Affirmed and Memorandum Opinion filed July 31, 2018.




                                      In The

                    Fourteenth Court of Appeals

                              NO. 14-14-00595-CR

                        JOHNTAY GIBSON, Appellant
                                        V.
                       THE STATE OF TEXAS, Appellee

                   On Appeal from the 230th District Court
                           Harris County, Texas
                       Trial Court Cause No. 1378280

                 MEMORANDUM                      OPINION


      A jury convicted appellant Johntay Gibson of capital murder. The trial court
sentenced appellant to life in prison, without the possibility of parole. On appeal,
appellant claimed: (1) the evidence was insufficient to support his conviction; (2)
the trial court erred in denying his motion to suppress; (3) the jury charge was
erroneous; and (4) reversible error occurred during his closing argument. We
affirmed. The Texas Court of Criminal Appeals granted appellant’s petition for
review, reversed our judgment, and remanded with instructions to consider
appellant’s trial objection to the admission of the second part of his videotaped
statement. Gibson v. State, 541 S.W.3d 164 (Tex. Crim. App. 2017). We again
affirm.

                                 I.     THE EVIDENCE

      On February 18, 2013, Hamid Waraich, the owner of a Boost Mobile phone
store in Harris County, Texas, was shot and killed. Waraich’s wife, Mirna Cortez,
was present and witnessed the shooting, along with a customer, Rosemary Saldana
and her two grandchildren.

      Cortez testified two men entered Boost and one remained at the door (the
“lookout”) while the other approached her at the register (the “shooter”). Saldana
was near the front door with the children. The shooter had on a mask that completely
covered his face, a jacket and gloves, and a pistol in his hand. The lookout was also
wearing a mask and gloves and had a gun, which he pointed at Saldana and the
children. He told Saldana to get on the floor and demanded her purse. Saldana gave
the lookout her bag which contained her bank debit card. The masks prevented
Cortez from seeing the men’s faces but she described the shooter as a little taller and
thinner than the lookout. Saldana described the two suspects as wearing all black
from head to toe, including black masks, and one was significantly taller than the
other. The shorter man was by the door and the taller man approached the cashier.

      The shooter took money from the register and three cellphones on top of the
counter. One phone belonged to Cortez but the other two had not been activated. The
shooter placed Cortez’s cellphone in the pocket of his jacket. He then pointed his
gun at Cortez and demanded her jewelry. Cortez showed her hands, said she did not
have any, and backed up. Cortez heard a gunshot and realized the man had shot
Waraich. A fired cartridge case was recovered from behind the counter on which
                                          2
was printed, “PPU 380 auto.”1 Saldana also heard only a single shot which came
from the counter. She testified the tall robber shot Waraich. The man at the door
began screaming, “let’s go.” The two men ran out and Cortez called 911.

      Video footage from a nearby store, Melrose Family Fashions showed the
suspects walking towards Boost before the robbery and then sprinting north toward
the Payless shoe store afterward.

      Sergeant James Devereux2 and Officer Crank spoke to Monica Castro and
Selene Gutierrez from Melrose and Elizabeth Diaz at Dollar Land and were given
descriptions of each suspect’s height and race. Devereux and Crank proceeded to a
nearby auto repair shop where Joel Montalvo gave them a description of the
suspects’ vehicle – a black Pontiac Grand Prix with paper plates and license number
“47K8036.”

      Gutierrez, the manager of Melrose, testified that about 4:30 p.m. on February
18, 2013, she saw two people walking toward Boost wearing black sweaters and
hoodies. Their faces were uncovered and she could see the men were African-
American. One man was taller than the other. Later, she saw the tall man run by
followed by the other man, wearing a ski mask, in the direction of Payless. Castro,
an assistant manager at Melrose, also noticed the two men walk by wearing dark
clothing and hoodies. Castro saw their faces and they were African-American.

      Montalvo saw two people running to a car, an Oldsmobile or a Pontiac, with
paper plates, backed into a spot in front of Payless. One went in the back on the
driver’s side and the other went in the front on the passenger side. Montalvo was
unable to give any description of the men.


      1
          “PPU” was identified as the brand of ammunition.
      2
          All officers referred to in this opinion were from the Houston Police Department.

                                                 3
      Sergeant Matthew Brady showed Gutierrez and Castro two sets of video
lineups with possible suspects in them. In the first video, appellant was in position
number three. Brandon Johnson was in position number two in the second video.
When Brady showed Castro the first lineup, she stated that she was sixty to seventy
percent certain that she saw number three (appellant) walk past her towards Boost
and that he was the shorter one. When Brady showed Castro the second lineup, she
did not recognize anyone.

      Brady showed the same lineups to Gutierrez. When she viewed the first one,
Gutierrez said number three (appellant) or four could be the taller one. Brady
testified that Gutierrez then viewed the second lineup and identified number one as
the short suspect. Gutierrez testified that she tentatively identified appellant as the
taller man she saw that day and identified Johnson as the shorter man.

      The day after the robbery, Saldana reported the theft to her bank of her debit
card and discovered it already had been used. Bank records revealed unauthorized
activity at a McDonald’s and Murphy’s gas station. At Murphy’s, someone
attempted to use Saldana’s card three times with an invalid pin but the card was used
successfully at McDonald’s.

      Officer Mark Stahlin obtained surveillance video from McDonald’s showing
“a dark-colored Pontiac with a paper license plate” going through the drive-through.
The car appeared to be a Grand Prix; the people inside were not visible but the first
three digits of the license number were “47K.” According to the cashier, there were
three people in the car. At Murphy’s, Stahlin retrieved video surveillance that
showed the same black Pontiac at a gas pump. A person exited the car from the front
right passenger seat and attempted to use a card. Stahlin identified the person on the
video as appellant, “but he’s put on weight since then.” The man was wearing a large



                                          4
shiny earring in his ear that Stahlin testified was consistent with one appellant was
wearing on February 20, 2013, at the homicide division.

        Sergeant C. E. Elliott testified the McDonald’s video reflected the driver was
wearing light-colored clothes, not necessarily white, but a very light color. Elliott
identified the person in the surveillance videos from Murphy’s and McDonald’s as
appellant and stated, “He had a big star-shaped earring in his ear and he was wearing
it when he got arrested.”

        Cortez’s phone was tracked to a cellphone store in a Fiesta supermarket. The
owner, Hein Bui testified a man sold him two cell phones on February 19, 2013.
From surveillance video of the transaction, Elliott identified the seller as appellant.

        Elliott testified the black Pontiac Grand Prix was registered to Jermaine Green
at apartment 102 of the Crescent Place Apartments at 10222 South Gessner, a
location within walking distance of the Fiesta. Near apartment 102 were parked a
black Grand Prix and a white Grand Prix, also with paper plates. Surveillance was
established on both vehicles. A black male walked from the area of apartment 102
and entered the white car. Officers Nathan Carroll and Cullen Duncan began
following and after the driver committed several traffic violations, initiated a traffic
stop.

        The driver was the only occupant and identified himself as Jermaine Green
but produced no license. Carroll and Elliott identified appellant as the man in the
car. According to Elliott, “he’s gained a lot of weight.” When he first made contact
with the driver, Carroll observed the odor of marijuana. Carroll checked the name
and date of birth the man gave him and, according to the Texas driver’s license
photo, he was not that person. When Carroll confronted him, the man gave his name
as Johntay Gibson and a different date of birth. Carroll then found appellant had
three outstanding warrants.
                                           5
      Appellant was dressed all in black and Elliott observed a black ski mask laying
on the back seat. Appellant consented to a search of the vehicle and Duncan
recovered three small plastic bags of marijuana under the driver’s seat. Appellant
was arrested, taken into custody, and transported to the homicide division.

      Elliott returned from the stop to Crescent Place and saw two people walk from
the area around apartment 102 to the black Grand Prix. The taller of the two went
“into the driver’s door. Close[d] it. . . . and then they walk[ed] away.” About five
minutes later, that man entered a tan Buick Riviera parked nearby. Elliott radioed
officers to follow and when the driver committed a traffic violation he was detained.
The driver was Jermaine Green and he gave consent to search the vehicle. As a result
of the investigation, Elliott eliminated Green as a suspect but believed Johnson and
appellant were involved, as well as a third man, the lookout. The suspect developed
as the lookout was a man known as “Little E.”

      The man that had been with Green watched the traffic stop but ran into
apartment 102 when officers approached him. Officers “knocked and announced”
and the man, Brandon Johnson, came to the door; he had changed his clothes.

      After consent was given, Officer Jamie Peoples searched the apartment. From
the bedroom nightstand, Peoples took into evidence two blue “do-rags,” a black ski
mask with face holes, and a blue and white bandana. On the floor by the bed, Peoples
recovered a black do-rag. In the closet, Peoples found a safe as well as a duffle bag
containing two ski masks with face holes, one blue and one black. Peoples also found
a pair of black sweatpants in the dresser. Peoples recovered a box containing
cellphones and credit cards, one in Johnson’s name. Two sweatshirts, one blue and
hooded, and two pairs of sweatpants, one blue and one black, were found. An empty
black gun holster was recovered along with a box containing ammunition – eight
unfired PPU .380 auto rounds – a do-rag, a blue bandana, and appellant’s birth

                                         6
certificate. When the safe was opened, it contained a box of ammunition – thirty-
four Monarch .380, copper-jacketed hollow-point bullets; a ski mask, a bandana, a
tax form for Green; credit cards in Green’s name, and a state identification card for
appellant. Cortez, Saldana, and Gutierrez testified the ski masks found were similar
to those worn by the robbers.

      Pursuant to a warrant, Officer Alton Holmes searched the black Grand Prix.
He found a single black knit glove inside the map pocket of the driver’s door, and a
pair of gray and black Ridell brand sports gloves and a Boost Mobile receipt for
appellant’s phone in the glove box. Holmes also searched the white 1999 Pontiac
Grand Prix and found a black knit beanie. In the tan Buick Riviera, Holmes found
black Ridell sports gloves in the trunk.

      Chandler Bassett, a firearms examiner for the Houston Forensic Science
Center, testified it was possible the bullet jacket and cartridge case recovered from
Boost were fired from the same weapon. Further, Bassett testified, the recovered
cartridge case and the ammunition found in both the apartment closet and the safe
from the apartment were of the same brand and caliber.

      Officer Duplechain took custody of appellant and gave him the Miranda3
warnings at approximately 4:30 p.m. Appellant acknowledged that he understood
and agreed to waive his rights and give a statement, of which a visual and audio
recording was made. Duplechain left the interview at approximately 5:15 p.m. and
returned around 10:35 p.m. During the break, appellant was frequently asleep.

      During the interview conducted from 4:30 p.m. to 5:15 p.m., appellant stated
he gave Green’s name and date of birth to the officers because there was a warrant
out for his arrest. Appellant said he lived with Brandon Johnson. Appellant gave


      3
          See Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).

                                               7
Duplechain permission to look in his phone for the number of the girl whose car he
was driving, the white Grand Prix. Appellant said the black Grand Prix was Green’s
car and Green also had an old brown car. Appellant denied driving or riding in the
black Grand Prix on July 18 or 19.

      In the latter portion of the interview, appellant was shown a photo and
admitted it was him pumping gas and the time stamp was accurate. Appellant
confirmed that Johnson was there and eventually identified the third person involved
as Eric. He said they called Eric “Lil” because “He shorter than me, he a midget.”

      According to appellant, it was “their” idea and he only offered to drive.
Johnson and Eric were not wearing masks when they got out of the car but were
wearing ski masks when they returned. They removed the masks when they returned.
Appellant said he thought they were going to beat someone up until he heard a
gunshot. They showed him the gun afterwards and Eric took it when he left the car.
Appellant described it as black, a nine or 380, with a magazine. They said they
robbed Boost, appellant was given $100 of the approximate $300 taken, but denied
shooting anyone, claiming “they shot in the store.” Appellant knew from the news
the man had been shot in the chest.

      According to appellant, he was the driver, Johnson sat in the front, and Eric
sat in the back but he and Johnson switched places before they drove to McDonald’s.
After he put gas in the car, appellant got back in the driver’s seat. Appellant admitted
to selling Cortez’s phone but claimed Johnson gave it to him. Appellant denied
calling his girlfriend, Kenisha, on the phone. At approximately 11:30 p.m., appellant
invoked his right to an attorney and Duplechain immediately concluded the
interview.

      Duplechain then questioned appellant’s brother, Joseph Davis. Davis was
unaware appellant had been taken into custody until he was interviewed by
                                           8
Duplechain. Davis said that appellant had spoken about the robbery and told Davis
that he “didn’t mean to kill him . . . it just happened . . . the plan wasn’t to go in and
kill him.” Davis did not know who the shooter was.

      Washington was developed as a third suspect during that interview and Davis
identified him from a photo spread. Duplechain testified that phone calls to
Washington in the immediate aftermath of appellant’s arrest indicated a relationship
between Washington and appellant. According to Duplechain, “Washington would
have had the perfect vantage point to – to say who the shooter was because he entered
the store with the shooter. . . . And he would have known who the shooter was and
who the driver was.” Duplechain testified that Washington was the one person who
had seen appellant pull the trigger.

      Phone records revealed that in the hours between the shooting and midnight,
Johnson called appellant and then there were three calls between appellant and
Johnson. Immediately after that, appellant accessed a news channel from his phone.
From the phone records Duplechain concluded there was a close relationship
between appellant and Washington. Further, appellant’s explanation that Johnson
and Washington were close was not borne out because they had minimal contact
with each other.

      According to appellant’s statement, only he, Washington or Johnson would
have had access to Cortez’s phone. The surveillance video from Boost showed
Cortez’s phone was placed in the shooter’s pocket. There had been a call from
Cortez’s phone to appellant’s girlfriend, Kenisha, within three minutes after the
phone was taken. Phone records revealed calls from both appellant’s and Johnson’s
phones to Kenisha that Duplechain believed suggested Johnson was looking for
appellant.



                                            9
      Elliott testified that appellant is “[r]ight at six feet tall” and he was personally
part of taking that measurement. Brandon Johnson is approximately five feet eight
inches. Eric Washington is approximately five feet three inches. Duplechain
admitted that the State’s theory that Washington was the lookout meant that both
Johnson and appellant were taller. Based upon his review of the various surveillance
videos and photos and his contact with Johnson, Washington, and appellant,
Duplechain developed the opinion that the shooter was appellant.

      Elliott testified the appearance of the men in the Melrose surveillance video
going to and fleeing from Boost were consistent with appellant and Washington
being those men. Washington gave three statements to Elliott. Elliott testified those
statements did not change his mind regarding the suspects in the case. Charges were
filed against appellant, Johnson, and Washington for capital murder.

                         II.   SUFFICIENCY OF THE EVIDENCE

      In his first three issues, appellant asserts the evidence is insufficient to support
his conviction for capital murder as either a principal, a party, or a co-conspirator. A
person may be charged with an offense as a principal, a direct party, or a co-
conspirator. See Tex. Penal Code § 7.01 (person is “criminally responsible” if
offense is committed by his own conduct or by the “conduct of another for which he
is criminally responsible”); Tex. Penal Code § 7.02(a)(2) (describing criminal
responsibility for direct party); Tex. Penal Code § 7.02(b) (describing criminal
responsibility for party as co-conspirator). As explained below, we conclude the
evidence is sufficient to support appellant’s conviction as a principal.

      A. Standard of Review

      In determining sufficiency of the evidence, we consider all the evidence, both
direct and circumstantial, and any reasonable inferences which can be drawn from


                                           10
the evidence. See Clayton v. State, 235 S.W.3d 772, 778 (Tex. Crim. App. 2007).
The jury is the sole judge of the credibility of the witnesses and the evidence
presented. See Villani v. State, 116 S.W.3d 297, 301 (Tex. App.—Houston [14th
Dist.] 2003, pet. ref’d.). We view all evidence in the light most favorable to the
verdict and determine, based on that evidence and any reasonable inferences
therefrom, whether any rational fact finder could have found the elements of the
offense beyond a reasonable doubt. Gear v. State, 340 S.W.3d 743, 746 (Tex. Crim.
App. 2011). We do not sit as the thirteenth juror and may not substitute our judgment
for that of the fact finder by re-evaluating the weight and credibility of the evidence.
Isassi v. State, 330 S.W.3d 633, 638 (Tex. Crim. App. 2010). We defer to the jury’s
responsibility to fairly resolve conflicts in testimony, weigh the evidence, and draw
all reasonable inferences from basic facts to ultimate facts. Id. Our duty as reviewing
court is to ensure the evidence presented actually supports a conclusion that the
defendant committed the crime. Williams v. State, 235 S.W.3d 742, 750 (Tex. Crim.
App. 2007).

      B. Analysis

      To obtain a conviction for capital murder, the State was required to prove that
appellant murdered the complainant and that the murder was intentionally
committed during the course of a robbery. See Tex. Penal Code § 19.03(a)(2).
Appellant first argues that there is legally insufficient evidence that he caused the
complainant’s death.

      Specifically, appellant points out neither Cortez nor Saldana identified him as
the shooter. Elliott could not identify appellant as the shooter from the Boost
surveillance video and the shooter wore light-colored gloves but those were not the
gloves found in the white Grand Prix appellant was driving when arrested. Appellant
refers to Duplechain’s failure to provide the specific heights of the suspects in his

                                          11
offense report. He further claims appellant was only an inch or two taller than
Johnson. Also, the lineup identifications by Castro and Gutierrez were inconclusive.
Castro was only sixty to seventy percent certain she recognized appellant and said
he was the short one, while Gutierrez was unsure as between appellant and another
man as being the taller man she saw the day of the robbery. Appellant also argues
the DNA evidence linking him to some of the evidence seized does not establish
whether he touched those items before, during, or after the incident and fails to
account for the fact all three suspects lived at the apartment and comingled their
property. Lastly, appellant relies upon his admission that he acted as the driver for
Johnson and Washington.

      The jury heard the evidence set forth above. To summarize, Cortez and
Saldana testified that that the taller of the two men shot Waraich. Castro and
Gutierrez testified the two men were African-American and Gutierrez noticed one
was taller than the other. The jury heard evidence that appellant is six feet tall and
Johnson is five feet eight, a difference of four inches. Although Washington is
shorter than both men, there was other evidence from which a rational trier of fact
could find appellant was the shooter.

      The shooter took Cortez’s cellphone and placed it in his pocket. Within three
minutes of the robbery, a phone call was placed from Cortez’s cellphone to
appellant’s girlfriend, Kenisha. Appellant sold Cortez’s cellphone to Bui the day
after the robbery.

       Montalvo described the suspect’s vehicle as a black Pontiac Grand Prix with
paper plates, license number 47K8036. Elliott testified that less than 29 minutes after
the vehicle fled the scene, Saldana’s credit card was used at McDonald’s and within
42 minutes of the shooting, appellant vacated the front right passenger seat of the
black Grand Prix and tried to use Saldana’s card at Murphy’s gas station.

                                          12
      Appellant told Duplechain that he was one of the three men involved in the
robbery, although he claimed he was only the driver. However, according to Davis,
appellant felt bad about it and that “he didn’t mean to kill him, but he said it just
happened. He didn’t know him . . . the plan wasn’t to go in and kill him.”

       During a search of the apartment where appellant lived with Johnson, officers
found ammunition of the same caliber and manufacturer as the bullet recovered from
Waraich’s body and the cartridge recovered from Boost. The ammunition was in a
box with appellant’s birth certificate along with a bandana linked to appellant by his
DNA. When appellant was stopped driving the white Grand Prix, a black ski mask
was in the backseat and he gave a false name. Gray and black gloves, similar to the
ones the shooter is shown wearing in the surveillance video from Boost, were found
in the black Grand Prix and linked to appellant by DNA.

      Although appellant stated that the extent of his role in the crime was as driver
for Johnson and Washington, the jury considered evidence to the contrary. Viewing
all the evidence in the light most favorable to the verdict, we hold a rational trier of
fact could have found beyond a reasonable doubt that appellant caused Waraich’s
death. See Gear, 340 S.W.3d at 746. We therefore overrule issue one.

      Having found the evidence legally sufficient to support appellant’s conviction
as a principal, it is unnecessary to determine whether the evidence is legally
sufficient to support his conviction as a party or co-conspirator. We therefore do not
address issues two and three.

                              III.   MOTION TO SUPPRESS

      In issues four and five, appellant contends the trial court erred in denying his
motion to suppress the second part of his videotaped statement because officers
failed to re-warn him in accordance with Miranda v. Arizona, 384 U.S. 436, 86 S.

                                          13
Ct. 1602, 16 L. Ed. 2d 694 (1966), and article 38.22 of the Texas Code of Criminal
Procedure. Appellant’s written motion to suppress did not raise the issue presented
on appeal. The record of the hearing on appellant’s motion to suppress reflects the
issue was not raised at that time either. Rather, counsel stated to the trial court, “I
just want to put in the record that I’m adopting the arguments made in my motion to
suppress. That is my argument. I don’t think I need to read it to you or re-argue it.
But those are my arguments and with that we rest.” However, during Officer
Duplechain’s testimony at trial, counsel objected that the second part of the
interview should be suppressed because appellant was not re-warned after a five-
hour gap. The trial court overruled the objection and admitted the evidence.

      When reviewing a trial court’s decision on a motion to suppress regarding a
custodial interrogation, we must conduct a bifurcated review. Alford v. State, 358
S.W.3d 647, 652 (Tex. Crim. App. 2012). We afford almost total deference to the
trial court’s rulings on questions of historical fact and credibility, and review de novo
only the trial court’s rulings on application of law to fact questions that do not turn
upon credibility and demeanor. Id. The evidence presented on a motion to suppress
is viewed in the light most favorable to the trial court’s ruling. State v. Kelly, 204
S.W.3d 808, 818 (Tex. Crim. App. 2006). We will affirm the trial court’s ruling if it
is correct under any theory of law applicable to the case. Id. at 855–56.

      The trial court entered written findings of fact and conclusions of law
regarding appellant’s motion to suppress. As pertinent to the failure to re-warn, they
are as follows:

                               FINDINGS OF FACT

      ...
      23. The recorded statement lasts approximately 7 hours, (from
      approximately 4:30 p.m. until approximately 11:30 p.m.) There is a

                                           14
break during the recorded interview where Officer Duplechain leaves
the room to check on some of the information the Defendant had
provided and to check information being provided to other officers by
other witnesses.
24. The Court finds that Officer Duplechain did not rewarn the
Defendant when he returned to interview him at 10:30 p.m. on February
20, 2013.
25. The nature of the questioning during the first and second portions
of the approximate 7 hour recorded interview make it clear that the
second portion of the interview is merely a continuation of the first
interview.
26. The Court finds that the Defendant’s statement ended at 11:30 p.m.
when the Defendant stated he did not want to discuss the case any
longer and wished to speak to an attorney.
27. The Court finds based on the totality of circumstances, that although
there was a break in the interview to ascertain other developing
information, the second portion of the defendant’s statement was
related to the same offense and merely a continuation of the first portion
of the statement and that the entire seven hours of the recorded
statement is one continuous interview.
28. It is clear from the video and audio recordings of the Defendant’s
interview that he was competent to waive his rights and that he
understood the nature of the interviews and the seriousness of the
offense. The Defendant asks his own questions of the Officer. The
Court finds that the Defendant was competent and fully aware of what
was occurring.
29. The Court finds that the Defendant evidenced his understanding of
his rights and waiver thereof by affirmatively waiving each of the rights
on the recording and by in fact invoking his right to an attorney at the
end of the approximately 7 hour interview.

                     CONCLUSIONS OF LAW
...
12. The statutory Miranda warnings given during the first portion of
the Defendant’s recorded interview remained effective in the
subsequent second portion of the recorded interview.
13. The Court finds that the mere passage of time did not transform the
                                   15
      second portion of the recorded interview into a separate interview and
      that new statutory Miranda warnings were not necessary.

      The record reflects that Officer Duplechain gave appellant the Miranda
warnings at approximately 4:30 p.m. Duplechain left the interview at approximately
5:15 p.m. At 6:42 p.m., Officer Stahlin entered the room, exiting three minutes later.
During the time Duplechain was gone, Sergeant Elliott also entered the room.
Duplechain returned around 10:35 p.m. At approximately 11:30 p.m., appellant
invoked his right to an attorney and Duplechain immediately concluded the
interview. Appellant’s claim is that the Miranda warnings had to be given before
questioning resumed after the five-hour lapse.

      We first note that the mere passage of time does not automatically vitiate the
prior warnings. See Jones v. State, 119 S.W.3d 766, 773–74 n. 13 (Tex. Crim. App.
2003); Ex parte Bagley, 509 S.W.2d 332, 337–38 (Tex. Crim. App. 1974). In
addition, we are to consider whether the second interrogation was conducted by a
different person; the second interrogation related to a different offense, and if the
officer ever asked if he remembered those warnings or wished to waive or invoke
them. Jones, 119 S.W.3d at 773–74 n. 13.

      In Bagley, the assistant district attorney warned the defendant before he made
the first statement. 509 S.W.2d at 335. Subsequently, the defendant gave a second
statement to the same assistant district attorney. Id. at 336–37. The defendant in
Bagley was warned before the second statement. Id. The Court determined the
second warnings were sufficient but also concluded the warnings given six to eight
hours earlier, during the defendant’s first statement, satisfied Miranda’s
requirements as to the second statement. Bagley, 509 S.W.2d at 337.

      Similarly, in Miller there was a lapse of four days between the time Miranda
warnings were given and the statement in question was made, without additional
                                         16
warnings. Miller v. State, 196 S.W.3d 256, 266 (Tex. App.—Fort Worth 2006, pet.
ref’d). The court determined the failure to warn the defendant again did not violate
Miranda where the defendant met with the officer who had given him the warnings
on both occasions and the questioning dealt with the same subject on each occasion.
Id. at 266-67.

      In Jones, the defendant was warned before the first statement was given but
was not warned again before giving a second statement nine or ten days later. 119
S.W.3d at 771. The Court found the defendant’s Miranda rights were violated. Id. at
774. However, the Court recognized it was not simply the passage of time between
the two statements but the additional facts that the two interrogations were not by
the same officer or about the same offense. Id. at 774 n.13.

      Appellant relies upon Franks in support of his argument. See Franks v. State,
712 S.W.2d 858, 861 (Tex. App.—Houston [1st Dist.] 1986, pet. ref’d). In that case,
the defendant was warned at the beginning of the first custodial interrogation at
11:53 a.m. Id. At 12:30 p.m., officers stopped the interrogation to talk with other
witnesses. Id. The interrogation continued at 4:02 p.m. and ended at 4:23 p.m. Id.
The defendant was not warned again at 4:02 p.m. but was asked, and acknowledged,
that he had been advised of his Miranda rights earlier. The court determined the
statement was admissible. Appellant contends the fact that the defendant was
reminded of the earlier warnings “was critical” to the court’s decision. We disagree.

      The Franks court held “the second phase of the interrogation was merely a
continuation of the interrogation process, and that under the circumstances
presented, there was not such a “break” in the interrogation proceeding as to require
the giving of new warnings. The [defendant] was properly admonished at the
beginning of the interrogation, and at the time the second phase of the interrogation

                                         17
started, he acknowledged that he had been advised of his Miranda rights.” Franks,
712 S.W.2d at 861. We cannot agree that this holding was dependent upon the
defendant having been reminded of his rights. The court’s holding is based first upon
the fact there was no “break” that required additional warnings and second that
proper admonishments were initially given. Id. While the reminder of the warnings
is a factor to be considered, see Jones, 119 S.W.3d at 773–74 n. 13, its absence is
not dispositive.

      Likewise, a reminder of earlier warnings was one of the circumstances in
Bible supporting that two interrogation sessions were part of a single interview for
Miranda purposes. Bible v. State, 162 S.W.3d 234, 242 (Tex. Crim. App. 2005). In
that case, the lapse between sessions was three hours. The Court noted that
“[a]lthough different officers conducted questioning during each session and each
session focused on a different set of crimes, the same officers were present during
both sessions.” Id. The Court then recognized that an officer reminded defendant of
his earlier waiver of rights; secured his acknowledgment that he had previously been
given warnings; briefly reminded him of his rights; and secured his assent to
continue. Id. Thus the Bible court did not rely solely upon the reminder; it was one
of the circumstances establishing Miranda was satisfied. Id.

      Appellant also asserts a lack of sleep is a relevant consideration when
determining the voluntariness of a defendant’s waiver and points to the fact that he
fell asleep in the interview room and had to be awakened by Duplechain at 10:30
p.m. The videotape reveals appellant was also asleep before Duplechain entered the
room the first time. This court has recognized that lack of sleep is a circumstance to
consider in determining whether a statement was made voluntarily. Martinez v.
State, 513 S.W.3d 87, 93 (Tex. App.—Houston [14th Dist.] 2016, no pet.). However,
lack of sleep alone will not render a defendant’s confession involuntary. Barney v.
                                         18
State, 698 S.W.2d 114, 121 (Tex. Crim. App. 1985). Appellant did not complain of
being tired or needing to rest. See Hernandez v. State, 421 S.W.3d 712, 718 (Tex.
App.—Amarillo 2014, pet. ref’d) (concluding record did not indicate defendant’s
inculpatory statements were influenced by fatigue even though interrogation was the
defendant’s third in 48 hours and began at 11:00 p.m. when defendant did not
complain of tiredness); see also Chambers v. State, 866 S.W.2d 9, 20 (Tex. Crim.
App. 1993) (lack of sleep through the fault of the defendant will not support a finding
of involuntariness). The record does not reflect appellant was intentionally deprived
of sleep. See Rodriquez v. State, 934 S.W.2d 881, 890 (Tex. App.—Waco 1996, no
pet.) (concluding that officers’ knowledge defendant claimed to have been awake
for at least 36 straight hours did not establish he was purposefully deprived of sleep).

      In this case the lapse of time between the two statements was approximately
five hours. Both the first and second parts of the interview were conducted by the
same officer and that officer gave appellant proper Miranda warnings before the
interview began. The record reflects that during the first part of the interview
Duplechain was attempting to determine appellant’s whereabouts on the day in
question. Duplechain left the interview to verify appellant’s claims stating, “I’ll be
back in a little while, allright?” When Stahlin entered the room, he asked appellant
his name, birthdate, age, address, phone number, height and weight and requested
the name, phone number and address of the person that appellant said owned the
white car that he had been driving. At some point while Duplechain was absent,
Elliott entered and took appellant out of the room, briefly, to photograph him. When
Duplechain returned, the interview continued and Duplechain discussed his findings
with appellant. Thus, the record does not demonstrate that appellant was interrogated
about different offenses in the two parts of the interview. Further, it does not show
that appellant was interrogated about the offense by different officers.

                                          19
      Furthermore, the record in this case reflects that appellant was well aware of
his rights, as he invoked those rights within one hour of the continuation of the
interview. The record supports the trial court’s findings and conclusions. In light of
all the circumstances discussed above, we conclude the trial court did not abuse its
discretion in overruling appellant’s objection to the admission of the second part of
his statement. Bagley, 509 S.W.2d at 337. Accordingly, appellant’s fourth and fifth
issues are overruled.

                                  IV.    JURY CHARGE

      In his next two issues, appellant claims there was error in the court’s charge
to the jury. In his sixth issue appellant argues the trial court erred in refusing to
include his requested jury charge on whether his videotaped statement comported
with article 38.22. See Tex. Code Crim. Proc. art. 38.22 §§ 2(a) and 3(a)(2).

      When we review a claim of jury-charge error, we first determine whether there
is error in the charge. Barrios v. State, 283 S.W.3d 348, 350 (Tex. Crim. App. 2009).
“[W]e review alleged charge error by considering two questions: (1) whether error
existed in the charge; and (2) whether sufficient harm resulted from the error to
compel reversal.” Ngo v. State, 175 S.W.3d 738, 744 (Tex. Crim. App. 2005). Error
that has been properly preserved must be reversed unless it is harmless. Almanza v.
State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1985). Error that has not been properly
preserved is reversible only if it was so serious that the defendant did not have a “fair
and impartial trial.” Id. In other words, if a defendant has preserved his claim of jury-
charge error, we must reverse if the defendant suffered “some harm” to his rights,
but if the defendant has not preserved his claim, we must reverse only if the
defendant suffered “egregious harm.” Ngo, 175 S.W.3d at 743–44; Almanza, 686
S.W.2d at 171.


                                           20
      The record reflects appellant requested a more detailed voluntariness
instruction than the one contained in the trial court’s charge. In his brief, appellant
identifies only the alleged failure to re-warn him at 10:30 p.m. as grounds for such
an instruction. Accordingly, that is the only ground we address.

      Section 7 of article 38.22 provides that “[w]hen the issue is raised by the
evidence, the trial judge shall appropriately instruct the jury, generally, on the law
pertaining to such statement.” Tex. Code Crim. Proc. art. 38.22, § 7. “The issue”
refers to compliance with the statutory warnings set out in sections 2 and 3 of article
38.22, and the voluntariness of the defendant’s waiver of rights. Oursbourn v. State,
259 S.W.3d 159, 176 (Tex. Crim. App. 2008); see also Aldaba v. State, 382 S.W.3d
424, 430 (Tex. App.—Houston [14th Dist.] 2009, pet. ref’d); Tex. Code Crim. Proc.
art. 38.22 §§ 2, 3 (incorporating requirements of Miranda). For the issue to be
“raised by the evidence,” there must be a genuine factual dispute. Oursbourn, 259
S.W.3d at 176; Aldaba, 382 S.W.3d at 430. We review the trial court’s refusal to
submit such an instruction in the jury charge for abuse of discretion. See Wesbrook
v. State, 29 S.W.3d 103, 122 (Tex. Crim. App. 2000).

      Here, there was no factual dispute raised by the evidence as contemplated by
section 7 and appellant does not assert otherwise. Although appellant argued the
latter part of his videotaped interview was a second interrogation that required
additional warnings, the fact that the interview ceased and then resumed at 10:30
p.m. with no additional warnings given was never in dispute. See Brownlee v. State,
944 S.W.2d 463, 467, 468 (Tex. App.—Houston [14th Dist.] 1997, pet. ref’d)
(concluding issue of section 7 voluntariness was not raised by defendant’s testimony
explaining the reason he talked to the police.”). Because no factual dispute was
raised by the evidence to warrant an instruction under section 7, the trial court did



                                          21
not err in refusing the requested instruction. We therefore overrule appellant’s sixth
issue.

         Appellant further asserts in his seventh issue that the trial court erred by failing
to sua sponte include an article 38.23 due process instruction because the second part
of his videotaped statement was taken at a time when he was in need of sleep.
Appellant claims the police “exploited his sleepy condition” as evidenced by the fact
that he slept in the interrogation room and was awakened by Officer Duplechain at
10:30 p.m.

         The trial court has a duty to give an article 38.23 instruction sua sponte if three
requirements are met: (1) evidence heard by the jury raises an issue of fact, (2) the
evidence on that fact is affirmatively contested, and (3) that contested factual issue
is material to the lawfulness of the challenged conduct in obtaining the evidence.
Contreras v. State, 312 S.W.3d 566, 574 (Tex. Crim. App. 2010). There must be a
genuine dispute about a material issue of fact before an article 38.23 instruction is
warranted; if there is no disputed fact issue, the legality of the conduct is determined
by the court alone, as a matter of law. Madden v. State, 242 S.W.3d 504, 509–10
(Tex. Crim. App. 2007). For there to be a conflict in the evidence that raises a
disputed fact issue, there must be some affirmative evidence in the record that puts
the existence of that fact in question. Id. at 513.

         In the instant case, there was no contested question of fact – it was never
disputed that appellant was asleep before his videotaped interview resumed. The
mere fact that appellant was asleep does not, without more, raise a disputed fact issue
as to whether he was “sufficiently awake to be interviewed.” See Contreras v. State,
312 S.W.3d 566, 576 (Tex. Crim. App. 2010) (in rejecting defendant’s contention
that he was entitled to a jury instruction that lack of sleep, by itself, rendered his
confession involuntary, the court concluded “that a lack of sleep would not, by itself,

                                              22
render a confession involuntary under due process”). Appellant does not refer this
court to any evidence raising a disputed fact issue that would warrant an instruction
under article 38.23. See Jackson v. State, 468 S.W.3d 189, 199-200 (Tex. App.—
Houston [14th Dist.] 2015, no pet.) (holding defendant was not entitled to an article
38.23 instruction where there was no disputed fact issue on whether there was a
reasonable alternative to impoundment). Accordingly, we overrule appellant’s
seventh issue.

                               V.     CLOSING ARGUMENT

      In appellant’s final issue he asserts that he was denied effective assistance of
counsel when the trial court instructed counsel not to argue that the five-hour span
between the first and second part of his videotaped statement rendered the second
part involuntary for the purpose of the general voluntariness instruction given by the
trial court pursuant to article 38.22, section 6. See Tex. Code Crim. Proc. art. 38.22
§ 6. We first note that although appellant presents this as a claim of ineffective
assistance, it is, in fact, a claim that the trial court erred in instructing counsel that
he would not be allowed to make such an argument.

      Proper jury argument encompasses a summation of the evidence presented at
trial and reasonable deductions from that evidence. Guidry v. State, 9 S.W.3d 133,
154 (Tex. Crim. App. 1999). Additionally, argument must be limited to the proper
scope of jury deliberation as defined by the court’s charge. Barragan v. State, 641
S.W.2d 380, 382 (Tex. App.—El Paso 1982, no pet.). Having found above that the
trial court did not err in finding additional warnings were not required when the
videotaped interview resumed at 10:30 p.m., and that the trial court did not err in its
instructions to the jury, we cannot say the trial court’s restriction on argument was
erroneous. See id. Appellant’s eighth issue is overruled.



                                           23
                                VI.    CONCLUSION

      Having overruled all of appellant’s issues, we affirm the trial court’s
judgment.




                                      /s/    John Donovan
                                             Justice


Panel consists of Chief Justice Frost and Justices Christopher and Donovan.
Do Not Publish — Tex. R. App. P. 47.2(b).




                                        24
