                           COURT OF APPEALS
                            SECOND DISTRICT OF TEXAS
                                 FORT WORTH


                                 NOS. 2-07-356-CR
                                      2-07-357-CR


TRENTON SPARKS                                                      APPELLANT

                                              V.

THE STATE OF TEXAS                                                       STATE

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            FROM THE 367TH DISTRICT COURT OF DENTON COUNTY

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                          MEMORANDUM OPINION 1

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      Trenton Sparks appeals his convictions on two counts of robbery. In

three points, he argues that the trial court erred by admitting into evidence his

videotaped confession to police, by prematurely sending the jury an Allen

charge, and by failing to advise the jury that they could request that the court

reporter read specific, disputed parts of the testimony to them. We affirm.


      1
          … See T EX. R. A PP. P. 47.4.
                                  Background

      The two robberies involved in these appeals occurred on May 6, 2006,

at the Lewisville Marriott hotel and June 23, 2006, at the RaceTrac

convenience store in The Colony. Concerning the first robbery, the record

shows that two men wearing dark clothes and bandanas over their faces

entered the Marriott a little after midnight, brandished what appeared to be a

gun at a hotel guest, and demanded money from the desk clerk. The clerk gave

them about $417 in cash, which had been divided and clipped together by

denomination.    The robbers fled, and hotel personnel called 911.      Police

observed four men driving a van without tail lamps about one-quarter mile from

the hotel and initiated a traffic stop.     Appellant was one of the rear-seat

passengers. The officer who initiated the stop observed what appeared to be

a semiautomatic handgun, but turned out to be a BB gun, on the floorboards

between Appellant’s feet. A subsequent search of the van discovered material

consistent with the head coverings worn by the robbers and $379 in cash,

divided and clipped together by denomination.

      Appellant gave videotaped and written statements to police later that

morning. Those statements form the basis of Appellant’s first point, and we

will discuss them in more detail later in this opinion.




                                        2
      In the second robbery, a man rushed into the RaceTrac store at around

4:00 a.m., brandished what appeared to be a gun, and demanded that the clerk

give him all of the cash in the registers. The robber wore a gray sweatshirt,

thick wool gloves, and black shorts and had a silk head wrap over his face. The

clerk gave him the cash, and he fled. The clerk called 911, and ten to twenty

minutes later, a police officer observed Appellant, who matched the clerk’s

description of the robber, driving a half mile from the store. The officer stopped

Appellant but later released him when the store clerk could not positively

identify him.

      Later that day, a search of the area around the store discovered a gray

sweatshirt balled up next to a fence, and wrapped in the shirt were gloves and

a BB pistol. Police also recovered a head wrap or “do-rag.” Police submitted

DNA samples obtained from the shirt, do-rag, and gloves for testing. Appellant

could not be excluded as the contributor of the DNA from the gloves, and the

major DNA profile from the shirt and do-rag samples matched Appellant’s DNA

profile.

      The State charged Appellant with both robberies. The cases were tried

together, and a jury found him guilty of both offenses.          When the jury

deadlocked in punishment deliberations, the trial court declared a mistrial on

punishment. Appellant later waived his right to have a jury assess punishment,

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and under an agreement between Appellant and the State, the trial court

sentenced him to two years’ confinement in each case. Appellant appealed the

judgments in both cases.

                Admission of Appellant’s Videotape Confession

      In his first point, Appellant argues that the trial court erred by denying his

motion to suppress the videotape of his statement to police concerning the first

robbery because he did not clearly waive his rights.

1.    Standard of review

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

a bifurcated standard of review. Amador v. State, 221 S.W.3d 666, 673 (Tex.

Crim. App. 2007); Guzman v. State, 955 S.W .2d 85, 89 (Tex. Crim. App.

1997). In reviewing the trial court’s decision, we do not engage in our own

factual review.   Romero v. State, 800 S.W.2d 539, 543 (Tex. Crim. App.

1990); Best v. State, 118 S.W.3d 857, 861 (Tex. App.—Fort Worth 2003, no

pet.). The trial judge is the sole trier of fact and judge of the credibility of the

witnesses and the weight to be given their testimony. Wiede v. State, 214

S.W.3d 17, 24–25 (Tex. Crim. App. 2007); State v. Ross, 32 S.W.3d 853,

855 (Tex. Crim. App. 2000), modified on other grounds by State v. Cullen, 195

S.W.3d 696 (Tex. Crim. App. 2006).             Therefore, we give almost total

deference to the trial court’s rulings on (1) questions of historical fact, even if

                                         4
the trial court’s determination of those facts was not based on an evaluation of

credibility and demeanor, and (2) application-of-law-to-fact questions that turn

on an evaluation of credibility and demeanor. Amador, 221 S.W.3d at 673;

Montanez v. State, 195 S.W.3d 101, 108–09 (Tex. Crim. App. 2006);

Johnson v. State, 68 S.W.3d 644, 652–53 (Tex. Crim. App. 2002). But when

application-of-law-to-fact questions do not turn on the credibility and demeanor

of the witnesses, we review the trial court’s rulings on those questions de

novo. Amador, 221 S.W.3d at 673; Estrada v. State, 154 S.W.3d 604, 607

(Tex. Crim. App. 2005); Johnson, 68 S.W.3d at 652–53.

      Stated another way, when reviewing the trial court’s ruling on a motion

to suppress, we must view the evidence in the light most favorable to the trial

court’s ruling. Wiede, 214 S.W.3d at 24; State v. Kelly, 204 S.W.3d 808, 818

(Tex. Crim. App. 2006). When the trial court makes explicit fact findings, we

determine whether the evidence, when viewed in the light most favorable to the

trial court’s ruling, supports those fact findings. Kelly, 204 S.W.3d at 818–19.

We then review the trial court’s legal ruling de novo unless its explicit fact

findings that are supported by the record are also dispositive of the legal ruling.

Id. at 819.




                                        5
2.    Relevant facts

      On the morning of the Marriott robbery, Lewisville Police Sergeant Darryl

Humphrey met with Appellant in an interview room at the police station. The

entire meeting was videotaped, and we have reviewed the video. Sergeant

Humphrey read Appellant his Miranda 2 warnings, and Appellant indicated that

he understood his rights by nodding.       Sergeant Humphrey then informed

Appellant that in order for the interview to continue, Appellant had to waive his

rights. He then asked Appellant if he waived his rights. In response, Appellant

asked what they were going to talk about. Sergeant Humphrey answered,

“Last night.” Appellant said that he had already told another officer that he had

nothing to do with it. Officer Humphrey asked Appellant, “Okay, so can we

talk about it? So, in other words, I have to–you have to waive those rights

before we’re supposed to talk about it.”        Appellant replied, “All right.”

Appellant eventually admitted that he was involved in the robbery but said that

he had been unsure that the robbery would actually take place, that he had not

thought his accomplice would go through with the robbery, and that anyone

could tell that the gun was fake. After the interview, Appellant made a written




… 2
  See Miranda v. Arizona, 384 U.S. 436, 441–42, 86 S. Ct. 1602, 1611
(1966).


                                       6
statement. The written statement contains a recitation of Appellant’s rights

and an explicit waiver of those rights, which was signed by Appellant.

      At the hearing on Appellant’s motion to suppress the tape, the trial court

reviewed the video. Appellant stipulated that he had prior experience with the

criminal justice system or juvenile justice system. The trial court denied his

motion to suppress, stating on the record, “I believe it is a waiver.” At trial, the

trial court admitted into evidence both the interview video and Appellant’s

written statement, and the jury viewed the video.

3.    Analysis

      The relevant portions of article 38.22 of the Texas Code of Criminal

Procedure provide that no oral statement of an accused made as a result of a

custodial interrogation shall be admissible against the accused in a criminal

proceeding, unless prior to the statement but during the recording, the accused

is given the required statutory warnings, and the accused knowingly,

intelligently, and voluntarily waives any rights set out in the warning. T EX.

C ODE C RIM. P ROC. A NN. art. 38.22, § 2(a) (Vernon 2005).

      A waiver of rights may be inferred from the actions and words of the

person interrogated.      Hargrove v. State, 162 S.W.3d 313, 318 (Tex.

App.—Fort Worth 2005, pet. ref’d); State v. Oliver, 29 S.W.3d 190, 191–92

(Tex. App.—San Antonio 2000, pet. ref’d). The Court of Criminal Appeals has

                                         7
stated, “We do not . . . interpret the oral confession statute to require an

express verbal statement from an accused that he waives his rights prior to

giving the statement. In reaching the voluntariness of a confession, this Court

looks at the totality of the circumstances.” Barefield v. State, 784 S.W.2d 38,

40–41 (Tex. Crim. App. 1989), cert. denied, 497 U.S. 1011 (1990), overruled

on other grounds by Zimmerman v. State, 860 S.W.2d 89, 94 (Tex. Crim. App.

1993). Furthermore, in Oliver, the San Antonio Court of Appeals held that the

“Court of Criminal Appeals has approved the inference of a waiver from the

totality of the circumstances in the situation where an oral confession contains

a recitation of the article 38.22 warnings and the defendant indicates he

understands his rights and proceeds without hesitation to participate in the

interview.” Oliver, 29 S.W.3d at 193.

      In this case, the video shows that Sergeant Humphrey read Appellant his

rights, and Appellant, who admits that he had prior experience in the criminal

justice system, indicated that he understood his rights.       When Sergeant

Humphrey asked, “[C]an we talk about it? . . . [Y]ou have to waive those rights

before we’re supposed to talk about it,” Appellant answered, “All right.”

Appellant argues that he could have intended by his answer merely to indicate

that he understood what the sergeant was saying and not to waive his rights.




                                       8
This possibility is undermined by the fact that Appellant next proceeded without

hesitation to participate in the interview. See id.

      Viewing the totality of the circumstances in the light most favorable to

the trial court’s ruling and deferring to the trial court’s determinations of

historical fact, we hold that the trial court did not err by denying Appellant’s

motion to suppress, and we overrule his first point.

                                 Allen Charge 3

      In his second point, Appellant argues that the trial court erred by sending

the jury a premature Allen charge and denying Appellant’s motion for mistrial

when the jury reported that it could not reach a verdict concerning the second

of the two robberies. After the jury had deliberated for less than three hours,

it sent the trial court a note stating that it had reached a verdict in the first

robbery but not the second. The trial court allowed the jury to break for lunch,

after which they deliberated for less than two more hours before sending a note

saying that they were deadlocked on the second robbery. Appellant moved for




      3
       … See Allen v. United States, 164 U.S. 492, 501, 17 S. Ct. 154, 157
(1896). An Allen charge is given to instruct a deadlocked jury to continue
deliberating. See id. The court of criminal appeals has approved the use of
such a charge under these circumstances. Howard v. State, 941 S.W.2d 102,
123 (Tex. Crim. App. 1996), cert. denied, 535 U.S. 1065 (2002).

                                       9
a mistrial based on the length of time the jury had been deliberating. The trial

court denied his motion and read the jury an Allen charge instead.

      The State argues that Appellant waived his complaint about the Allen

charge by expressly stating that he had no objection to it. We agree. To

preserve a complaint for our review, a party must have presented to the trial

court a timely request, objection, or motion that states the specific grounds for

the desired ruling if they are not apparent from the context of the request,

objection, or motion. T EX. R. A PP. P. 33.1(a)(1); Mosley v. State, 983 S.W.2d

249, 265 (Tex. Crim. App. 1998) (op. on reh’g), cert. denied, 526 U.S. 1070

(1999). Further, the trial court must have ruled on the request, objection, or

motion, either expressly or implicitly, or the complaining party must have

objected to the trial court’s refusal to rule. T EX. R. A PP. P. 33.1(a)(2); Mendez

v. State, 138 S.W.3d 334, 341 (Tex. Crim. App. 2004). Appellant stated that

he had no objection to the Allen charge. We therefore hold that he failed to

preserve error for our review.

      Even if Appellant had preserved error, we would overrule his point. An

Allen charge will constitute reversible error only if, on its face, it is so improper

as to render jury misconduct likely or jury misconduct is demonstrated to have

occurred in fact. Calicult v. State, 503 S.W.2d 574, 576 n.2 (Tex. Crim. App.

1974). To prevail on a complaint that an Allen charge is coercive, an accused

                                         10
must show that jury coercion or misconduct likely occurred or occurred in fact.

Love v. State, 909 S.W.2d 930, 936 (Tex. App.—El Paso 1995, pet. ref’d).

An Allen charge is unduly coercive and therefore improper only if it pressures

jurors into reaching a particular verdict or improperly conveys the court’s

opinion of the case. Arrevalo v. State, 489 S.W.2d 569, 571 (Tex. Crim. App.

1973). The primary inquiry is the coercive effect of such a charge on juror

deliberation in its context and under all circumstances. Howard, 941 S.W.2d

at 123. Here, Appellant does not argue, and the record does not show, that

the trial court improperly pressured the jury to reach a particular verdict or

improperly conveyed its opinion of the case. We therefore overrule this part of

his second point.

      We turn now to Appellant’s motion for mistrial. The decision of whether

to require a jury to continue deliberations is within the trial court’s discretion.

See T EX. C ODE C RIM. P ROC. A NN. art. 36.31 (Vernon 2006); Guidry v. State, 9

S.W.3d 133, 155 (Tex. Crim. App. 1999), cert. denied, 531 U.S. 837 (2000).

The trial court is not obligated to declare a mistrial at the first sign of jury

impasse.   Howard, 941 S.W.2d at 121. Rather, the court may do so if it

determines, in its discretion, that the jury has been kept together for such a

time as to render it altogether improbable that it can agree. Id. We review a




                                        11
trial court’s decision to require a jury to continue deliberations for an abuse of

discretion. Jackson v. State, 17 S.W.3d 664, 676 (Tex. Crim. App. 2000).

      In this case, the jury heard approximately twelve hours of testimony. The

trial involved two separate crimes. The jury reported that it was deadlocked on

one of the charges after four and a half hours of deliberation. Considering the

amount of evidence, the complexity of the case, and the duration of

deliberations, we cannot say that the trial court abused its discretion by

requiring the jury to deliberate further.      We overrule the remainder of

Appellant’s second point.

                            Improper Jury Instruction

      In his third point, Appellant argues that the trial court erred by

confounding the jury with an improper instruction when the jury sent out a note

asking at what time of day police had stopped Appellant in connection with the

second robbery. During deliberations, the jury sent out a note asking, “If the

police reports were entered into evidence, may we see copies of the reports

from The Colony officers?     If not, what was the time Trenton Sparks was

initially stopped on June 23, 2006?”        The trial court replied to the first

question, “You have all of the evidence that was admitted,” and to the second,

“I cannot answer that question. You must rely on your recollections of the

evidence.” Appellant requested an instruction telling the jury that the court

                                       12
reporter could read a portion of the testimony to them if they identified a

specific part of the testimony about which they were in dispute. The trial court

denied his request, stating, “I think it’s premature to go there yet.”

      Article 36.28 provides that “if the jury disagree as to the statement of

any witness they may, upon applying to the court, have read to them from the

court reporter’s notes that part of such witness testimony or the particular point

in dispute, and no other . . . .” T EX. C ODE C RIM. P ROC. A NN. art. 36.28 (Vernon

2006).   This statute seeks to balance our concern that the trial court not

comment on the evidence with the need to provide the jury with the means to

resolve any factual disputes it may have. Howell v. State, 175 S.W.3d 786,

790 (Tex. Crim. App. 2005). When asked by the jury to reread testimony, the

trial court must first determine if the request is proper under article 36.28.

Iness v. State, 606 S.W.2d 306, 314 (Tex. Crim. App. 1980).               A simple

request for testimony does not, by itself, reflect disagreement, implicit or

express, and is not a proper request under article 36.28. Howell, 175 S.W.3d

at 792; Robison v. State, 888 S.W.2d 473, 480 (Tex. Crim. App. 199486),

cert. denied, 515 U.S. 1162 (1995). We review a trial court’s determination

of whether there is a factual dispute between jury members for an abuse of

discretion. Robinson, 888 S.W.2d at 480.




                                        13
      Here, the jury’s note did not specifically indicate that the jurors disagreed

as to the statement of any witness. Their request for the time of Appellant’s

apprehension was a simple request that did not, by itself, reflect disagreement,

implicit or express.    We therefore hold that the trial court did not err by

determining that it was not a proper request under article 36.28. We further

hold that the trial court did not abuse its discretion by denying Appellant’s

request to inform the jury that they could request specific testimony.         We

overrule his third point.

                                   Conclusion

      Having overruled all three of Appellant’s points, we affirm the trial court’s

judgments.




                                            ANNE GARDNER
                                            JUSTICE

PANEL: GARDNER, WALKER, and MCCOY, JJ.

DO NOT PUBLISH
T EX. R. A PP. P. 47.2(b)

DELIVERED: August 28, 2008




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