









In The

Court of Appeals

Sixth Appellate District of Texas at Texarkana


______________________________

No. 06-01-00084-CR
______________________________


BORIS DAWSON, Appellant

V.

THE STATE OF TEXAS, Appellee



On Appeal from the 71st Judicial District Court
Harrison County, Texas
Trial Court No. 00-0094X





Before Cornelius, C.J., Grant and Ross, JJ.
Opinion by Chief Justice Cornelius

O P I N I O N

	A jury found Boris Dawson guilty of the murder of Francois Dean and set his punishment
at life imprisonment.  At the punishment phase of the trial, the State sought to introduce a statement
Dawson allegedly made to the police that concerned not the murder for which Dawson was then
being tried, but another offense to which Dawson had been linked.  Dawson filed a motion to
suppress the statement on the basis that it was made involuntarily.  The trial court held a hearing,
ruled the statement admissible, and made findings of fact and conclusions of law.  Dawson contends
on appeal that the statement was inadmissible.
	The determination of whether a statement is voluntary is a mixed question of law and fact,
i.e., an application of law to a fact question.  Garcia v. State, 15 S.W.3d 533, 535 (Tex. Crim. App.
2000); see Tex. Code Crim. Proc. Ann. art. 38.22, § 6 (Vernon 1979).  As a general rule, we afford
almost total deference to a trial court's determination of the historical facts concerning the making
of the statement so long as the record supports them, especially when the trial court's fact findings
are based on an evaluation of credibility and demeanor.  Guzman v. State, 955 S.W.2d 85, 89 (Tex.
Crim. App. 1997).  We should afford the same deference to a trial court's rulings on mixed questions
of law and fact if the resolution of those ultimate questions turns on an evaluation of credibility and
demeanor. We may review de novo mixed questions of law and fact that do not fall within this
category.  See id.  Because ordinarily the determination of whether a statement is voluntary turns
almost entirely on the evaluation of credibility and demeanor, we will afford almost total deference
to the trial court's resolution of this type of mixed question of law and fact.  See Wyatt v. State, 23
S.W.3d 18, 23 (Tex. Crim. App. 2000); Garcia v. State, 15 S.W.3d at 535; Romero v. State, 800
S.W.2d 539, 543 (Tex. Crim. App. 1990).
	A statement may be deemed involuntary if there has been noncompliance with Article 38.22
of the Texas Code of Criminal Procedure; noncompliance with the dictates of Miranda v. Arizona,
384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966); or a violation of due process or due course of
law because the statement was not freely given (e.g., coercion, improper influences, incompetence).
Wolfe v. State, 917 S.W.2d 270, 282 (1996).  Dawson did not specify at trial on what basis he was
alleging involuntariness.  Nevertheless, the factors involved in determining involuntariness for due
process purposes do not materially differ from those relevant to deciding whether an inculpatory
statement was compelled contrary to the United States Constitution's Fifth Amendment privilege
against self-incrimination.  U. S. Const. amend. V; Colorado v. Connelly, 479 U.S. 157, 169-70,
107 S.Ct. 515, 93 L.Ed.2d 473 (1986); Griffin v. State, 765 S.W.2d 422, 429-30 (Tex. Crim. App.
1989).
	The law surrounding the issue of voluntariness of a statement is well established.  We judge
the voluntariness of a statement by looking at the totality of the circumstances surrounding the
making of the statement, including both the characteristics of the accused and the details of the
interrogation.  See Schneckloth v. Bustamonte, 412 U.S. 218, 226, 93 S.Ct. 2041, 36 L.Ed.2d 854
(1973); Creager v. State, 952 S.W.2d 852, 855 (Tex. Crim. App. 1997).  A statement is voluntarily
made if it is the product of an essentially free and unconstrained choice by its maker.  See
Schneckloth v. Bustamonte, 412 U.S. at 225; State v. Terrazas, 4 S.W.3d 720, 723 (Tex. Crim. App.
1999).  Conversely, a statement is involuntary for purposes of federal due process if there was
official, coercive conduct of such a nature that any statement obtained thereby 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).  Once a defendant moves to suppress a statement on
the ground of involuntariness, the due process guarantee requires the trial court to hold a hearing
outside the presence of the jury concerning the admissibility of the statement.  Jackson v. Denno, 378
U.S. 368, 380, 84 S.Ct. 1774, 12 L.Ed.2d 908 (1964).  Tex.  Code  Crim.  Proc.  Ann.  art. 38.22, 
§ 6 and Tex. R.  Evid. 104(c) have the same requirement.  At this hearing, the state has the burden
of proof to show by a preponderance of the evidence that the statement was freely and voluntarily
made.  See Griffin v. State, 765 S.W.2d 422, 429 (Tex. Crim. App. 1989). 
	Dawson contends his statement was involuntary because:  1) he did not write it himself; 2)
he did not fully understand his rights; 3) he requested, but was denied, an attorney; 4) he was coerced
and intimidated into making the statement, and he was ignored when he stated that he did not wish
to make a statement; 5) the police failed to make a videotape or audiotape of the session; 6) he did
not effectively read the statement because he cannot read or write the English language; and 7) he
was promised a lower bond and lower criminal charge if he confessed, and he relied on such
promise. Darryl Griffin, the police officer who took Dawson's statement, testified at the hearing, as
did Dawson himself.  Thus, the trial court's conclusion that Dawson's statement was voluntary was
based on a direct evaluation of the witnesses' credibility and demeanor.
	Griffin testified that before questioning and in the presence of a special agent for the Federal
Bureau of Investigation,  he verbally gave Dawson each particular warning necessitated by Miranda
and Article 38.22.  Dawson indicated that he understood those rights and that he could read and
write.  After Dawson was handed a form entitled "Voluntary Statement" at the top of which the same
warnings were repeated, Dawson read and initialed alongside each warning.  Griffin then wrote
Dawson's statement as it was related to him, and Dawson signed the statement after reading it and
making corrections.  According to Griffin, at no time did he promise Dawson anything of value or
say anything to coerce or force Dawson to give a statement; and at no time did Dawson request an
attorney or indicate that he wished to terminate the interview.  The interview took place in Griffin's
office.
	Dawson testified that he explicitly told the police he did not want to make a statement, that
he wanted a lawyer, and that he had stated as much to other officers in addition to Griffin.  He further
testified that Griffin told him that they were going to upgrade the charges to first-degree murder, and
that Griffin also suggested that if Dawson cooperated and gave a statement, Dawson could get a
lower bond.  At some point in the interrogation, Griffin handed Dawson the written statement of
Russell Leonard, who was also charged with the murder of Francois Dean.  Dawson read Leonard's
statement.  Dawson testified that although he initialed each warning on the voluntary statement form
and signed it at the end, most of the words written therein  were not his, but rather were Griffin's and
the special agent's words.  Dawson cooperated only to get a lower bond.
	Most of Dawson's complaints on appeal, enumerated above, are purely a question of witness
credibility and demeanor.  This is true regarding Dawson's contentions that he did not fully
understand his rights, that he was coerced and intimidated into making the statement, that he was
ignored when he stated he did not wish to make a statement, and that he was promised a lower bond
and a lower criminal charge if he confessed.  The trial court made specific findings of fact that these
contentions were not true, and such findings are supported by Griffin's testimony.  We will therefore
not disturb them.  
	Dawson's contention that involuntariness is shown by the fact that he did not write the
statement himself is contrary to the express provisions of Article 38.22, which allow statements even
if only signed by an accused.  See Tex. Code Crim. Proc. Ann. art. 38.22, § 6.  His contention that
the interrogation had to be videotaped or audiotaped is unsupported by any statute or case law.  Here,
we are not dealing with the admission of an oral statement.  See Tex. Code Crim. Proc. Ann. art.
38.22, § 3 (Vernon Supp. 2002).  While the absence of taping where equipment is readily available
may be relevant to the credibility of a witness testifying about a statement, measuring credibility is
the province of the trial court.  Finally, Dawson's contention that he cannot read or write the English
language is belied by his own testimony that he read Leonard's statement.
	The evidence supports the trial court's finding that no coercive conduct occurred with respect
to the taking of Dawson's statement.  Nothing in the totality of these circumstances suggests that
Dawson's statement was made involuntarily.  
	The judgment is therefore affirmed.
 

							William J. Cornelius
							Chief Justice

Date Submitted:	February 18, 2002
Date Decided:		February 21, 2002

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