Affirmed as Modified; and Opinion Filed May 22, 2013.




                                        S  In The
                                     Court of Appeals
                              Fifth District of Texas at Dallas

                                     No. 05-11-00777-CR
                                     No. 05-11-00778-CR

                     JAMES ARTHUR WILLIAMSON III, Appellant
                                     V.
                         THE STATE OF TEXAS, Appellee

                     On Appeal from the 204th Judicial District Court
                                  Dallas County, Texas
                   Trial Court Cause Nos. F10-58141-Q and F10-58142-Q

                                          OPINION

                        Before Justices FitzGerald, Fillmore, and Evans
                                Opinion by Justice FitzGerald

       A jury convicted appellant James Arthur Williamson III of sexual assault and evading

arrest. On appeal, appellant argues that the trial judge erred by denying his motion to suppress

his recorded interview at the police station after his arrest. He also argues that the judgments

contain clerical errors. We modify the judgments and affirm them as modified.

                                      I. BACKGROUND

       The evidence at trial showed the following facts leading up to appellant’s arrest. The

complainant testified that she was twenty years old at the time of the incident. During the

evening of July 15, 2010, she and some friends went to downtown Dallas to go to a club. The

complainant had already had too much to drink before the group arrived at the club, and by the
time they arrived at the club, she could barely walk. The last thing she could remember about

the evening was standing in line to enter the club.

       One of the complainants’ friends testified that they decided complainant was too drunk to

go to the club, and that they decided to take her back to her car. Appellant approached the group

and offered to help, and they let him help take the complainant back to her car. Another witness

testified that he was a limousine driver, and that he was in the area at the time of the incident.

He testified that he saw appellant carrying the complainant over his shoulder like a “caveman,”

and that he thought it was strange because the way he was carrying her was causing her dress to

come up and her top to come down. He offered appellant his jacket to cover the complainant up,

but appellant declined. He saw appellant put the complainant into a car “like a bag of groceries,”

and the complainant appeared to be unconscious. He looked away, and when he looked back

towards the car, appellant was gone and two young women were crossing the street, apparently

going back to a club. About fifteen minutes later, he saw two police officers by the car. They

tapped on the window, and a man got out of the car. The man appeared to pulling up his pants or

zipping up his pants. He talked to the officers, then took a swing at one of them and ran away.

       Police officer Jessica Near testified that she was on bicycle patrol with her partner,

officer Brad Riede, on the night in question. She was riding through a parking lot in downtown

Dallas shortly after midnight when she looked through a car’s windshield and saw what she

thought was two people having sex in the backseat. She called Riede over and opened the car

door. She saw appellant in the car with his pants down to his knees. She told appellant to get

out of the car, and she saw that the complainant appeared to be unconscious. Appellant got out

of the car, pulled his pants up, and eventually complied with Near’s order to put his hands on the

car. Near then told appellant to put his hands behind his back, but when he put his left hand

behind his back and Near grabbed it, appellant jerked his hand back in front of him. Riede

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attempted to grab appellant and Near went for her mace, but appellant spun away from Riede and

knocked Near down. Near testified that she did not believe any of the mace got on appellant.

Appellant then ran away, and Riede went after him while Near stayed with the complainant.

          Riede also testified at trial. He testified that he did not think Near maced appellant

because Riede was very close to appellant and would have been maced as well. Riede did not

get any mace on him. Riede caught up to appellant after chasing him about half a block, and

Riede knocked appellant down with his baton. Riede ordered him to lie on his stomach with his

hands behind his back, and he told appellant that he was under arrest. Instead, appellant got up

and started running again with Riede in pursuit. When appellant saw some police officers

approaching from the opposite direction, he turned back towards Riede, who again knocked him

down with his baton. Appellant was “flailing around on the ground,” making it difficult for

Riede to handcuff him. Riede then backed away from appellant and hit him with his baton

several times on his left arm and left leg. Then two other officers joined Riede, and they were

able to subdue and handcuff appellant. Appellant showed no signs of being maced, such as

watery eyes, a runny nose, difficulty breathing, or inability to speak. Appellant was examined by

paramedics, who decided that appellant did not need to go to the hospital.

          Appellant was taken to a police station. Detective Michael Kemp testified that he read

appellant his Miranda 1 rights and proceeded to interview him. The interview was videotaped.

Kemp testified that appellant did not appear to be under the influence of alcohol or drugs, and

that appellant did not appear to need medical attention. During the interview, appellant admitted

that he licked the complainant’s vagina, that he put his finger inside her vagina, and that his

penis touched her vagina. After the interview, appellant was taken to jail. Riede testified that

appellant did have a head injury and that he received two staples in his head at the jail.

   1
       Miranda v. Arizona, 384 U.S. 436 (1966).



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       By separate indictments, appellant was indicted for sexual assault and for evading arrest.

In each case he filed a motion to suppress all statements made by appellant at the time of his

arrest and afterwards. The trial judge held a single hearing on both motions to suppress. The

judge viewed the video of the interview with appellant. No other evidence was offered or

admitted at the suppression hearing. After hearing argument from both sides, the trial judge

denied the motions to suppress, and the video was admitted into evidence at trial. The jury found

appellant guilty of both counts. The punishment phase of the trial was conducted without a jury.

The trial judge sentenced appellant to twenty years’ imprisonment on the evading-arrest charge

and thirty years’ imprisonment on the sexual-assault charge.

       Appellant timely appealed. He raises two issues on appeal.

                                  II. MOTION TO SUPPRESS

       In his first issue on appeal, appellant argues that his statements during the recorded

interview were involuntarily made, and thus that the trial judge erred by overruling his motion to

suppress.

A.     Standard of review and applicable law

       We review the trial judge’s determination as to the voluntariness of a confession under an

abuse-of-discretion standard. Delao v. State, 235 S.W.3d 235, 238 (Tex. Crim. App. 2007).

This is a bifurcated standard of review under which we give almost total deference to the trial

judge’s determination of historic facts and any mixed questions of law and fact that depend on

the credibility of witnesses, but we give de novo review to pure questions of law and mixed

questions that do not depend on credibility determinations. Martinez v. State, 348 S.W.3d 919,

922–23 (Tex. Crim. App. 2011).        We review the record as it existed at the time of the

suppression hearing. O’Hara v. State, 27 S.W.3d 548, 551 (Tex. Crim. App. 2000); Hooper v.

State, No. 05-05-00390-CR, 2006 WL 620251, at *2 n.3 (Tex. App.—Dallas Mar. 14, 2006, pet.


                                               –4–
ref’d) (mem. op., not designated for publication). 2 Because the trial judge based her ruling solely

on the contents of the video recording of the appellant’s interrogation, there were no credibility

determinations to be made, and our review is de novo. See Martinez, 348 S.W.3d at 922–23;

Jackson v. State, No. 03-11-00826-CR, 2012 WL 4780654, at *4 (Tex. App.—Austin Oct. 5,

2012, no pet.) (mem. op., not designated for publication) (reviewing suppression ruling de novo

because appellant “relied solely on the events within his recorded interrogation” in his motion to

suppress).

           “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, under the rules

hereafter prescribed.” TEX. CODE CRIM. PROC. ANN. art. 38.21 (West 2005). The court of

criminal appeals has identified three distinct legal theories under which a statement can be ruled

involuntary and thus inadmissible: (1) general involuntariness under article 38.22, section 6 of

the code of criminal procedure, (2) Miranda, as expanded in sections 2 and 3 of article 38.22,

and (3) the Due Process Clause. Oursbourn v. State, 259 S.W.3d 159, 169 (Tex. Crim. App.

2008). This case involves the first Oursbourn theory of involuntariness. That theory can involve

police overreaching, but police overreaching is not essential to the claim. Id. at 172. Factors that

could be relevant to a general-voluntariness inquiry include illness, intoxication, effects of

medications, youth, mental retardation, and threats. Id at 170–73. These factors are usually not

enough, by themselves, to render a statement inadmissible. Id. at 173; see also Leza v. State, 351

S.W.3d 344, 352–53 (Tex. Crim. App. 2011) (upholding trial court’s conclusion that confession

was voluntary even though some evidence showed defendant injected heroin just before his

arrest).

     2
       We may review the evidence adduced at trial if the parties consensually relitigate the suppression issue at trial. Turrubiate v. State, No.
PD-0388-12, 2013 WL 1438172, at *2 (Tex. Crim. App. Apr. 10, 2013). That did not happen in this case, so our review will be limited to the
evidence before the judge at the suppression hearing—that is, the video of the interview itself.



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       When a defendant presents evidence raising a voluntariness question, the State must

controvert that evidence and prove voluntariness by a preponderance of the evidence. State v.

Terrazas, 4 S.W.3d 720, 725 (Tex. Crim. App. 1999). The State is not put to its burden unless

the defendant presents evidence that raises a voluntariness question.      Id.   A confession is

involuntary if, under the totality of the circumstances demonstrates that the confessor did not

make the decision to confess of his own free will. Morales v. State, 371 S.W.3d 576, 583 (Tex.

App.—Houston [14th Dist.] 2012, pet. ref’d.)

B.     Application of the law to the facts

       As previously noted, the only evidence presented at the suppression hearing was the

video of the interview itself, so we will limit our review to that evidence. Appellant’s theory is

that the video shows that his statements were involuntary because he was in pain from being

sprayed with mace and from being beaten and knocked down by officer Riede during appellant’s

escape attempt. Assuming that the video satisfied appellant’s threshold burden of raising a

question about voluntariness, we conclude that the trial judge did not err by concluding that the

video satisfied the State’s burden of proving voluntariness by a preponderance of the evidence.

       The video shows appellant in a small room for a total of about two hours and forty-five

minutes. Based on statements made by a police detective on the video, the video starts at about

2:15 a.m. on July 16, 2011. At first, appellant was handcuffed, but a police officer removed the

handcuffs within a minute of the beginning of the video. Appellant asked for water, which was

promptly given to him. After a few minutes, appellant removed his shirt with his right hand

only. Appellant was left alone for about half an hour. Then detective Kemp entered the room at

about 2:45 a.m. and read appellant his rights. Appellant said that he understood his rights, and

Kemp proceeded to interview him for about thirty-five minutes. Kemp left at about 3:20 a.m.

During the next hour and forty minutes, police officers entered the room a few times for various


                                               –6–
reasons.     One obtained appellant’s contact information; another took swab samples from

appellant’s hand and penis. Kemp came back to take some photographs of appellant. Appellant

was taken away at about 5:00 a.m.

        As appellant points out and the State agrees, the video does tend to show that appellant

was in some degree of discomfort. He plainly favored his left arm and left leg, frequently

rubbing them and wincing. The video also tends to support appellant’s assertion that he was

cold, in that the sound of his teeth chattering is occasionally audible. Appellant had some

difficulty standing up from his chair. However, the video does not indicate that appellant was

suffering from any lingering aftereffects from being maced; although appellant rubbed his eyes

several times during the video, he did not do so excessively, nor did he complain to any police

officers that his eyes or nose were burning or running because of the mace. Nor did he appear to

have any trouble breathing. He was lucid and coherent during detective Kemp’s interview, and

he denied that he was drunk or had used any drugs that night. When a different police officer

asked appellant if he had any medical problems, he shook his head. Appellant was able to give

his social security number twice during the course of the video, and he was also able to give his

telephone number.     Moreover, despite his discomfort, he fell asleep once or twice during

extended periods when he was left alone in the room. Given the totality of the circumstances of

the interview, we conclude that the State showed by a preponderance of the evidence that

appellant’s statements during the course of the interview were made voluntarily and of his own

free will.

        This case is similar to Jackson v. State, No. 03-11-00826-CR, 2012 WL 4780654 (Tex.

App.—Austin Oct. 5, 2012, no pet.) (mem. op., not designated for publication). Jackson was

arrested and interrogated after committing a robbery, crashing a car in a high-speed chase, and

being treated for his injuries at a hospital. Id. at *2. The video of his interrogation was admitted

                                                –7–
at trial over his motion to suppress. Id. at *4. The video showed that Jackson was put in the

interrogation room at about 6 a.m. and was left alone for about an hour before a detective entered

the room and interviewed him for about twenty minutes. Id. at *5. Jackson argued that his

confession was involuntary because he was fatigued, hungry, injured, and left alone in a small

room for some time, and because the detective suggested Jackson might get a lighter sentence if

he was honest and apologized for the robbery. Id. at *6. The court of appeals rejected his

argument:

       Although Jackson was arguably tired during the interrogation, the video shows
       that he was alert, coherent, and could answer the detective’s questions. The
       detective’s questioning lasted less than twenty minutes, and at no time was the
       detective threatening or overbearing. . . . Therefore, we conclude that Jackson’s
       confession was voluntary, and the trial court did not err in denying Jackson’s
       motion to suppress the confession.

Id. (citation omitted). In the instant case, although appellant was in some discomfort, he was

alert, coherent, and could answer detective Kemp’s questions. Kemp was never threatening or

overbearing, and the interview lasted only about thirty-five minutes. Accordingly, we conclude

that appellant’s statement were voluntary, and we reject his first issue on appeal.

                                      III. CLERICAL ERRORS

       In his second issue on appeal, appellant points out that the judgments erroneously recite

that his punishment was assessed by a jury. The record reflects that the trial court determined

punishment. Appellant asks us to correct the errors. The State agrees that the judgment should

be reformed. We have the power to correct the trial court’s judgment to make the record speak

the truth when we have sufficient information to do so. TEX. R. APP. P. 43.2(b); Turner v. State,

No. 05-08-00492-CR, 2009 WL 1959240, at *3 (Tex. App.—Dallas July 9, 2009, no pet.) (mem.

op., not designated for publication). Accordingly, we modify the trial court’s judgments to

reflect that the trial court, not the jury, assessed punishment.



                                                 –8–
                                      IV. CONCLUSION

       We affirm the trial court’s judgments as modified.




                                                    KERRY P. FITZGERALD
                                                    JUSTICE



Do Not Publish
Tex. R. App. P. 47




110777F.U05




                                              –9–
                                       S
                              Court of Appeals
                       Fifth District of Texas at Dallas
                                      JUDGMENT

JAMES ARTHUR WILLIAMSON III,                       On Appeal from the 204th Judicial District
Appellant                                          Court, Dallas County, Texas
                                                   Trial Court Cause No. F10-58141-Q.
No. 05-11-00777-CR        V.                       Opinion delivered by Justice FitzGerald.
                                                   Justices Fillmore and Evans participating.
THE STATE OF TEXAS, Appellee

        Based on the Court’s opinion of this date, the judgment of the trial court is MODIFIED
as follows: The section labeled “Punishment Assessed By” is modified to read “JUDGE” instead
of “JURY.”

       As MODIFIED, the judgment is AFFIRMED.


Judgment entered May 22, 2013.




                                                 /Kerry P. FitzGerald/
                                                 KERRY P. FITZGERALD
                                                 JUSTICE




                                            –10–
                                       S
                              Court of Appeals
                       Fifth District of Texas at Dallas
                                      JUDGMENT

JAMES ARTHUR WILLIAMSON III,                       On Appeal from the 204th Judicial District
Appellant                                          Court, Dallas County, Texas
                                                   Trial Court Cause No. F10-58142-Q.
No. 05-11-00778-CR        V.                       Opinion delivered by Justice FitzGerald.
                                                   Justices Fillmore and Evans participating.
THE STATE OF TEXAS, Appellee

        Based on the Court’s opinion of this date, the judgment of the trial court is MODIFIED
as follows: The section labeled “Punishment Assessed By” is modified to read “JUDGE” instead
of “JURY.”

       As MODIFIED, the judgment is AFFIRMED.


Judgment entered May 22, 2013.




                                                 /Kerry P. FitzGerald/
                                                 KERRY P. FITZGERALD
                                                 JUSTICE




                                            –11–
