Affirmed and Memorandum Opinion filed April 10, 2012.




                                         In The

                          Fourteenth Court of Appeals
                                 ___________________

                                  NO. 14-10-00967-CR
                                 ___________________

                  ISRAEL TONATI ZUNIGA-DUARTE, Appellant

                                               V.

                          THE STATE OF TEXAS, Appellee


                       On Appeal from the 176th District Court
                                Harris County, Texas
                           Trial Court Cause No. 1188009


                        MEMORANDUM OPINION

       Appellant, Israel Tonati Zuniga-Duarte, was convicted of murder. Punishment was
assessed at thirty years’ imprisonment. In two issues, he argues that the trial court erred
by overruling his motion to suppress and by failing to include an instruction on
voluntariness in the jury charge. We affirm.
                                    BACKGROUND
       In October 2008, officers from the Houston Police Department responded to a call
about a shooting at an apartment complex. Officers Rippey and Nguyen arrived at the
scene first, where they found Rene Cortez lying face-up in the middle of the living room
floor, dead from an apparent gunshot wound to the chest.

       Appellant, Rene’s roommate, was outside of the apartment with a group of people
when the officers arrived. The initial responding officers did not speak Spanish and were
unable to communicate with the potential witnesses. Officer Rivera was called to the
scene by dispatch because of his ability to speak Spanish. Appellant needed to be
interviewed because “nobody knew what was going on.” Officer Rivera then translated
appellant’s statement for Officer Rippey. Appellant told Officers Rivera and Rippey that
Rene had been out at a nearby club. On his way home he was shot. Rene managed to
make it to the apartment and pound on the door. When appellant answered, Rene fell into
his arms and died.

       Officer Rivera testified that while they were talking to appellant, he was not in
handcuffs, was not in a patrol car, and was able to walk around unrestrained. After
Officer Rivera translated appellant’s statement for Officer Rippey, they asked appellant
“to have a seat in the patrol car until homicide investigators made the scene to speak to
him.” They decided to place appellant in the patrol car because it was a secure place, and
so they would “know where he’s at, and somebody was there with him.” Officer Rivera
stated that it was customary to place witnesses in the back of a patrol car. He testified that
it is also customary to transport witnesses to the station for an interview in a patrol car.
On cross-examination, Officer Rivera said that although appellant seemed scared he did
not seem to be lying about what happened. According to Officer Rivera, appellant was
not placed under arrest at that time and was considered only a witness.


                                              2
       Some hours later, appellant was transported by police vehicle to the police station.
At the station, Officer Fred Mares took another statement from appellant. Officer Mares
stated that he was asked to obtain appellant’s statement because of his ability to speak
Spanish. Officer Mares classified his ability to speak Spanish as “very very basic.” As a
result his ability to communicate with appellant was limited. When he met appellant,
appellant was in an “interview room” that Officer Mares described as a seven-by-ten
windowless room, with a single door, a table and a couple of chairs. Officer Mares stated
that appellant was not handcuffed, had some food on the table, and did not appear
nervous. He introduced himself and obtained a statement from appellant. This statement
was recorded, transcribed into English, and did not contain any Miranda warnings.
Officer Mares testified that appellant neither asked to stop talking with him nor asked to
speak with an attorney. He also stated that it was customary to bring a witness into the
station to make a statement. According to Officer Mares, appellant was not under arrest at
that time and was still considered only a witness.

       In this statement, appellant said that he and Rene had worked earlier in the day and
had returned home to play videogames and drink beer. In the evening, appellant went to
his cousin’s house, and Rene went out. At approximately 4:00 a.m., appellant heard Rene
knocking on the door. When appellant opened the door, Rene said “[h]ey dude, they got
me” and then “hugged” appellant. Appellant thought that Rene was playing a practical
joke because he didn’t see any blood on him. Then Rene’s body went “very, very, very
loose.” Appellant laid Rene on the floor in the living room and ran upstairs to a friend’s
apartment. Appellant told the friend what happened, and the friend called the police.
Once appellant gave his statement, Officer Mares talked to Sergeant J.C. Padilla about
taking yet another statement from appellant. Officer Mares explained that he could not
address “certain questions” because of his limited command of the Spanish language.




                                             3
       While appellant was at the station giving his statement to Officer Mares, the police
investigation continued at the scene. In the bedroom of the apartment, police found a
spent, nine-millimeter bullet in the carpet. Prior to taking appellant’s statement, Sergeant
Padilla had received a photograph of this bullet. He brought this photograph into the
interview room with him. He stated that he became involved in the case because of his
ability to speak Spanish. Prior to speaking with appellant, Sergeant Padilla listened to the
statement Officer Mares recorded. He then went into the interview room and introduced
himself. Sergeant Padilla indicated that appellant was not handcuffed, was in regular
clothing, and had a bag from McDonald’s and a drink on the table. Sergeant Padilla did
not read appellant his Miranda warnings, did not consider him to be under arrest, and did
not consider him to be in custody. Appellant was free to leave if he wanted to terminate
the interview and never asked for an attorney. Before taking his statement, Sergeant
Padilla asked appellant if he needed to use the restroom. Appellant indicated that he did,
and Sergeant Padilla escorted him to and from the restroom.

       Upon returning from the restroom, the follow-up questioning began. The initial
statement given to Sergeant Padilla was not recorded because appellant was still
considered only a witness. Sergeant Padilla stated that it is not customary to record
witness statements. In this statement, appellant and Rene were in the bedroom playing
videogames when they heard a knock at the door. Rene got up and answered the door
while appellant stayed in the bedroom. Appellant heard what sounded like a gunshot and
got up to find Rene in the living room. Sergeant Padilla testified that “when [he] began
talking to [appellant], … [appellant] gave [him] a different story than [appellant] had
given Officer Mares.” Because he recognized the inconsistencies between appellant’s
statements, he decided to confront appellant with the photographs obtained from the
scene. Appellant began crying and told Sergeant Padilla that he would tell him what
really happened. At this point, Sergeant Padilla excused himself to confer with the other
officers assigned to the case.

                                             4
       After conferring with the other officers, Sergeant Padilla testified that “it was
decided that a second taped statement … would be taken.” Although Sergeant Padilla still
believed that appellant was only a “witness at this point,” out of an “abundance of
caution” he decided to read appellant Miranda warnings, which appellant waived.
Sergeant Padilla testified that during the recorded statement, appellant neither invoked his
right to remain silent nor requested an attorney.

       In this second recorded statement, appellant said that he and Rene had come home
after work, had a few beers, and played videogames. Sometime in the early morning
hours, Rene got out a bag of a white powdery substance and “put it through his nose.”
Around 4:00 a.m., Rene got up, walked over to appellant, put a gun to his head, and
demanded that he “suck his cock.” Appellant refused, and a struggle ensued. Appellant
wrestled the gun away from Rene and threw it on the ground, causing the gun to
discharge. Appellant then called a friend who lived nearby for help. Appellant stated that
this friend disposed of the gun.


   A. Motion to Suppress

       Subsequently, appellant was arrested and charged with the murder of Rene Cortez.
Prior to trial, appellant moved to suppress all statements made to the officers. In his
motion, appellant further alleged that he made the statements while under arrest or
substantially deprived of his freedom. Finally, appellant argued that the statements made
were the product of an illegal arrest and search and seizure.

       The State called Officers Rivera, Mares, and Sergeant Padilla to testify at the
suppression hearing. They testified to the above stated facts. After the State rested,
appellant testified only for the purposes of the suppression motion. He stated that
although he was not handcuffed when he was initially placed in the back of the patrol
vehicle, he was handcuffed prior to being transported to the station. Appellant did not feel
                                             5
that he was free to leave at any time once he was placed in the patrol vehicle and felt he
was in custody “at all times.” Appellant further stated that if he had appreciated his
ability to leave at anytime or to talk to a lawyer, he would have done so and would not
have talked to any of the officers. Finally, appellant testified that he did not understand
all of the rights read to him by Sergeant Padilla during the last interview.

       On cross-examination, appellant admitted that he lied to Officers Rivera and
Mares during his statements. Additionally, the State questioned appellant about any
possible threatening behavior or coercion on the part of the officers:

       [[O]ut of any of those officers, none of them told you, you have to talk to
       us, you have to give us a statement or you’re in trouble, right?

       [Appellant:] They did not say that, but they did say that I had to give a
       statement.

                                             ….

       [State:] And I want to make sure I’m clear. No one said, Mr. Duarte, if you
       don’t talk to us you're going to go to jail, we’re going to take your family
       away, anything remotely near that? Did anybody say anything like that to
       you?

       [Appellant:] No, but they did tell me that I needed to give a statement, that
       that was my right.

       [State:] Okay. So -- just so the judge knows, the only thing you thought was
       coercive in this case was things some of these officers said, you have to
       give a statement, fair enough?

       [Appellant:] Yes.

Appellant confirmed that Sergeant Padilla read appellant Miranda warnings, and that he
waived and understood all but two of those rights. In response to whether he understood
that he had the right to an attorney, appellant stated “[n]ot of everything, but I did answer
yes.” Appellant also testified that Sergeant Padilla never told him he had the right to
terminate the interview at any time.
                                              6
       After listening to further arguments from both the State and appellant, the trial
court made the following oral findings, transcribed into the record. First, appellant was
not in custody for the purposes of the statements made to Officers Rivera or Mares.
Second, appellant voluntarily went to the station to make a witness statement. Third, the
officers were credible when they testified that appellant was not in custody and that he
was free to leave. Fourth, appellant was “in custody when he mentioned the gun.”
Finally, the warned statement was voluntarily given. The trial court denied the motion to
suppress.


   B. Trial

       The trial testimony of Officers Rivera and Mares was essentially the same as their
suppression hearing testimony: appellant was not placed in handcuffs and was being
treated as a witness at the time of their interaction. Officer Rivera testified about
appellant’s statement without objection. The trial court admitted appellant’s statement to
Officer Mares over objection.

       Sergeant Padilla testified at trial to the same essential facts as he did at the
suppression hearing, with a few additions. Sergeant Padilla stated that interviewing both
suspects and witnesses in an interview room was common practice. After introducing
himself, Sergeant Padilla asked if appellant wanted to speak with him; appellant agreed.
Sergeant Padilla testified that he escorted appellant to the restroom because “[i]t’s policy
of the Homicide Division that anyone that is not assigned there that they are escorted
anywhere on that floor.” Sergeant Padilla indicated this policy was in place to protect
“sensitive information.” Sergeant Padilla testified that appellant never expressed a desire
to leave during their interactions. He stated that he did not record the first statement given
by appellant because he was “just there to do a supplemental interview ….” The trial
court admitted the first statement given to Sergeant Padilla over objection. When the
State sought to admit the recorded statement taken by Sergeant Padilla, appellant stated
                                           7
that he had the “[s]ame objection as before that I -- re-urge the motion that we had before
as to involuntariness.” The trial court noted that the “objection is still overruled,” and
admitted the statement.


                                           ANALYSIS

       Appellant presents two issues on appeal: the trial court erred in overruling his
motion to suppress the statements made to police officers; and the trial court erred in
failing to include an instruction regarding voluntariness of his statements in the jury
charge.


 A. Motion to Suppress

       Appellant argues that the trial court erred in denying his motion to suppress the
statements he made to Officer Mares and Sergeant Padilla.1 He contends that because the
statements were made while he was in custody, he should have been given Miranda
warnings, as well as the statutory warnings contained in article 38.22 of the Texas Code
of Criminal Procedure. See Tex. Code Crim. Proc. Ann. art. 38.22 (West 2005); Miranda
v. Arizona, 384 U.S. 436, 444–45 (1966). He asserts that because he did not receive these
warnings until his last recorded statement, all of his statements were inadmissible
evidence and should have been suppressed. See Tex. Code Crim. Proc. Ann. art 38.22;
Miranda, 384 U.S. at 444–45; see also Missouri v. Seibert, 542 U.S. 600, 609–11 (2004)
(plurality op.) (discussing admissibility of statements made when “mid-stream” Miranda
warnings are given).




       1
          Appellant argued in the original suppression motion that all statements he made, whether
recorded or unrecorded, should be suppressed. On appeal, he does not argue that the statement given at
the scene to Officer Rivera should have been suppressed.
                                                  8
       In reviewing a trial court’s ruling on a motion to suppress, appellate courts must
view all of the evidence in the light most favorable to the ruling. State v. Garcia-Cantu,
253 S.W.3d 236, 241 (Tex. Crim. App. 2008). At a suppression hearing, the trial judge is
the sole fact-finder. St. George v. State, 237 S.W.3d 720, 725 (Tex. Crim. App. 2007).
We give almost total deference to the trial court’s determination of historical facts when
supported by the record, particularly if the findings turn on witness credibility and
demeanor. See State v. Ross, 32 S.W.3d 853, 855–56 (Tex. Crim. App. 2000) (en banc).
The same deference is accorded to determinations of mixed questions of law and fact if
their resolution depends upon witness credibility and demeanor. Id. at 856. Issues that
present purely legal questions are considered under a de novo standard. Id. We will
sustain the trial court’s ruling if it is reasonably supported by the record and is correct on
any theory of law applicable to the case. Villarreal v. State, 935 S.W.2d 134, 138 (Tex.
Crim. App. 1996) (en banc).

       Miranda warnings are given to “safeguard an uncounseled individual’s
constitutional privilege against self-incrimination during custodial interrogation.”
Herrera v. State, 241 S.W.3d 520, 525 (Tex. Crim. App. 2007). Additionally, article
38.22 of the Texas Code of Criminal Procedure governs the admissibility of statements
made by an accused during custodial interrogation. Tex. Code Crim. Proc. Ann. art.
38.22; see also Herrera, 241 S.W.3d at 526. As with Miranda warnings, article 38.22
warnings are required only when the interrogation is custodial. Tex. Code Crim. Proc.
Ann. art. 38.22, §§ 3(a), 5; Herrera, 241 S.W.3d at 526.

       “A person is in ‘custody’ only if, under the circumstances, a reasonable person
would believe that his freedom of movement was restrained to the degree associated with
a formal arrest.” Dowthitt v. State, 931 S.W.2d 244, 254 (Tex. Crim. App. 1996) (citing
Stansbury v. California, 511 U.S. 318, 322, 325 (1994)). The “reasonable person”
standard presupposes an innocent interrogee. Id.

                                              9
       Our “custody” inquiry includes an examination of all objective circumstances
surrounding the questioning. Herrera, 241 S.W.3d at 525. The subjective belief of law
enforcement officials about whether a person is a suspect does not factor into our
“custody” determination unless an official’s subjective belief was somehow conveyed to
the person questioned. Id. at 525–26. Stationhouse questioning does not, in and of itself,
constitute custody. Dowthitt, 931 S.W.2d at 255. A person is not in custody if he
“voluntarily accompanies police officers, who are then only in the process of
investigating a crime, to a certain location, and he knows or should know that the police
officers suspect he may have committed or may be implicated in committing the crime.”
Turner v. State, 252 S.W.3d 571, 579 (Tex. App.—Houston [14th Dist.] 2008, pet. ref’d).
“Once the circumstances show the person is acting upon the invitation, urging or request
of police officers, and not the result of force, coercion or threat, the act is voluntary and
the person is not then in custody.” Id at 580. However, the mere fact that an interrogation
begins as noncustodial does not prevent custody from arising later; police conduct during
the encounter may cause a consensual inquiry to escalate to custodial interrogation.
Dowthitt, 931 S.W.2d at 255.

       Four general situations may constitute custody for purposes of Miranda and article
38.22: (1) the suspect is physically deprived of his freedom of action in any significant
way; (2) a law enforcement officer tells the suspect he is not free to leave; (3) law
enforcement officers create a situation that would lead a reasonable person to believe that
his freedom of movement has been significantly restricted; and (4) there is probable
cause to arrest the suspect, and law enforcement officers do not tell the suspect he is free
to leave. Gardner v. State, 306 S.W.3d 274, 294 (Tex. Crim. App. 2009); Dowthitt, 931
S.W.2d at 254. The fourth category applies only when the officer’s knowledge of
probable cause is communicated to the suspect or by the suspect to the officer; even then,
custody is established only “if the manifestation of probable cause, combined with other


                                             10
circumstances, would lead a reasonable person to believe that he is under restraint to the
degree associated with an arrest.” Gardner, 306 S.W.3d at 295 n.48.


       1. Statement to Officer Mares and First Unrecorded Statement to Sergeant
          Padilla

       Appellant argues that his “detention in the back of a patrol car …, transport by
police to homicide, persistent and continued questioning by homicide officers in a small
rectangular windowless room with a single door, with access to a bathroom only while
escorted by an armed police officer, would cause a reasonable person in his situation to
believe that his freedom of movement was restricted in a way consistent with formal
arrest.” Thus, he argues, his statements were made while he was in custody and were the
product of custodial interrogation.

       The trial court found that appellant “voluntarily accompanied [the] officers to the
station to make a witness statement,” and that the “officers were credible when they
testified that [appellant] was not in custody at that time and was free to leave.” We give
deference to the trial court’s fact finding that the officers’ testimony was credible and that
appellant voluntarily went to the station to make a statement. Herrera, 241 S.W.3d at
526–27; Ross, 32 S.W.3d at 855. Considering the trial testimony on this issue, and giving
deference to the trial court’s findings at the suppression hearing, the objective facts
indicate that appellant was not in custody prior to or during the statement made to Officer
Mares or the first unrecorded statement made to Sergeant Padilla. See Gardner, 306
S.W.3d at 294; Dowthitt, 931 S.W.2d at 254.

       Prior to and during these statements, none of the four general custody situations
occurred. Appellant was not physically deprived of his freedom of action in any
significant way. He was not handcuffed and went to the station voluntarily. Prior to the
unrecorded statement to Sergeant Padilla, appellant was escorted to and from the
restroom. This fact indicates a restriction of appellant’s freedom of movement, but alone
                                             11
is not necessarily enough to show custody. See Dowthitt, 931 S.W.2d at 256 (“The fact
that appellant was accompanied during restroom breaks, although given an innocuous
explanation, is also to be considered.”). While he was escorted to the restroom, there was
no evidence that officers told appellant he could not leave. Even assuming that the
officers never told appellant he was free to leave at any time, they all testified that they
would have allowed appellant to leave at any time if appellant had asked. The trial court
specifically found the officers credible in that regard. A reasonable person would not
believe that his freedom of movement was significantly restricted in this situation, where
he: voluntarily accompanied officers to the station; was given food; was neither
handcuffed nor told he was under arrest; did not ask to leave; and was not threatened or
coerced.

       The evidence elicited did not indicate that appellant’s freedom of movement was
deprived in a significant way, or that the officers created a situation in which a reasonable
person would believe that his freedom of movement was significantly restricted. Thus,
the statement made to Officer Mares and the first unrecorded statement to Sergeant
Padilla was not the product of custodial interrogation and, therefore, not subject to
Miranda or article 38.22. See Gardner, 306 S.W.3d at 294; Dowthitt, 931 S.W.2d at 254.
The trial court did not err in denying appellant’s suppression motion with regard to these
statements. Herrera, 241 S.W.3d at 526.


       2. Recorded Statement to Sergeant Padilla

       The fourth general custody situation occurred when Sergeant Padilla confronted
appellant with the photographs from the crime scene. At that point, appellant told
Sergeant Padilla that he “lied about what really happened,” and Sergeant Padilla
terminated the interview. This termination of the interview by Padilla amounted to a
communication of probable cause that would lead a reasonable person to believe that he
was under restraint to the degree associated with an arrest. See Gardner, 306 S.W.3d at
                                           12
295 n.48. However, prior to taking the recorded statement, Sergeant Padilla read
appellant Miranda and article 38.22 warnings, which appellant waived.

      Appellant contends that the final recorded statement given to Sergeant Padilla
must be suppressed because, although he received Miranda warnings before the
statement was made, the statement was made as a result of a prohibited “question-first”
interrogation technique. See Seibert, 542 U.S. at 622 (Kennedy, J., concurring); Carter v.
State, 309 S.W.3d 31, 35–36 (Tex. Crim. App. 2010). A “question-first” interrogation
technique consists of officers interrogating a suspect without providing Miranda
warnings and obtaining a confession; then, after the inculpatory statements are made,
officers provide Miranda warnings and obtain a waiver of the warnings. See Seibert. 542
U.S. at 604–05. Officers then have the suspect repeat the inculpatory statements to cure
the lack of Miranda warnings. See id at 605.

      In a plurality opinion, the Supreme Court held that under these circumstances, this
type of interrogation technique circumvented the objective of Miranda by rendering any
warnings given ineffective. Id. at 611–12; Martinez v. State, 272 S.W.3d 615, 619–20
(Tex. Crim. App. 2008). The Supreme Court found that the purpose of this interrogation
technique was to obtain a confession the suspect may not have made if he had understood
his rights at the outset. Seibert, 542 U.S. at 611. In Carter, the Court of Criminal
Appeals expressly adopted Justice Kennedy’s concurrence in Seibert. Carter, 309 S.W.3d
at 37. Justice Kennedy’s concurrence determined that where a “question-first”
interrogation technique is used in a deliberate, calculated way to undermine Miranda
warnings, absent “curative measures,” the post-warning statements must be excluded.
Seibert, 542 U.S. at 622 (Kennedy, J., concurring). However, to undermine Miranda in a
calculated manner by conducting a “question-first” interrogation technique, Miranda
must first apply to the earlier unwarned statements. See Ervin v. State, 333 S.W.3d 187,
213 (Tex. App.—Houston [1st Dist.] 2010, pet. ref’d) (holding that because the appellant

                                           13
was not in custody for the purpose of the first two statements, the third statement was not
the product of a “question-first” interrogation technique employed deliberately to
circumvent Miranda, and was admissible based on the defendant’s waiver of her
Miranda rights); cf. Seibert, 542 U.S. at 604–05 (defendant in custody when unwarned,
inculpatory statement was made); Carter, 309 S.W.3d at 33 (same); Martinez, 272
S.W.3d at 618 (same).

       In this case, we have already determined that Miranda did not apply to the earlier
unwarned statements because appellant was not in custody when he made them. See Tex.
Code Crim. Proc. Ann. art. 38.22, §§ 3(a), 5; Herrera, 241 S.W.3d at 526. Custody did
not arise until Sergeant Padilla confronted appellant with the photograph and appellant
said he would tell Sergeant Padilla what really happened. At that moment, the
noncustodial questioning escalated to custodial interrogation. See Dowthitt, 931 S.W.2d
at 255. To be admissible, any statement appellant made from that point was subject to
Miranda. See Tex. Code Crim. Proc. Ann. art. 38.22; Herrera, 241 S.W.3d at 526. Before
appellant’s next statement, he was given Miranda warnings, which he waived.

       Because Miranda warnings were not required prior to the other noncustodial
statements, a “question-first” interview tactic could not have been employed deliberately
to circumvent the protections of Miranda. See Seibert, 542 U.S. at 622 (Kennedy, J.,
concurring); Carter, 309 S.W.3d at 37. The trial court did not err in denying appellant’s
suppression motion with regard to this statement. See Carter, 309 S.W.3d at 37. Having
concluded that the trial court did not err in denying appellant’s suppression motion, we
overrule appellant’s first issue.


 B. Jury Charge

       In his second issue, appellant contends he was egregiously harmed by the trial
court’s failure to include an article 38.22, section 6 instruction within the jury charge
                                            14
about the voluntariness of the statements that he made.2 A trial judge has the absolute
duty to prepare a jury charge that accurately sets out the law applicable to the case. Tex.
Code Crim. Proc. Ann. art. 36.14 (West 2007); Oursbourn v. State, 259 S.W.3d 159, 179
(Tex. Crim. App. 2008). When a statue requires an instruction under certain
circumstances, that instruction is the “law applicable to the case.” Oursbourn, 259
S.W.3d at 180. The trial court must give the instruction for the law applicable to the case
regardless of whether it has been specifically requested. Id. at 179–80.

       Article 38.22, section 6 is the “law applicable” to any case in which a question is
raised and litigated as to the “general” voluntariness of a statement of an accused. Id. at
180. This is a statutorily mandated instruction and the trial court must include it in the
jury instruction when the voluntariness of a defendant’s statement is at issue. Id. A
question of voluntariness is raised when a party notifies the trial judge or the trial judge
raises the issue on her own. Id. at 175. Under article 38.22, section 6, if a question is
raised, the trial judge is then required to (1) make an independent determination outside
of the jury’s presence that the statement was made under “voluntary” conditions, and
(2) instruct the jurors that they shall not consider any statement for any purpose unless
they believe beyond a reasonable doubt that the statement was made voluntarily. Tex.
Code Crim. Proc. Ann. art. 38.22, § 6; Oursbourn, 259 S.W.3d at 180–81. The issue of
voluntariness should be submitted to the jury under article 38.22, section 6 if, based on
the evidence presented at trial, a reasonable jury could find that the statement was not
voluntary. Vasquez v. State, 225 S.W.3d 541, 545 (Tex. Crim. App. 2007).

       Appellant points to his motion to suppress and the hearing on the motion, in which
he claims he raised a question of “voluntariness.” Appellant generally alleged in his
motion to suppress that the statements taken by the officers violated both Articles 38.22
and 38.23 of the Texas Code of Criminal Procedure. However, neither at the suppression

       2
           Appellant acquiesces to the fact that error was not properly preserved at trial.
                                                      15
hearing, nor at the charge conference did appellant cite article 38.22, section 6 or address
the language of the statute as the basis for his voluntariness request. Cf. id. at 543
(holding although appellant did not cite specific statute as basis for this request, he
paraphrased the statutory language provided in article 38.22, section 6, and therefore,
section 6 was litigated to the trial court). Appellant did not urge any objection based on
article 38.22, section 6 as grounds for a jury instruction.

        Appellant does not delineate exactly how his statements were “involuntary,”
instead he merely states that they were. He further summarily states that this issue was
actually litigated to the jury. Notably, appellant did not testify at trial or offer testimony
from any witnesses, nor did he offer argument in support of this theory. 3 Presumably,
appellant relies on the cross-examination of the officers that took his statements to raise
the question of voluntariness. But during cross-examination, appellant never directly
asked any of the officers whether they threatened, coerced or in any other way employed
“police overreaching” to obtain appellant’s statements.4

        Appellant objected to the admission of the final recorded statement on the grounds
of “involuntariness.” However, appellant made no further argument, to the court or to the
jury, as to how or why the evidence showed the statement was involuntary. This is not
actually litigating the question of voluntariness before the jury. See Oursbourn, 259
S.W.3d at 175 (“The language ‘where a question is raised’ [in Article 38.22, § 6]

        3
          Further, in the suppression hearing, appellant testified that the officers did not threaten or coerce
him in any manner. Additionally, in the suppression hearing appellant did not argue that his statements
were involuntary. Instead he argued that he was in custody at the time he made each statement and
therefore should have been given Miranda warnings.
        4
          See Liberato v. State, 14-09-00755-CR, 2010 WL 3636155, *4 (Tex. App.—Houston [14th
Dist.] Sept. 21, 2010, pet. ref’d) (mem. op., not designated for publication) (holding no question of
voluntariness raised where on cross-examination, witness slightly hesitated when appellant’s counsel
asked the question about coercion, and appellant’s counsel thought the jury may have picked up on that);
Aldaba v. State, No. 14-08-00417-CR, 2009 WL 1057685, at *3 (Tex. App.— Houston [14th Dist.] Apr.
16, 2009, pet. ref’d)(mem. op.) (holding nothing in the cross-examination suggested that appellant’s
statements to the homicide detectives were made involuntarily as contemplated by section 6).
                                                     16
contrasts with the language found in Article 38.22, § 7 and Article 38.23 which speaks of
the evidence raising an issue.”); see also Randall v. State, 14-06-00468-CR, 2008 WL
5262738 (Tex. App.—Houston [14th Dist.] Dec. 18, 2008, no pet.) (mem. op., not
designated for publication) (concluding defendant did not raise a question regarding
general voluntariness of his statement under section 6 because defense instead focused on
inadmissibility of the statements pursuant to Miranda and Article 38.22, section 3,
arguing that the statements resulted from custodial interrogation).

         Finally, appellant elicited neither evidence nor testimony regarding youth,
intoxication, illness or medication, mental incapacitation, or any other possible
disabilities that may have prevented him from voluntarily giving a statement. See
Oursbourn, 259 S.W.3d at 172–73. There was no evidence that appellant’s statements
were made involuntarily as contemplated by Article 38.22, section 6. See Aldaba, 2009
WL 1057685, at *3. Because the issue of voluntariness was never raised before the jury,
an Article 38.22 section 6 instruction was not “the law applicable to the case.” Therefore,
the trial court did not reversibly err by failing to include such an instruction in the charge
to the jury. Appellant’s second issue is overruled.


                                      CONCLUSION

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



                                           /s/    Adele Hedges
                                                  Chief Justice



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