                          NUMBER 13-17-00056-CR

                             COURT OF APPEALS

                    THIRTEENTH DISTRICT OF TEXAS

                      CORPUS CHRISTI - EDINBURG


DONALD EUGENE LISCOTTI,                                                      Appellant,

                                                v.

THE STATE OF TEXAS,                                                            Appellee.


                     On appeal from the 36th District Court
                          of Aransas County, Texas.


                        MEMORANDUM OPINION
  Before Chief Justice Valdez and Justices Rodriguez and Benavides
             Memorandum Opinion by Justice Benavides

       By two issues, appellant Donald Eugene Liscotti appeals his six convictions for

possession of child pornography, a third-degree felony. See TEX. PENAL CODE ANN. §

43.26 (West, Westlaw through 2017 1st C.S.). Liscotti argues the trial court committed

error by overruling his objection and motion for mistrial regarding testimony from a State’s

witness and by denying his motion to suppress. We affirm.
                                      I.     BACKGROUND

       Liscotti was charged with six counts of possession of child pornography. See id.

Following trial, Liscotti was found guilty by a jury. The trial court sentenced Liscotti to

ten years’ imprisonment in the Texas Department of Criminal Justice—Institutional

Division on counts one, two, and three and ten years’ imprisonment to run concurrently

and to ten years’ imprisonment on counts four, five, and six to run concurrently. Based

on the State’s request, the trial court ordered Liscotti’s ten-year sentence on counts one,

two, and three, run consecutive to his ten-year sentence on counts four, five, and six.

This appeal followed.

                                II.        WITNESS TESTIMONY

       By his first issue, Liscotti argues the trial court committed error by overruling his

objections to testimony by a State’s witness and denying his motion for mistrial

       A.     Relevant Background

       Prior to the start of trial, Liscotti filed a motion in limine to exclude testimony

regarding extraneous offenses. The trial court granted the motion in limine and told both

parties to approach if any extraneous offense testimony was offered. During the State’s

questioning of Kenneth Patterson, a computer forensic specialist with the Corpus Christi

Police Department Internet Crimes Against Children Unit, the issue of a search warrant

was raised. In response to the State’s question, Patterson stated:

             Okay. The search warrant I received on the 30th of December, two
       days after I received the case.

             As one of my procedures, I had a consent and it was primarily on an
       indecency with a child. Once I started the analysis and I found child
       pornography, I halted the analysis and contacted the case agent, Chief

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       McLester, and informed him I had found child pornography and was halting
       until I would get a search warrant for child pornography.

       After a few more questions, Liscotti asked to approach. At a bench conference,

Liscotti stated “He started off the reason for the investigation and he mentioned a motion–

or, exclusion, as far as indecency with a child. I want to object to that and move for a

mistrial at this time.” The trial court overruled the objection and told the State to continue

its examination.

       B.     Applicable Law

       For error to properly be preserved for appellate review, Liscotti’s complaint may

take three forms: (1) make a specific, timely objection; (2) request for a jury instruction

to disregard; and (3) request a motion for mistrial. See TEX. R. APP. P. 33.1(a); Young v.

State, 137 S.W.3d 65, 69 (Tex. Crim. App. 2004) (en banc). All three remedies serve to

prevent and correct errors and conserve judicial resources. See Young, 137 S.W.3d at

69. An objection serves as a preemptive measure because it informs the judge and

opposing counsel of the potential for error. Id. An instruction to disregard attempts to

cure any harm or prejudice resulting from events that have already occurred. Id. Where

the prejudice is curable, an instruction eliminates the need for a mistrial, thereby

conserving the resources associated with beginning the trial process anew. Id. A grant

of a motion for mistrial should be reserved for those cases in which an objection could not

have prevented, and an instruction to disregard could not cure, the prejudice stemming

from an event at trial. Id. The essential requirement is a timely, specific request that

the trial court refuses. Id.



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       In most instances, an objection will prevent the occurrence of the prejudicial event,

and the failure to make a timely, specific objection prevents appellate review. Id. at 70.

The request for an instruction that the jury disregard an objectionable occurrence is

essential only when such an introduction could have had the desired effect, which is to

enable the continuation of the trial by an impartial jury. Id. But if an instruction could

not have “cured” the error, the only suitable remedy is a mistrial, and a motion for a mistrial

is the only essential prerequisite to presenting the complaint on appeal. Id. “Mistrial is

the appropriate remedy when. . . the objectionable events are so emotionally

inflammatory that curative instructions are not likely to prevent the jury from being unfairly

prejudiced against the defendant.” Id. at 71.

       Accordingly, when a party’s first action is to move for mistrial, the scope of

appellate review is limited to whether the trial court erred in not taking the most serious

action of ending the trial; in other words, an event could not have been prevented by

timely objection or cured by instruction to the jury will not lead an appellate court to

reverse a judgment on appeal by the party who did not request these lesser remedies in

the trial court. Id. at 70. Limited as this scope of appellate review may be, such an

appellate review is available to such a party. Id.

       C.     Discussion

       Although Liscotti objected and then moved for a mistrial, his objection was neither

timely nor specific and preserved nothing for appellate review. See id. In evaluating

Liscotti’s action by first moving for mistrial, we look to the trial court’s action. The trial

court essentially denied Liscotti’s motion for mistrial by instructing the State to continue


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its questioning.      The complained-of statement was not so egregious that a timely

objection or instruction to disregard would not have cured any prejudice. See id. It was

apparent from previous testimony that Liscotti was the subject of an investigation into

some offense. Although Patterson testified that he received the computers regarding an

indecency with a child case, the trial court did not commit error by overruling Liscotti’s

motion for mistrial.    The events testified to were not “so emotionally inflammatory that

curative instructions” could not have remedied the violation of the motion in limine. Id.

at 71. We overrule Liscotti’s first issue.

                                III.   MOTION TO SUPPRESS

       By his second issue, Liscotti argued the trial court committed error by denying his

motion to suppress his statements based on lack of Miranda warnings for the charged

offense. See Miranda v. Arizona, 384 U.S. 436 (1966).

       A.     Relevant Background

       On appeal, Liscotti argues that his rights were violated because he was only given

his Miranda rights regarding a continuous sexual assault of a child investigation. See

Miranda, 384 U.S. at 436. Liscotti argues that he should have been given an additional

set of Miranda warnings when the law enforcement officers began questioning him

regarding allegations of child pornography. See id. However, Liscotti did not make this

argument to the trial court when it heard his motion to suppress.

       During the suppression hearing, the following occurred:

       Trial Court:    When your client was interrogated in regards to this, is there
                       any indication that—did he ever say, “I will talk to you about
                       that charge and I won’t talk to you about any other charge. If
                       you talk to me about the color of my cat or who I am married

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                     to, I won’t talk to you about it.”

                     Was there any indication, “I agree to speak to you about this
                     one issue only.”

      Liscotti:      I do not believe he indicated—I only viewed the edited version,
                     so I don’t believe there is any limitations by my client as far as
                     consent.

                     ....

      Trial Court:   But your challenge to [the statement’s] voluntariness, as I
                     understand it, based on one thing and one thing only, and
                     that’s, quote, I am going to call interview by ambush, where
                     he got told, “You are under arrest for this and I want to talk to
                     you about that.”

                     He agreed to talk about that. He didn’t say, “That’s all I will
                     ever talk to you about.”

                     And as a result of that, that’s the basis of your challenge to
                     the voluntariness of the statement. Because, if those are the
                     facts. . .I will sit here and watch the entire video. . .if those are
                     the facts, I will deny your Motion to Suppress, because it
                     doesn’t merit–it is not going to merit a decision to find it
                     involuntary. That is number one.

                     Number two, then I will bring the jury in here and they will hear
                     the entire video, because now you have challenged–once you
                     challenge the voluntariness of the statement and you ask me
                     to make a decision, the jury has to make the same decision.

                     ....

      Liscotti:      That is not my choice to present it to the jury, Your Honor.

                     What I would like to do, is proffer the consent form and the
                     interview in its entirety as a proffer of evidence into the record
                     and leave it up to the appellate court to decide whether I have
                     an appeal on the issue, Your Honor.

Chief Rick McLester of the Fulton Police Department testified. He stated he interviewed

Liscotti along with three members of federal law enforcement agencies. Chief McLester

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explained he gave Liscotti a form with his rights on it, Liscotti initialed and agreed to waive

his rights, and at no point during the interview did Liscotti refuse to answer questions or

withdraw his consent. Liscotti also testified during the suppression hearing. Liscotti

stated that he understood that he waived his right to remain silent and that he felt he had

to tell “his side of the story.” Following the testimony, Liscotti asked the trial court to

suppress the statement on the “grounds that the procedural safeguards weren’t sufficient

to secure the privilege against self-incrimination.”            Liscotti also claimed that “the

statements were acquired illegally based on–because they weren’t waived knowingly,

intelligently and voluntarily, Your Honor. They were more coerced.”

       The trial court clarified that now Liscotti was raising an article 38.22 argument as

well and denied Liscotti’s motion to suppress regarding the voluntariness of his statement.

Liscotti agreed that he does not want the issue of voluntariness submitted to the jury. 1

See TEX. CODE CRIM. PROC. ANN. art. 38.22 (West, Westlaw through 2017 C.S.).

       B.      Analysis

       1.      Standard of Review

       We review a trial court’s ruling on a motion to suppress under a bifurcated

standard. Gonzalez v. State, 501 S.W.3d 283, 285 (Tex. App.—Corpus Christi 2016, no

pet.). We give the trial court almost complete deference in its determination of historical

facts, especially if they are based on an assessment of credibility and demeanor. Id.

We afford the trial court the same deference on its rulings on the application of the law to

questions of fact and to mixed questions of law and fact if resolution of those questions


       1  During the interview, Liscotti discussed additional extraneous offenses. The State created a
redacted version of the interview to be played before the jury where those discussions were removed.
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depends on an evaluation of credibility and demeanor.            Id.   However, for mixed

questions of law and fact that do not fall within that category, a reviewing court conducts

a de novo review. Id.

       Where a trial judge does not enter findings of fact, like this case, a reviewing court

must “view the evidence in the light most favorable to the trial court’s ruling and assume

that the trial court made implicit findings of fact that support its ruling as long as those

findings are supported by the record.” Wiede v. State, 214 S.W.3d 17, 25 (Tex. Crim.

App. 2007).

       2.     Applicable Law and Discussion

       Article 38.22 of the code of criminal procedure lays out the procedure to be

employed when taking an oral statement. See TEX. CODE CRIM. PROC. ANN. art. 38.22, §

3. The requirements of article 38.22 state that oral statements are not admissible unless

they meet certain requirements. See id. Among those requirements is that the accused

be given his rights and he knowingly, intelligently, and voluntarily waives those rights.

See id. at § 3(a)(2).

       After reviewing the interrogation video, the trial court found that Liscotti was given

and understood his rights, and knowingly, intelligently, and voluntarily waived them.

Because we defer to the trial court’s determinations regarding credibility of the witnesses

presented at a motion to suppress hearing, we view the evidence in the light most

favorable to the ruling. See Wiede, 214 S.W.3d at 25.

       To determine if Miranda warnings are sufficient, we look to the totality of the

circumstances regarding the interrogation. See Herrera v. State, 241 S.W.3d 520, 526


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(Tex. Crim. App. 2007); see also Delao v. State, 235 S.W.3d 235, 239 (Tex. Crim. App.

2007) (finding that a determination of a statement’s voluntariness is based on the totality

of the circumstances). A statement may be deemed “involuntary” under three different

theories: (1) failure to comply with article 38.22, section 6—general voluntariness; (2)

failure to comply with the dictates of Miranda as codified and expanded in article 38.22,

sections 2 and 3 (the Texas confession statute); or (3) failure to comply with due process

because the statement was not freely given as a result of coercion, improper influences,

or incompetency. See Oursbourn v. State, 259 S.W.3d 159, 169 (Tex. Crim. App. 2008);

see also Holt v. State, No. 05-14-00914-CR, 2016 WL 3018793, at *7 (Tex. App.—Dallas

May 18, 2016, pet. ref’d.). We do not find that any of the theories apply. Liscotti was

aware of his rights, voluntarily waived those rights, and freely spoke to all the law

enforcement officers present.

       Although Liscotti also argues on appeal that he should have been given his

Miranda warnings each time a separate offense was discussed, he presents this Court

with no authority supporting that assertion. Instead, Liscotti only argues that article

38.22, section 3 was not followed and therefore, his statements regarding child

pornography should be suppressed. We hold the dictates of article 38.22, section 3 were

complied with by the law enforcement officers involved and the trial court properly found

Liscotti knowingly, intelligently, and voluntarily waived his rights. See TEX. CODE CRIM.

PROC. ANN. art. 38.22, § 3.

       We overrule Liscotti’s second issue.




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                                   IV.     CONCLUSION

       We affirm the judgment of the trial court.


                                                        GINA M. BENAVIDES,
                                                        Justice


Do not publish.
TEX. R. APP. P. 47.2(b).

Delivered and filed the
29th day of August, 2018.




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