, discovered

eight bullet holes in the door to one of the apartments.        After entering the

apartment, Welch saw the body of the complainant, Richard Morgan, on the floor.

Welch noted that the complainant had suffered several gunshot wounds.

      LJPD Detective K. Stanford, who was dispatched to investigate the death of

the complainant, testified that upon his arrival at the apartment, he noted that the

complainant’s body was approximately three feet from the door. And his gunshot

wounds “match[ed] up” with the “bullet holes through the door.” Stanford opined

that the complainant was “possibly standing . . . to look through the peephole”

when he was shot.      After examining eight bullet casings found outside the

apartment, Stanford determined that the assailant had used “[s]ome kind of high-

powered rifle.”

                                         2
      Stanford contacted the complainant’s sister, Tiffany Morgan, who directed

him to speak with the complainant’s girlfriend, Emily Terrell. Terrell directed

Stanford to appellant’s cousin, Quentin Williams, and appellant’s friend Jake

Sohrt, Quentin’s roommate.        Sohrt recommended that Stanford speak with

appellant. Appellant told Stanford that his friends, Corey Sanders and Rickel

Baker, were in possession of the firearms used in the complainant’s murder.

Stanford used appellant’s cellular telephone to contact Baker in an effort to obtain

the firearms.   Baker and Sanders eventually led Stanford to a “shed in the

backyard of [a] vacant house,” in which Stanford found a “pistol-grip shotgun”

and an “AK-47” or “military-type rifle.” Stanford determined that the AK-47 was

registered to appellant and it contained bullets “similar to the projectiles . . .

recovered from [the complainant’s] home.”

      Stanford obtained a warrant to search appellant’s car, in which he seized a

notebook containing “rap lyrics” and a target for shooting practice. The State then

offered into evidence State’s Exhibit number 40, a bag containing both the

notebook and the target. Appellant objected to its admission “based on improper

chain of custody and also the relevance.” The State argued that the chain of

custody was proper and, “[a]s to the relevancy, . . . it’s target practicing and . . .

rap lyrics that involve killing people.” The trial court, finding the contents of




                                          3
State’s Exhibit number 40 to be more probative than prejudicial and the chain of

custody satisfied, overruled appellant’s objection and admitted the evidence.

      Clute Police Department (“CPD”) Officer R. Carlton testified that he

interviewed appellant as part of the homicide investigation. Carlton initially read

to appellant his legal rights, and appellant terminated the interview.          Later,

however, appellant “reinitiated contact” with Carlton because he wanted to tell

“his side of the story.” Appellant stated that Quentin had been planning on

“shooting” the complainant through his “front door” because he was “supposedly

seeing his ex-girlfriend,” Terrell. Quentin used appellant’s firearm to shoot the

complainant, and appellant later disposed of the firearm.

      Some time after Carlton had interviewed appellant, CPD Officer S. Harris

interviewed appellant a second time. Before trial, appellant filed a motion to

suppress any statements that he made during the second interview with Harris,

alleging that his statements were coerced in violation of the United States

Constitution,2 the Texas Constitution,3 and the Texas Code of Criminal

Procedure.4




2
      See U.S. CONST. amend. XIV.
3
      See TEX. CONST. art. I, § 9.
4
      See TEX. CODE CRIM. PROC. ANN. art. 38.22 (Vernon 2005).
                                         4
      At a pre-trial hearing on appellant’s motion to suppress the statements,

Officer Harris testified that, after he had read to appellant his legal rights,

appellant wanted to “tell his side of the story.” At first, appellant “repeatedly”

claimed that Quentin shot the complainant and appellant was not with him during

the shooting. Harris eventually told appellant,

      You’re already charged. There’s no difference except for to show
      some remorse and maybe they won’t seek the death penalty. Show
      no remorse, continue—continue to lie, why would the DA—the DA
      not want to? Tell me why they wouldn’t want to seek the maximum
      punishment for someone who shows no remorse and does not want to
      tell the truth when they are caught.

Harris admitted that he did not “have any facts” regarding the case, had not

spoken with anyone from the District Attorney’s office, and did not know how the

District Attorney’s office planned to proceed against appellant. Harris mentioned

the death penalty to appellant because he did not think that appellant “completely

understood the severity of the crime that he was charged with.” Harris did not

make any other statements about the death penalty.       At another point in the

interview, Harris told appellant that gunshot residue testing had been performed

on Quentin and the results from the test were negative. Harris admitted, however,

that he had not yet received the test results.

      Approximately thirty to forty-five minutes after Harris had mentioned the

death penalty, appellant admitted that he, not Quentin, had shot the complainant.

Harris opined that appellant’s admission was not a reaction to Harris’s statements
                                           5
regarding the death penalty or the gunshot residue test. Rather, Harris noted that

appellant did not change his story until after Harris had asked whether, if

appellant’s “mother was put in the same position[,] . . . wouldn’t [appellant] want

his mother to know exactly what happened and who killed her son.” Harris

concluded that appellant’s admission “had nothing to do with the mention of the

death penalty or the mention of the gunshot residue testing.”

      The trial court denied appellant’s motion to suppress his statements,

specifically finding that:

      In considering the totality of the circumstances of the interviews that
      were reviewed and offered — State’s Exhibit 1, 2, and 3 — I will find
      that there is no causal connection between the tactics that were
      utilized by law enforcement in conducting the interview and the actual
      statement that was given.

      But considering the defendant’s demeanor, the actions that you can
      see on the video, and the personal characteristics of [appellant] in
      watching the video, that he clearly understood what was going on
      during this subsequent interview with Detective Harris, and that there
      was no intimidation as a result of the tactics that were used.

      The only information that was forthcoming after the comment was
      used with regard to, what am I going to tell the mother of the alleged
      victim in this case? And that it was not a result of intimidation,
      coercion, or deception by any of the officers that were involved. And
      the motion is denied.

The trial court also made written findings on appellant’s motion, stating that there

was no coercion “as a result of the interrogation tactics used to obtain the

statement” given to Harris. The trial court then admitted into evidence appellant’s

                                         6
recorded oral admission to Harris and his written statement. In the recording,

appellant admitted that he knocked on the complainant’s door and fired his AK-47

when he heard the complainant reach the front door. He also knew that the bullets

fired from an AK-47 could penetrate a bullet-proof vest.

      Sohrt testified that on April 17, 2010, he returned to his apartment and

found Quentin and appellant watching a movie. After Sohrt went to his bedroom,

Quentin entered the bedroom to show Sohrt a firearm. Quentin then showed Sohrt

a map of the Fisherman’s Wharf apartment complex and stated that he was going

to drop appellant off at the complex, where appellant was to shoot the

complainant. Quentin and appellant left for the complainant’s apartment about

two hours later. On cross-examination, Sohrt testified that Quentin had been

“upset” when Terrell began dating the complainant and had directed “angry” and

“threatening” comments towards the complainant. The day after the shooting,

Quentin told Sohrt that they had “followed through with his plan,” and he asked

Sohrt to “lie to the police, if need be.”

      Sanders testified that appellant, who was his friend and co-worker, had

visited Sanders’s house and asked him to “hold some weapons for him,” including

the AK-47 identified as the firearm used against the complainant, because

appellant “had murdered somebody.” Sanders refused the request, and appellant

then called Baker to hide the weapons. When Detective Stanford called Sanders

                                            7
and inquired about the location of the firearms, Sanders contacted Baker. The two

then led Stanford to the vacant house where the firearms were located. Sanders

also testified that in the course of working with appellant he had heard appellant

“offer to handle someone else’s problems” on “many occasions.” As an example,

he recalled an incident in which appellant, when visiting Sanders’s house,

approached two of his neighbors, produced a firearm, and told them, “Hey, if you

got any problems, I’ll take care of it for you.”

                           Voluntariness of Statements

        In his first issue, appellant argues that the trial court erred in denying his

motion to suppress the statements given to Officer Harris because they were

“the product of threats and coercion” and not “freely and voluntarily made without

compulsion or persuasion.”

      We review a ruling on a motion to suppress evidence for an abuse of

discretion. Shepherd v. State, 273 S.W.3d 681, 684 (Tex. Crim. App. 2008). We

generally consider only the evidence adduced at the suppression hearing unless

the parties consensually re-litigate the issue at trial, in which case we also consider

relevant trial testimony. Rachal v. State, 917 S.W.2d 799, 809 (Tex. Crim. App.

1996). We give almost total deference to a trial court’s determination of historical

facts, especially if those determinations turn on witness credibility or demeanor,

and review de novo the trial court’s application of the law to facts not based on an

                                          8
evaluation of credibility and demeanor. Neal v. State, 256 S.W.3d 264, 281 (Tex.

Crim. App. 2008). At a suppression hearing, a trial court is the sole and exclusive

trier of fact and judge of the witnesses’ credibility. Maxwell v. State, 73 S.W.3d

278, 281 (Tex. Crim. App. 2002). Accordingly, a trial court may choose to

believe or to disbelieve all or any part of a witnesses’ testimony. State v. Ross, 32

S.W.3d 853, 855 (Tex. Crim. App. 2000). When the trial court makes findings of

fact with its ruling on a motion to suppress, an appellate court does not engage in

its own factual review but determines only whether the record supports the trial

court’s factual findings. Romero v. State, 800 S.W.2d 539, 543 (Tex. Crim. App.

1990). Unless a trial court abuses its discretion in making a finding not supported

by the record, we will defer to the trial court’s fact findings and not disturb the

findings on appeal. Cantu v. State, 817 S.W.2d 74, 77 (Tex. Crim. App. 1991).

      “A statement of an accused may be used in evidence against him if it

appears that the same was freely and voluntarily made without compulsion or

persuasion.” TEX. CODE. CRIM. PROC. ANN. art. 38.21 (Vernon 2005). When

considering whether a statement was voluntarily made, 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).

      A defendant’s statement is involuntary if circumstances show that the

defendant’s will was overborne by police coercion. Id. at 856. The defendant’s

                                         9
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.” See Alvarado v. State, 912 S.W.2d 199, 211 (Tex. Crim. App. 1995).

      Appellant first asserts that Harris “falsely implied that the DA’s office

would be considering the death penalty.”        Appellant concedes that Harris’s

statement regarding the death penalty was not a “promise” but argues that it was

“tantamount to a death threat” and “constituted coercion.”

      A misrepresentation made by a police officer to a suspect during an

interrogation is a relevant factor to consider in assessing whether the suspect’s

statement was made voluntarily, but, standing alone, it is insufficient to render an

otherwise voluntary statement inadmissible. Frazier v. Cupp, 394 U.S. 731, 739,

89 S. Ct. 1420, 1424–25 (1969). The misrepresentation must be viewed in the

context of the totality of the circumstances. Id. Some types of police deception

employed during custodial interrogation that are designed to elicit a statement

from an accused are constitutionally permissible. See id. The focus is on whether

the behavior of the State’s law enforcement officials was such as to overbear the

will of the accused and bring about a statement not freely determined. Rogers v.

Richmond, 365 U.S. 534, 544, 81 S. Ct. 735, 741 (1961).




                                        10
      Appellant characterizes Officer Harris’s statement regarding the death

penalty as “trickery” or “deception” because it “falsely” implied that the death

penalty was applicable to appellant’s circumstances. However, Harris testified

that the facts of the case had not yet been fully developed and he did not know

whether appellant could be charged with capital murder. And Harris explained

that he mentioned the death penalty to appellant not to deceive him, but to have

him recognize the “severity” of the offense. Under these circumstances, the trial

court could have interpreted Harris’s statement not as a misrepresentation but as

recognition of the death penalty as a possible punishment for certain homicides

and that appellant could receive leniency if he cooperated. See Espinosa v. State,

899 S.W.2d 359, 362–64 (Tex. App.—Houston [14th Dist.] 1995, pet. ref’d)

(concluding that police officer’s statement that “[e]verything will be better” for

defendant if he confessed was only suggestion of leniency and did not render

statement involuntary); see also Buzan v. State, No. 14-02-00452-CR, 2002 WL

31890099, at *1 (Tex. App.—Houston [14th Dist.] Dec. 31, 2002, no pet.) (not

designated for publication) (holding that trial court could have concluded police

officer did not make misrepresentation regarding defendant’s eligibility for

probation where police officer’s statement could be construed as “the punishment

applicable to the offense generally and not to the particular circumstances” of

defendant).

                                       11
      Appellant also asserts that Officer Harris “added to [his] discomfiture by

lying to him about negative results of gunshot residue tests run on the co-

defendant’s hands in order to give the impression that police had more evidence

than they really had.” The State concedes that Harris made a misrepresentation

concerning the gunshot residue tests, but argues that it did not render the

appellant’s statement involuntary.

      Of the numerous types of police deception, misrepresentation relating to an

accused’s connection to a crime can be the least likely to render a statement

involuntary. Green v. State, 934 S.W.2d 92, 100 (Tex. Crim. App. 1996). It has

been noted that “[i]nflating evidence of [a defendant’s] guilt interfere[s] little, if at

all, with his ‘free and deliberate’ choice of whether to confess” because it does not

“lead him to consider anything beyond his own beliefs regarding his actual guilt

or innocence, his moral sense of right and wrong, and his judgment regarding the

likelihood that the police had garnered enough valid evidence linking him to the

crime.” Id. (quoting Holland v. McGinnis, 963 F.2d 1044, 1052 (7th Cir. 1992));

Weaver v. State, 265 S.W.3d 523, 534 (Tex. App.—Houston [1st Dist.] 2008, pet.

ref’d). Here, Officer Harris’s misrepresentation concerning the gunshot residue

tests related to appellant’s connection to the crime. Harris testified that appellant

did not appear to react to the statement. And the record shows that appellant did

not admit to the shooting until later in the interview, when Harris asked whether

                                           12
appellant would want his mother to know “exactly what happened to him” if he

were ever murdered. We cannot conclude that the trial court abused its discretion

in finding that appellant was not coerced into making his statements to Harris.

Accordingly, we hold that the trial court did not err in denying appellant’s motion

to suppress his statements made to Officer Harris.

      We overrule appellant’s first issue.

                              Admission of Evidence

      In his second issue, appellant argues that the trial court abused its discretion

in admitting evidence of his “bad character trait of offering to handle the problems

of other people by using a firearm” and “a specific extraneous bad act to

demonstrate this character trait.” In his third issue, appellant argues that the trial

court abused its discretion in admitting into evidence the notebook containing

“gangsta rap lyrics” allegedly written by appellant because it “had no relevance

apart from character conformity” and “any probative value it did have was clearly

outweighed by the danger of unfair prejudice.”

      We review a trial court’s decision to admit or exclude evidence under an

abuse of discretion standard. Rodriguez v. State, 203 S.W.3d 837, 841 (Tex.

Crim. App. 2006). Therefore, we will not reverse a trial court’s ruling as long as

it is within the “zone of reasonable disagreement.” Id.




                                         13
Extraneous Offense

      At trial, Sanders testified that on “many occasions” he had seen appellant

produce a firearm and “offer to handle someone else’s problems.”          He also

testified about a specific incident in which he saw appellant approach two of his

neighbors, produce a firearm, and say, “Hey, if you got any problems, I’ll take

care of it for you.” Appellant objected to the testimony as “not relevant” and as

evidence of “extraneous bad acts that have nothing to do with this case.” The trial

court overruled the objection, held the evidence admissible “because of the nature

of the defense,” and explained,

      I’ll provide an instruction in the jury charge for the extraneous and
      find that it is—that particular issue with regard to getting into other
      people’s beef—is more probative than prejudicial as it goes to the
      plan and the scheme that’s involved with regard to this particular
      matter.

      Evidence of extraneous offenses is not admissible to prove the character of

a person in order to show that he acted in conformity therewith. TEX. R. EVID.

404(b); Powell v. State, 63 S.W.3d 435, 438 (Tex. Crim. App. 2001). However,

such evidence may be admissible for other purposes, such as proof of motive,

opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake

or accident. TEX. R. EVID. 404(b). Evidence of an extraneous offense is also

admissible to rebut a defensive theory. Ransom v. State, 920 S.W.2d 288, 301




                                        14
(Tex. Crim. App. 1994); Isenhower v. State, 261 S.W.3d 168, 180 (Tex. App.—

Houston [14th Dist.] 2008, no pet.).

      Appellant argues that the State, not appellant, first made the argument that

appellant did not shoot the complainant or lacked a motive to shoot the

complainant because the State introduced into evidence appellant’s first interview

with Officer Carlton, in which appellant stated that Quentin committed the

shooting. However, appellant, in his opening statement, repeatedly raised the

theory that Quentin had shot the complainant and only Quentin had a motive to

shoot the complainant. For example, appellant’s trial counsel stated,

      You’re going to hear a lot of things about how [appellant] had
      absolutely no motive whatsoever to be involved in this. You’re going
      to hear that this was—there was this long ongoing affair between [the
      complainant] and [appellant’s] cousin, Quentin Williams. You’re
      going to hear that Quentin Williams had a real vendetta against him.
      This has gone on for a very long time. All of the motive in this case
      was on Quentin Williams.

      ....

      You’re going to hear about—talking about [appellant] going back to
      work. You’re also going to hear that [Williams] fled to Temple
      shortly thereafter.

      ....

      There is absolutely zero, zilch, nada evidence—scientific evidence—
      to show that [appellant] was actually the person who was involved in
      this. Nothing.




                                        15
      Before appellant’s statements to Officer Carlton were admitted into

evidence, appellant also cross-examined the complainant’s sister, eliciting

testimony that Quentin had “an obsession” with Terrell, followed her to the

complainant’s apartment, and threatened the complainant. Thus, evidence that

appellant, while producing a firearm, had offered to “take care” of other people’s

problems was relevant to rebut appellant’s contention that only Williams had a

motive to shoot the complainant. See, e.g., Bass v. State, 270 S.W.3d 557, 563

(Tex. Crim. App. 2008) (holding that State was permitted to use extraneous

offense to rebut defensive theory presented in opening statement that complainant

had fabricated her testimony).

      Appellant further argues that, even if Sanders’s testimony was relevant

“apart from character conformity, the Rule 403 factors weigh against admission”

because his testimony was more prejudicial than probative.

      The trial court has the discretion to exclude extraneous offense evidence if

it finds that the evidence’s probative value is substantially outweighed by the

danger of unfair prejudice. See Montgomery v. State, 810 S.W.2d 372, 387 (Tex.

Crim. App. 1990). In conducting this balancing test, the trial court should analyze

several factors, including, but not limited to, the probativeness of the proffered

evidence, as well as the proponent’s need for the extraneous evidence to establish

a fact of consequence. See id. at 389–90. On appeal, appellant now argues that

                                        16
the evidence was not probative because he was “clearly guilty” and “the State had

an abundance of evidence” to prove appellant had shot the complainant, such as

appellant’s statements and the testimony of Sohrt regarding Quentin’s plan for

appellant to shoot the complainant. However, at trial, appellant disputed this

evidence, arguing, as he does in this appeal, that his statements were not reliable

due to alleged threats and coercion used by the police officers and noting that

Sohrt spoke only with Quentin about the plan to shoot the complainant. And, as

stated above, the evidence was probative to rebut appellant’s defense that only

Quentin, and not appellant, had a motive to harm the complainant.

      Accordingly, we hold that the trial court did not abuse its discretion in

admitting Sanders’s testimony that appellant, while producing a firearm, offered

to “take care” of other people’s problems.

Admission of Notebook

      In regard to the notebook, the State offered, through the testimony of

Detective Stanford, State’s exhibit number 40, a bag containing both a “target”

and the notebook, in which numerous violent “rap lyrics” were written. After

eliciting, on voir dire, that Stanford was not “the first person to touch this piece of

evidence” and Stanford was unsure which police officer had made indentifying

marks on the bag, appellant then objected to the exhibit “based on improper chain

of custody and also the relevance.” The State argued that it had established proper

                                          17
chain of custody and, “[a]s to the relevancy,” “it’s targeting practicing on this

one” and “there are rap lyrics that involve killing people.” When the State

mentioned the lyrics, appellant objected, arguing, “We’re getting into stuff that’s

not even in evidence.” The trial court overruled appellant’s objections.

      In order to preserve a complaint for appellate review, the record must show

that the complaining party gave the trial court an opportunity to rule on the

complaint by presenting that complaint to the trial court in a specific and timely

objection. See TEX. R. APP. P. 33.1(a); Geuder v. State, 115 S.W.3d 11, 13 (Tex.

Crim. App. 2003); Martinez v. State, 98 S.W.3d 189, 193 (Tex. Crim. App. 2003);

Lankston v. State, 827 S.W.2d 907, 909 (Tex. Crim. App. 1992). Further, making

the trial court aware of the complaint requires that both the grounds and what is

being objected to be apparent to the court. See Hernandez v. State, 599 S.W.2d

614, 617 (Tex. Crim. App. 1980).

      Here, appellant made no reference to the notebook or to its lyrics when

making his objection, and the entire substance of his voir dire questioning of

Detective Stanford related only to the chain of custody of the exhibit. Although

the State mentioned the lyrics, appellant’s only response was to object and argue

that the court was “getting into stuff that’s not even in evidence.” At no point did

appellant mention the lyrics or argue that they were more prejudicial than

probative, and it does not appear in the record that the trial court reviewed the

                                        18
lyrics.      Appellant did not make a specific objection regarding the lyrics.

Accordingly, we hold that appellant has not preserved this complaint for review.

See TEX. R. APP. P. 33.1(a).

          We overrule appellant’s second and third issues.

                                          Conclusion

          We affirm the judgment of the trial court.




                                                 Terry Jennings
                                                 Justice

Panel consists of Chief Justice Radack and Justices Jennings and Keyes.

Do not publish. TEX. R. APP. P. 47.2(b).




                                            19
