Opinion filed September 10, 2015




                                      In The


        Eleventh Court of Appeals
                                    __________

                              No. 11-13-00027-CR
                                    __________

                 KEVIN SCOTT KELLERBY, Appellant
                                         V.
                     THE STATE OF TEXAS, Appellee


                    On Appeal from the 104th District Court
                            Taylor County, Texas
                        Trial Court Cause No. 18509B


                     MEMORANDUM OPINION
      The jury convicted Kevin Scott Kellerby of continuous sexual abuse of a child
and assessed his punishment at confinement in the Institutional Division of the Texas
Department of Criminal Justice for a term of fifty-five years and a fine of $10,000.
See TEX. PENAL CODE ANN. § 21.02 (West Supp. 2014). The trial court sentenced
Appellant accordingly. We affirm.
      Appellant’s conviction for continuous sexual abuse was based on allegations
by Appellant’s daughter, S.E.K., that Appellant penetrated her sexual organ with his
sexual organ on multiple occasions. On appeal, Appellant asserts that the trial court
erred when it denied his motion to suppress. Appellant also argues that the trial court
erred when it allowed the State to make improper jury arguments regarding
Appellant’s right to a jury trial, right to due process, and right to confront and cross-
examine the witnesses brought against him.
      In his first issue, Appellant asserts that the trial court committed reversible
error when it denied his motion to suppress “for violations of the Fourth, Fifth, Sixth
and Fourteenth Amendments to the United States Constitution, Article I, Section 9
of the Texas Constitution, and Articles 38.22 and 38.23 of the Texas Code of
Criminal Procedure.”1 In the “Summary of the Argument” section in his brief,
Appellant further argues that “[p]olice action in enticing [him] to give an interview
for a supposed polygraph, making representations of false material facts and that
Appellant’s statement would spare the child further harassment, and preventing
Appellant from leaving when he attempted to do so rendered his statement
involuntary and inadmissible.”          Appellant did not raise any of these specific
objections in the trial court, nor does it appear from the evidence that there was ever
an issue about a polygraph, about sparing the child victim further harassment, or
about an attempt by Appellant to leave the interview. Appellant alleges in the
argument section of his brief that the detective that interrogated him made an
impermissible promise that “was of such a character as would likely cause a person
to speak untruthfully and ultimately even make Appellant inclined to admit to a
crime he didn’t commit.” Because Appellant’s contention in the body of his brief
comports with the arguments that he made in the trial court, we will address that
specific argument in our review of Appellant’s first issue.




      1
       See TEX. CODE CRIM. PROC. ANN. art. 38.22 (West Supp. 2014), art. 38.23 (West 2005).

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      In his motion to suppress, Appellant argued that his statement to law
enforcement was involuntary and was in violation of the Due Process Clause and of
Article 38.21 of the Texas Code of Criminal Procedure.2 Specifically, he alleged
that the detective rendered his statement involuntary when the detective undermined
his right and desire to remain silent, when he purported to provide a legal analysis
of the case to Appellant, and when he made an impermissible promise.
      The trial court held a pretrial hearing on the motion to suppress. Detective
Eric Vickers of the Abilene Police Department testified that he interviewed
Appellant as part of an investigation regarding allegations made by Appellant’s
daughter. Appellant rode with Detective Vickers from Appellant’s home to the Law
Enforcement Center where the interview was conducted; Appellant’s mother
followed behind them in her own vehicle. Detective Vickers testified that Appellant
was not under arrest at the time that Appellant entered the interview room and that
he advised Appellant that Appellant was not under arrest and was free to leave at
any time. Detective Vickers also read Appellant the Miranda3 warnings.
      The interview was recorded, and during the hearing, the State played the
recording for the trial court. Detective Vickers emphasized throughout the interview
that it was important for him to hear Appellant’s side of the story. Detective Vickers
explained, “Your story, what we talk about in here, defines whether you are a
monster or whether you are a human being who made a mistake once.” After over
an hour had passed, the following exchange occurred between Appellant and
Detective Vickers:
            APPELLANT: Let’s say that it occurred one time . . . if it
      occurred one time . . . and I’m not saying it did.


      2
       See U.S. CONST. amend. XIV; CRIM. PROC. art. 38.21.
      3
       Miranda v. Arizona, 384 U.S. 436 (1966).

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             DETECTIVE VICKERS: Right, we’re speaking hypothetically.
            APPELLANT: I’m not saying I did, but what would that mean
      to me from your point of view, legally?
            DETECTIVE VICKERS: Well, the first thing that it would mean
      to me, legally, is that I’m not going to file the higher charge on you.
      Okay. The second thing that it would mean to me is that you’re a real
      person.
A few minutes later, Detective Vickers told Appellant:
              Legally speaking, whether it’s one time or twenty, makes a
      difference. But what makes the most difference is neither one of those
      will make a difference if you give me a b.s. story that’s not believable
      and we go before a jury and your daughter gets up on the stand and
      testifies and tells them exactly what she told the forensic interviewer in
      detail, step by step, and how it felt to her. And then they look over at
      you sitting with next to your attorney. And your attorney, you know,
      stands quiet and gets up there and tells them, you know, that, you know,
      you were looking at her medically and that you did give her a bath once.
             ....
            They are going to look and listen to that defense attorney and
      they’re going to say he is full of s--t. And they’re going to look at that
      eleven-year-old little girl sitting on the stand, and then they’re going to
      look at you and they’re going to call you a monster.
Approximately twenty minutes later, Appellant admitted that it happened once.
Detective Vickers submitted the case to the district attorney’s office as an aggravated
sexual assault case; however, Appellant was charged and convicted with continuous
sexual abuse.
      During the suppression hearing, Appellant testified that he felt that there were
only two options: that he was guilty of one act or more than one act; “[t]here was no
innocence presumed.” When asked whether he made the admission voluntarily,
Appellant responded that he believed that he only had the choice between whether
he committed the act once or more than once. He said that he probably would not

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have admitted to the one time if he had been given the choice to say that he was
innocent.
      The State argued that the question asked by Appellant related to what it would
mean if it occurred one time, not what it would mean if Appellant confessed to only
one time. The State, however, conceded that it would have been an impermissible
promise if Detective Vickers had told Appellant that he would file only the lesser
charge if Appellant confessed to committing the act only one time. Defense counsel
responded that the State’s argument was too pedantic: “[W]e all understand that
when [Appellant] asked the detective that, what he is asking is amounting to, [i]f I
tell you it happened one time, then what effect does that have legally?”
      The trial court found that Appellant made the statement voluntarily, and it
denied Appellant’s motion to suppress. The trial court entered the following
pertinent findings of fact and conclusions of law: (1) Appellant voluntarily agreed
to go to the LEC for questioning; (2) Appellant was not in custody and was not under
arrest at the beginning of the interview; (3) Detective Vickers gave Appellant his
Miranda warnings and also advised Appellant that he was not under arrest and free
to leave at any time; (4) Detective Vickers admitted to defense counsel that his
interview strategy was to give Appellant two choices, which were that Appellant
sexually abused his daughter one time or that Appellant sexually abused his daughter
several times; (5) Appellant asked Detective Vickers, “[I]f I tell you it happened one
time, then what effect does that have legally?”; (6) in response to Appellant’s
question, Detective Vickers said, “[I]t means I’m not going to file the higher charge”;
(7) despite that exchange, Appellant understood that he had the right and the option
to tell the absolute truth and that he had the right to say that he did not sexually abuse
his daughter at all; (8) the detectives never coerced or threatened Appellant in any
way; (9) the detectives never offered Appellant any money; (10) the detective never


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promised Appellant anything; (11) the detective did not give Appellant legal advice;
and (12) Appellant’s statements to Detective Vickers were voluntarily given.
       We review a trial court’s ruling on a motion to suppress under a bifurcated
standard of review. Carmouche v. State, 10 S.W.3d 323, 327 (Tex. Crim. App.
2000). We give great deference to the trial court’s findings of historical facts as long
as the record supports the findings. Guzman v. State, 955 S.W.2d 85, 87 (Tex. Crim.
App. 1997). Because the trial court is the exclusive factfinder, the appellate court
reviews evidence adduced at the suppression hearing in the light most favorable to
the trial court’s ruling. Carmouche, 10 S.W.3d at 327. We also give deference to
the trial court’s rulings on mixed questions of law and fact when those rulings turn
on an evaluation of credibility and demeanor. Guzman, 955 S.W.2d at 87. Where
such rulings do not turn on an evaluation of credibility and demeanor, we review the
trial court’s actions de novo. Id.
      A defendant’s statement may be used in evidence against him if he made it
freely and voluntarily and without compulsion or persuasion.             CRIM. PROC.
art. 38.21. A statement is inadmissible if it was induced by a promise of some benefit
to the defendant and the promise was positive, was made or sanctioned by someone
in authority, and was of such an influential nature that it would cause a defendant to
speak untruthfully. Fisher v. State, 379 S.W.2d 900, 902 (Tex. Crim. App. 1964);
see also Martinez v. State, 127 S.W.3d 792, 794 (Tex. Crim. App. 2004) (listing the
requirements); Henderson v. State, 962 S.W.2d 544, 564 (Tex. Crim. App. 1997)
(listing same); Muniz v. State, 851 S.W.2d 238, 254 (Tex. Crim. App. 1993) (listing
same); Jacobs v. State, 787 S.W.2d 397, 399 (Tex. Crim. App. 1990) (listing same);
Washington v. State, 582 S.W.2d 122, 124 (Tex. Crim. App. [Panel Op.] 1979)
(listing and explaining same). Whether the confession was true or false is not
relevant to the determination of whether the confession was voluntary. Martinez,
127 S.W.3d at 794–95. “[I]f the influence applied was such as to make the defendant
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believe his condition would be bettered by making a confession, true or false, then
the confession should be excluded.” Fisher, 379 S.W.2d at 902.
      On appeal, the State contends that Detective Vickers did not make a positive
and unequivocal promise to Appellant. Instead, Appellant asked a hypothetical
question, and Detective Vickers responded with a hypothetical answer. We agree
that Detective Vickers did not make a positive promise to Appellant. To be a
“positive” promise, the promise “must carry the suggestion of a quid pro quo.”
Hill v. State, 902 S.W.2d 57, 59 (Tex. App.—Houston [1st Dist.] 1995, pet. ref’d)
(citing Smith v. State, 779 S.W.2d 417, 428 n.6 (Tex. Crim. App. 1989)). The trial
court found that “Appellant asked Detective Vickers, ‘[I]f I tell you it happened one
time, then what effect does that have legally?’” However, the record shows that
Appellant actually asked Detective Vickers, “[I]f it occurred one time . . . what
would that mean to me from your point of view, legally?” (emphasis added). Thus,
Detective Vickers did not tell Appellant that, if Appellant confessed to committing
the act only one time, he would file only the lesser charge. Rather, Detective Vickers
told Appellant that, if the act had only occurred one time, he would file only the
lesser charge. The record does not indicate that there was ever a conversation in
which Detective Vickers promised Appellant something in return for his confession.
Furthermore, Appellant did not testify that he confessed because Detective Vickers
promised him a lesser charge but, instead, testified that he probably would not have
confessed to the one time if he had been given the choice that he was innocent.
Appellant, however, was given the choice to remain silent. He was given his
Miranda warnings and was also told that he was free to leave several times during
the interview. He never invoked his right to remain silent, nor did he request to
leave. He agreed to stay in the interview room and talk to Detective Vickers.
Therefore, we hold that the trial court did not abuse its discretion when it found that


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Appellant voluntarily gave his statement to police and when it denied Appellant’s
motion to suppress. We overrule Appellant’s first issue.
      In his second issue, Appellant argues that the trial court erred when it allowed
the State to make improper references during closing arguments to Appellant’s right
to a jury trial, right to due process, and right to confront witnesses. Appellant did
not object to the State’s closing argument at trial. A defendant’s failure to object to
jury argument waives the issue on appeal, even if the issue is constitutional in nature.
Threadgill v. State, 146 S.W.3d 654, 670 (Tex. Crim. App. 2004); Chapman v. State,
349 S.W.3d 241, 247 (Tex. App.—Eastland 2011, pet. ref’d); see also TEX. R.
APP. P. 33.1. Therefore, Appellant has waived his right to raise this issue on appeal.
Appellant’s second issue is overruled.
      We affirm the judgment of the trial court.




                                                      JIM R. WRIGHT
                                                      CHIEF JUSTICE


September 10, 2015
Do not publish. See TEX. R. APP. P. 47.2(b).
Panel consists of: Wright, C.J.,
Willson, J., and Bailey, J.




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