                                  NO. 07-07-0085-CR

                             IN THE COURT OF APPEALS

                      FOR THE SEVENTH DISTRICT OF TEXAS

                                     AT AMARILLO

                                        PANEL A

                                  MAY 20, 2008
                         ______________________________

                          JUAN JOSE DURAN, APPELLANT

                                           V.

                         THE STATE OF TEXAS, APPELLEE
                       _________________________________

          FROM THE 222ND DISTRICT COURT OF DEAF SMITH COUNTY;

               NO. CR-06I-108; HONORABLE ROLAND SAUL, JUDGE
                      _______________________________


Before CAMPBELL and HANCOCK and PIRTLE, JJ.


                               MEMORANDUM OPINION


      Appellant, Juan Jose Duran, appeals his convictions for one count of aggravated

sexual assault and three counts of sexual assault. After finding the enhancement portions

of the indictment true, the jury assessed punishment at a term of confinement of 25 years

for aggravated sexual assault and 15 years for each count of sexual assault, all terms of

confinement to run concurrently. By one issue, appellant claims that the trial court erred

in overruling his motion to suppress his confession. We affirm.
                            Factual and Procedural Background


       On June 14, 2006, appellant was arrested for the unrelated offense of public

intoxication. While in jail, appellant was interviewed by a Hereford Police Department

detective. As a result of that interview, appellant gave a written statement admitting that

he had sexual contact with the victim in the case before the court, though appellant

characterized the encounter as consensual. As part of the process of giving a statement,

appellant initialed and signed a card that listed his constitutional rights pursuant to Miranda

v. Arizona.1 Additionally, the written statement form signed by the appellant contained the

same Miranda warnings above appellant’s actual statement.


       Appellant’s trial counsel filed a motion to suppress the written statement alleging

that the statement was taken in violation of appellant’s constitutional rights under the

applicable provisions of both the United States and Texas Constitutions. Additionally,

appellant contends that the statement was taken without following the requirements of

article 38.22 of the Texas Code of Criminal Procedure.2 See TEX . CODE CRIM . PROC . ANN .

art. 38.22 (Vernon 2005). The trial court held hearings on appellant’s motion to suppress

on December 21, 2006, and January 4, 2007. On both occasions, the trial court overruled

appellant’s motion to suppress.




       1
           Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed 2d 694 (1966).
       2
         Further references to the Texas Code of Criminal Procedure will be by reference
to “art. _____.”

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       In the case before the court, appellant contends that the detective who took his

statement never read his Miranda rights to him before the statement was reduced to

writing. The conflict in the testimony revolves around the issue of whether or not appellant

could read. At the first suppression hearing, the detective testified he asked appellant if

he could read to which appellant responded that he could read. The detective then gave

appellant the card with the Miranda warnings and watched as appellant “apparently” read

the warnings. In contrast, appellant testified at the same suppression hearing that he told

the detective he could not read and that the detective gave him the card and told him to

initial the same. The detective further testified that he had appellant dictate his statement,

which the detective reduced to writing, and that he then read the statement to appellant

including the Miranda warnings before appellant signed the same.             At the second

suppression hearing, the State produced the witness to appellant’s signature who verified

that the statement, including the warnings, was read aloud to appellant before appellant

signed the statement.


                                    Standard of Review


       When reviewing a trial court’s decision to deny a motion to suppress, we review the

decision under an abuse of discretion standard. Oles v. State, 993 S.W.2d 103, 106

(Tex.Crim.App. 1999). However, when the facts underlying the trial court’s decision are not

in dispute, we apply a de novo review. In the present case, the facts regarding whether

appellant could read and whether the required warnings were read to him before he


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executed the statement are contested; therefore, the abuse of discretion standard is

applicable. See art. 38.22. See also State v. Ross, 32 S.W.3d 853, 858 (Tex.Crim.App.

2000). Whether the trial court abused its discretion depends upon whether, given the

record and the law, its decision fell outside the zone of reasonable disagreement. See

Benitez v. State, 5 S.W.3d 915, 918 (Tex.App.–Amarillo 1999, pet. ref’d). In reviewing trial

court rulings on motions to suppress, appellate courts afford almost total deference to trial

court determinations of historical facts and to decisions involving mixed questions of law

and fact if the resolution of those questions depends on an evaluation of credibility and

demeanor. Guzman v. State, 955 S.W.2d 85, 89 (Tex.Crim.App. 1997). The trial judge

may believe or disbelieve all or any part of a witness's testimony, even if that testimony is

not controverted. Ross, 32 S.W.3d at 855. Finally, we must uphold the trial court’s

decision on any grounds, whether or not relied upon by the trial court, when the standard

of review is abuse of discretion. Id. at 855-56.


                                        Application


       Appellant’s contention is that since he cannot read, according to his own testimony,

he could not have read the warnings. If he did not read the warnings then, according to

appellant’s theory, he could not have knowingly waived his rights guaranteed by those

warnings. Finally, under appellant’s theory, there is no way that the statement could have

been taken in conformity with the requirements of the Texas Code of Criminal Procedure.

See art. 38.22. If the statement was not taken in conformity with the procedural rules, the

same was not then admissible. Id. at § 2.



                                             4
       The flaw in appellant’s theory is the assumption that the trial court had to agree that

appellant could not read. The trial court heard conflicting evidence regarding this matter.

The State’s witness testified appellant said he could read, albeit not well. The appellant

testified he could not read at all. However, it is uncontradicted that appellant took the

warning card from the detective and appeared to read the same. It was the province of the

trial court to resolve this issue of credibility. Ross, 32 S.W.3d at 855. Accordingly, when

the trial court denied the motion to suppress he, at least impliedly, found the more credible

testimony to be that of the State’s witness. Id.


       Finally, there is the testimony at the second hearing on the motion to suppress

wherein the State’s witness testified he watched and heard the detective who was taking

the statement read the entire document to appellant before he signed it. The statement,

which was introduced, included the statements of appellant’s rights under Miranda and

therefore comported with the requirements of the Texas Code of Criminal Procedure. See

art. 38.22 § 2. Again, it was the trial court’s province to believe or disbelieve this testimony.

Ross, 32 S.W.3d at 855. Further, the record supports the implied finding that the warnings

were given before the statement was completed. Id. Accordingly, the warnings were

sufficient to meet the statutory requirements. See Brooks v. State, 991 S.W.2d 39, 41

(Tex.App.–Fort Worth 1998, pet. ref’d). Therefore, the trial court did not abuse its

discretion and appellant’s issue is overruled.




                                               5
                                      Conclusion


      Having overruled appellant’s sole issue, the trial court’s judgment is affirmed.



                                         Mackey K. Hancock
                                              Justice
Do not publish.




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