Affirmed and Memorandum Opinion filed June 14, 2012.




                                          In The

                      Fourteenth Court of Appeals

                                  NO. 14-11-00484-CR

                         KENNETH BROUSSARD, Appellant

                                            V.

                          THE STATE OF TEXAS, Appellee


                       On Appeal from the 239th District Court
                              Brazoria County, Texas
                           Trial Court Cause No. 61,951


                    MEMORANDUM OPINION
       Kenneth Broussard appeals his conviction for sexual assault on the grounds that
the trial court erred in denying (a) his motion to suppress evidence and (b) his motion for
a mistrial based on prosecutorial misconduct. We affirm.

                                    BACKGROUND

       Appellant was indicted in April 2010 for the sexual assault of his seventeen-year-
old stepdaughter. Because he has not challenged the sufficiency of the evidence to
support his conviction, we limit our discussion of the facts here and throughout the
opinion to those necessary to dispose of his issues.
        Appellant filed a motion to suppress, among other things, a buccal swab sample
taken from him. The trial court heard the motion to suppress on May 2, 2011. At the
hearing, the officers present when the sample was taken testified that appellant had been
provided his Miranda warnings prior to the sample being taken. They further testified
that when they asked appellant to provide the buccal swab sample, he orally consented.
Both officers stated that appellant voluntarily provided the sample, and they did not
threaten or coerce him into providing it. The interview was videotaped.1 The trial court
denied the motion to suppress.

        As is relevant to this appeal, the trial court made the following findings:

        8.    During the interview, the defendant gave the detectives a written
              statement.
        9.    The face of the written statement (titled Voluntary Statement)
              contained the following Miranda rights: (a) I have the right to remain
              silent and not make any statement at all and that any statement I make
              may be used against me at my trial; (b) any statement I make may be
              used as evidence against me in court; (c) I have the right to have a
              lawyer present to advise me prior to and during any questioning; (d) if
              I am unable to employ a lawyer, I have the right to have a lawyer
              appointed to advise me prior to and during any questioning; and (e) I
              have the right to terminate the interview at any time.
        10. The defendant placed his initials next to each Miranda warning
            indicating that he knowingly, intelligently, and voluntarily waived the
            rights set out in the warnings.
        11. The defendant wrote his statement and signed his name.
        12. The defendant was not coerced, deceived, or promised anything in
            exchange for a written statement.
        13. The defendant during the oral interview was asked to provide a buccal
            swab sample.
        14. The defendant orally consented to giving the buccal swab sample.
        15. The defendant voluntarily gave the buccal swab sample.

        1
          The videotaped interview was not admitted at appellant’s trial because it did not reflect that the
officers provided appellant his Miranda warnings at the start of it. However, both officers testified that
these warnings had been provided to appellant prior to the beginning of the recording, although there was
some confusion as to which officer had actually read the warnings to him.

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       16. The defendant did not resist giving the buccal swab sample.
       17. The defendant was not coerced, deceived, or promised anything in
           exchange for giving the buccal swab sample.
       18. The defendant voluntarily signed his name and provided his
           thumbprint to the buccal swab submission paperwork.

The trial court made the following legal conclusion regarding the buccal swab sample:

       Based on the testimony of the witness[es] and the videotape, the court
       concludes that the defendant prior to giving a buccal swab sample was
       given his Miranda warnings, the defendant freely and voluntarily gave a
       buccal swab sample and that the defendant was not coerced or threatened to
       give the buccal swab sample.

Appellant pleaded not guilty to the charged offense. The jury found him guilty.

       During the punishment phase of appellant’s trial, out of the presence of the jury,
appellant’s counsel objected to a copy of an out-of-state judgment the State intended to
offer because it allegedly was not properly authenticated. After the State argued that the
judgment was admissible, the trial court stated, “I’m just telling you if there’s an
objection, I’ll sustain it. You can offer it if you’d like to.” In front of the jury, the
following colloquy subsequently occurred:

       [The State]: And at [t]his time we would like to tender and offer this
       certified judgment from Calcasieu Parish in Louisiana showing a
       conviction for —
       [Appellant]: Your Honor —
       [The State]: — Kenneth Broussard —
       [Appellant] Your Honor, I’m going to object —
       [The State]: — for delivery of a controlled substance.
       [The Court]: Sustained.

Appellant’s trial counsel approached the bench and stated that he was going to ask for a
mistrial because the State “just told them [the jury] what we’re trying to keep out.”
Appellant’s counsel then stated that his objection was that the judgment was not properly
authenticated. The trial court, before the jury, again sustained appellant’s objection.


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       Appellant’s counsel then asked the trial court to excuse the jury so that he could
move for a mistrial. Appellant’s counsel then moved for a mistrial as follows:

       [N]ow comes the defendant, Kenneth Ray Broussard . . . and requests a
       mistrial in that the State just offered into evidence what I think is State’s
       Exhibit No. 34 . . . which was a judgment. This Court sustained the
       objection. However, the State told the contents of the — of the judgment
       orally.. So the jury heard what was said. So, it — it makes my motion
       almost moot. Although the Judge sustained the objection, the jury is not
       going to forget that he said that the defendant was convicted in Louisiana.
       So, I believe that my client has been unduly prejudiced by the State’s oral
       declaration.

The trial court denied appellant’s motion for a mistrial and sua sponte instructed the jury
to disregard as follows:

       First of all, the objection made . . . regarding State’s Exhibit 34 . . . has
       been sustained. So State’s Exhibit 34 is not admitted into evidence. . . .
       And the statements made by the State, I’m going to instruct you to
       disregard those statements. In that instruction to disregard, you cannot
       consider that for any purpose. Okay?
       All right. Everybody understand the instruction to disregard?
       Okay. Very good.

After both sides rested and closed, the jury was charged. The jury sentenced appellant to
fifteen years’ confinement. This appeal timely followed.

                                         ANALYSIS

A.     Motion to Suppress

       In his first issue, appellant asserts that the trial court erred in denying his motion to
suppress the buccal swab sample obtained during his custodial interview. We review a
trial court’s suppression ruling under an abuse-of-discretion standard. Villarreal v. State,
935 S.W.2d 134, 138 (Tex. Crim. App. 1996). At a suppression hearing, the trial judge is
the sole fact-finder. Arnold v. State, 873 S.W.2d 27, 34 (Tex. Crim. App. 1993). We give
almost total deference to a trial court’s rulings on questions of historical fact and
application-of-law-to-fact questions that turn on an evaluation of credibility and
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demeanor, but we review de novo application-of-law-to-fact questions that do not turn on
credibility and demeanor. 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).

        The Fourth Amendment protects against unreasonable searches and seizures by
government officials.2 U.S. Const. amend. IV; Wiede v. State, 214 S.W.3d 17, 24 (Tex.
Crim. App. 2007). Here, the parties agree that the search and seizure at issue occurred
without a warrant. In such a situation, the burden of proof shifts to the State to establish
that the search was reasonable. See Amador v. State, 221 S.W.3d 666, 672–73 (Tex.
Crim. App. 2007). Whether a search and seizure is reasonable is a question of law that we
review de novo by examining the totality of the circumstances. Kothe v. State, 152
S.W.3d 54, 62–63 (Tex. Crim. App. 2004). A search conducted without a warrant is per
se unreasonable unless it falls within one of the “specifically defined and well
established” exceptions to the warrant requirement. McGee v. State, 105 S.W.3d 609, 615
(Tex. Crim. App. 2003). Consent to search is a well-established exception to the Fourth
Amendment requirement of a warrant and probable cause. See id.

        Appellant asserts that his failure to complain or refuse to provide the buccal swab
sample was simply a submission by appellant to the officer’s show of authority. See
Florida v. Royer, 460 U.S. 491, 497 (1983) (“Neither is it disputed that where the validity
of a search rests on consent, the State has the burden of proving that the necessary
consent was obtained and that it was freely and voluntarily given, a burden that is not
satisfied by showing a mere submission to a claim of lawful authority.”). But both
officers present during appellant’s interview testified that appellant was twice provided
his Miranda warnings: once before the start of the recorded interview and once when he
provided his written statement. Both officers likewise testified that appellant was asked to

        2
          The search and seizure provisions of the Texas constitution warrant an analysis distinct from the
federal constitutional analysis. See Heitman v. State, 815 S.W.2d 681, 690 (Tex. Crim. App. 1991).
However, because appellant makes no distinction between the constitutions with regard to this matter, and
absent authority to the contrary, our discussion applies to both. See Metoyer v. State, 860 S.W.2d 673,
676 n. 4 (Tex. App.—Fort Worth 1993, pet. ref’d) (noting that a violation of the Texas constitution is also
determined by a reasonableness standard under the circumstances).

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give a buccal swab specimen, and he voluntarily complied. They stated that no force or
threat was used to obtain the specimen, although one of the officers admitted he may
have informed appellant that the buccal swab sample could provide evidence that he did
not commit the offense. Finally, both officers acknowledged that appellant was not
specifically informed he had a right to refuse to provide the buccal swab sample.

      In determining whether consent was voluntary, we look to certain relevant factors,
such as: the youth of the accused; the education of the accused; the intelligence of the
accused; the constitutional advice given to the accused; the length of the detention; the
repetitiveness of the questioning; and the use of physical punishment. Reasor v. State, 12
S.W.3d 813, 818 (Tex. Crim. App. 2000); State v. Hunter, 102 S.W.3d 306, 311 (Tex.
App.—Fort Worth 2003, no pet.). Additionally, testimony by law enforcement officers
that no coercion was involved in obtaining the consent is evidence of the voluntary nature
of the consent. Martinez v. State, 17 S.W.3d 677, 683 (Tex. Crim. App. 2000); Hunter,
102 S.W.3d at 311. Consent is not rendered involuntary merely because the accused is
under arrest. Johnson, 68 S.W.3d at 653. A police officer’s failure to inform the accused
that he may refuse consent is a factor to consider in determining the voluntariness of
consent; however, the absence of such information does not automatically render the
accused’s consent involuntary. Id. at 653

      Here, appellant did not testify; hence he did not produce any evidence to suggest
that he did not consent to providing a DNA sample. See State v. Kelly, 204 S.W.3d 808,
819 n.22 (Tex. Crim. App. 2006) (noting that the appellant has the initial burden to
produce evidence to support a finding that she did not consent to a blood draw).
Testimony of the officers present during the interview, as well as the videotape of the
interview, support the trial court’s finding that appellant voluntarily consented to
providing the buccal swab sample. Appellant leaned over and opened his mouth to submit
to the officers’ request for the buccal swab sample. Additionally, he orally consented to
providing the sample, signed the form accompanying the sample, and voluntarily placed
his thumbprint on the form. After reviewing the totality of the circumstances, we


                                            6
conclude that appellant voluntarily consented to providing the buccal sample. See Kothe,
152 S.W.3d at 62–63. Accordingly, we overrule his first issue.

B.     Motion for Mistrial

       In his second issue, appellant complains that the trial court erred in denying his
motion for mistrial “due to prosecutorial misconduct.” The proper method of preserving
error in cases of prosecutorial misconduct is to (1) object on specific grounds, (2) request
an instruction that the jury disregard the comment, and (3) move for a mistrial. Penry v.
State, 903 S.W.2d 715, 764 (Tex. Crim. App. 1995) (per curiam); Cook v. State, 858
S.W.2d 467, 473 (Tex. Crim. App. 1993). However, as described above, appellant moved
for a mistrial after the trial court sustained his objection that the exhibit was not properly
authenticated. Appellant made no objection on the basis of prosecutorial misconduct in
the trial court. By failing to object on this theory at trial, appellant has preserved nothing
for our review. Hajjar v. State, 176 S.W.3d 554, 566 (Tex. App.—Houston [1st Dist.]
2004, pet. ref’d). Moreover, as mentioned above, the trial court stated that the State could
offer the judgment at issue if it wanted, but that the court would sustain an objection if
one were made. Further, the trial court, sua sponte, instructed the jury to disregard and
even went so far as to ascertain whether the jury understood this instruction. Under these
circumstances, appellant’s second issue presents nothing for our review, and we overrule
it.

                                      CONCLUSION

       For the foregoing reasons, we have overruled appellant’s appellate issues.
Accordingly, we affirm the trial court’s judgment.




                                           /s/       Adele Hedges
                                                     Chief Justice

Panel consists of Chief Justice Hedges and Justices Seymore and Brown.
Do Not Publish — Tex. R. App. P. 47.2(b).
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