      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                      NO. 03-11-00552-CR



                               Keith Wayne Henson, Appellant

                                                v.

                                  The State of Texas, Appellee


     FROM THE DISTRICT COURT OF BURNET COUNTY, 33RD JUDICIAL DISTRICT
        NO. 39066, HONORABLE GUILFORD L. JONES, III, JUDGE PRESIDING



                            MEMORANDUM OPINION


               Keith Wayne Henson, appellant, pleaded guilty to possessing 400 grams or more of

methamphetamine and possessing certain chemicals with the intent to manufacture

methamphetamine. See Tex. Health & Safety Code Ann. §§ 481.115(a), (f) (possession of controlled

substance), .124(a), (b)(3)(B) (possession with intent to manufacture controlled substance) (West

2010). On appeal, appellant complains that the trial court erred in denying his pre-trial motion to

suppress (1) evidence that he contends was obtained pursuant to a search warrant lacking probable

cause and (2) a non-verbal statement that resulted in the discovery of concealed evidence, which he

claims was obtained without compliance with article 38.22 of the Texas Code of Criminal Procedure.

See Tex. Code Crim. Proc. Ann. art. 38.22 (West 2005) (setting forth procedures governing

admissibility of accused’s written or oral statements). We will affirm the judgments of conviction.
                     FACTUAL AND PROCEDURAL BACKGROUND

               In July 2010, the City of Burnet Police Department obtained a warrant to search

appellant’s residence for evidence of a conspiracy to sell and distribute methamphetamine. At the

time, appellant was residing in a home owned by his parents and cohabitating with an alleged

co-conspirator, Jeanette Gaines, who was also named in the search warrant. It is undisputed that

appellant and Gaines were restrained and in custody during the search.

               While police officers were searching the property, appellant led the officers to

evidence that had been buried on the property and other evidence hidden in a shed. Appellant

asserted that the hidden materials were owned and placed on his property by a third party. These

materials were later established to constitute methamphetamine or constituents of methamphetamine.

Based on this evidence and other materials discovered in the search, appellant was charged with

multiple drug-related crimes as well as unlawful possession of a firearm by a felon.

               Before trial, appellant filed a motion to suppress all evidence found pursuant to the

search warrant, alleging that the affidavit supporting the warrant did not establish probable cause.

Appellant further sought to suppress the concealed materials whose location he had disclosed to

investigators, asserting that the act of leading investigators to those materials constituted a

non-verbal statement that was induced by police statements that were the functional equivalent of

an interrogation. Appellant argued that the fruits of his non-verbal statement should be excluded

because the non-verbal statement resulted from custodial interrogation, he was not properly

Mirandized, and no recording of the statement was made. See Miranda v. Arizona, 384 U.S. 436




                                                 2
(1966); Code Crim. Proc. art. 38.22 (setting forth procedures governing admissibility of accused’s

written or oral statements).

               Following an evidentiary hearing, the trial court denied the motion to suppress,

concluding that (1) under the totality of the circumstances, probable cause was shown for the search

warrant, (2) appellant’s non-verbal statement was voluntary and was not coerced or induced by the

police officers, and (3) appellant had been properly Mirandized prior to showing officers the location

of the hidden materials. Appellant subsequently pleaded guilty to the two charges of which he was

convicted; in exchange, the State abandoned the remaining charges. A jury assessed his punishment

at confinement for 40 years on each count, to be served concurrently, with fines totaling $110,000.

               On appeal, appellant challenges the trial court’s order denying his motion to suppress,

asserting that the affidavit supporting the search warrant failed to establish probable cause and that

the non-verbal statement that resulted in the discovery of hidden inculpatory evidence is inadmissible

under article 38.22 of the Texas Code of Criminal Procedure.


                                   STANDARD OF REVIEW

               We review a trial court’s ruling on a motion to suppress evidence for abuse of

discretion. Crain v. State, 315 S.W.3d 43, 48 (Tex. Crim. App. 2010). A trial court abuses its

discretion when its ruling is arbitrary or unreasonable. State v. Mechler, 153 S.W.3d 435, 439 (Tex.

Crim. App. 2005). A trial court’s ruling on a motion to suppress will be affirmed if it is reasonably

supported by the record and is correct under any theory of law applicable to the case. Young v. State,

283 S.W.3d 854, 873 (Tex. Crim. App. 2009).




                                                  3
               In reviewing a trial court’s ruling on a motion to suppress, we apply a bifurcated

standard of review. Wilson v. State, 311 S.W.3d 452, 457-58 (Tex. Crim. App. 2010); Carmouche

v. State, 10 S.W.3d 323, 327 (Tex. Crim. App. 2000). Although we give almost total deference to

the trial court’s determination of historical facts, we conduct a de novo review of the court’s

application of the law to those facts. Wilson, 311 S.W.3d at 458; Carmouche, 10 S.W.3d at 327.

We afford almost total deference to the trial judge’s rulings on mixed questions of law and fact when

the resolution of those questions depends on an evaluation of credibility and demeanor. State

v. Johnson, 336 S.W.3d 649, 657 (Tex. Crim. App. 2011); Guzman v. State, 955 S.W.2d 85, 89 (Tex.

Crim. App. 1997). We review de novo mixed questions of law and fact that do not depend on an

evaluation of credibility and demeanor. Johnson, 336 S.W.3d at 657; Guzman, 955 S.W.2d at 89.

All purely legal questions are reviewed de novo. Johnson, 336 S.W.3d at 657; Kothe v. State,

152 S.W.3d 54, 62-63 (Tex. Crim. App. 2004).

               At the suppression hearing, the trial judge is the sole trier of fact and exclusive judge

of the credibility of the witnesses and the weight to be given their testimony. St. George v. State,

237 S.W.3d 720, 725 (Tex. Crim. App. 2007); Guzman, 955 S.W.2d at 89. Unless the trial court

abuses its discretion by making a finding unsupported by the record, we defer to the court’s findings

of fact and will not disturb them on appeal. Johnson, 336 S.W.3d at 657; Guzman, 955 S.W.2d at

89; Miller v. State, 335 S.W.3d 847, 854 (Tex. App.—Austin 2011, no pet.). Where the trial court

did not make explicit findings of fact, we review the evidence in the light most favorable to the

court’s ruling and will assume the court made implicit fact findings that are supported by the record.

Wiede v. State, 214 S.W.3d 17, 25 (Tex. Crim. App. 2007); Carmouche, 10 S.W.3d at 328.



                                                  4
                                          DISCUSSION

               In his first appellate issue, appellant challenges the existence of probable cause for

the search warrant.

               No search warrant may issue unless a sworn affidavit is first presented to the

magistrate setting forth sufficient facts to show that probable cause exists for its issuance. Code

Crim. Proc. art. 18.01(b) (West Supp. 2012). Probable cause for a search warrant exists if, under the

totality of the circumstances presented to the magistrate, there is at least a “fair probability” or

“substantial chance” that contraband or evidence of a crime will be found at the specified location.

Flores v. State, 319 S.W.3d 697, 702 (Tex. Crim. App. 2010) (citing Illinois v. Gates, 462 U.S. 213,

238, 243 n.13 (1983)).

               When reviewing a decision by a judge or magistrate to issue a search warrant, we

apply a deferential standard of review because of the constitutional preference for law

enforcement officials to obtain warrants rather than conduct warrantless searches. State v. McLain,

337 S.W.3d 268, 271 (Tex. Crim. App. 2011). The facts submitted for the magistrate’s probable

cause determination are those contained within the four corners of the affidavit and are to be read

in a common-sense and realistic manner. Id.; Rodriguez v. State, 232 S.W.3d 55, 61 (Tex. Crim.

App. 2007). A magistrate may draw reasonable inferences from the facts stated in the affidavit.

Rodriguez, 232 S.W.3d at 61; Hedspeth v. State, 249 S.W.3d 732, 737 (Tex. App.—Austin 2008,

pet. ref’d). When in doubt about the propriety of the magistrate’s conclusion, we defer to all

reasonable inferences the magistrate could have made. Rodriguez, 232 S.W.3d at 61; see McLain,

337 S.W.3d at 271. Our inquiry, then, is whether there were sufficient facts stated within the four



                                                 5
corners of the affidavit, coupled with reasonable inferences from those facts, to establish a fair

probability that evidence of a particular crime would likely be found at a given location. See

Rodriguez, 232 S.W.3d at 62.

                 The affidavit at issue in this case sought a warrant to search appellant’s house in

Burnet County and all other buildings, structures, places, and vehicles on the premises. The affiant

was City of Burnet police officer Noland Hicks. We summarize the pertinent portions of

the affidavit:


C       On July 2, 2010, at 12:09 p.m., an anonymous caller reported to Hill Country Area Crime
        Stoppers that appellant was manufacturing methamphetamine at his Burnet County
        residence. The caller provided (1) a description of appellant and indicated where he lived
        and who owned the property; (2) a statement that appellant was currently on parole for
        manufacturing methamphetamine; (3) information about his medical history; (4) information
        about appellant’s methamphetamine manufacturing process, including sources of
        constituents, locations on the property used for manufacturing, and appellant’s practice of
        burying both the methamphetamine and the glassware used to make it in the area behind a
        greenhouse located on the property; and (5) information about the layout of the property and
        fixtures on the property. Hicks was able to independently corroborate appellant’s physical
        description, his prior criminal history, where he resided, and who owned the property.

•       On July 8, 2010, Hicks had been informed by another officer, Rick Carter of the Marble Falls
        Police Department, that on June 2, 2010, that officer had accompanied another Marble Falls
        police officer, Glenn Hanson, to appellant’s residence to meet with Gaines regarding a
        criminal investigation. Carter was experienced in the investigation of clandestine
        methamphetamine laboratories. While at appellant’s residence, Carter smelled an odor he
        believed was a chemical associated with the manufacture of methamphetamine.
        Appellant was present at the time, and Carter knew appellant to have a prior arrest for
        manufacturing methamphetamine.

C       On July 8, 2010, Hicks met with a confidential informant who had provided credible and
        reliable information in the past that led to the arrest of more than ten narcotics offenders and
        the seizure of a variety of controlled substances. Hicks averred that the informant was
        knowledgeable about the appearance, use of, and method of packaging methamphetamine
        and was familiar with the chemicals and processes used to manufacture methamphetamine.



                                                   6
       The informant stated that he1 had known Gaines for over ten years and had purchased
       methamphetamine from her on many occasions during that time period. The informant
       further stated that he had been present during methamphetamine drug transactions between
       Gaines and others and had also been present while she manufactured methamphetamine.
       Hicks affirmed that the informant was familiar with the look and smell of the chemicals used
       in the manufacturing process. The informant claimed knowledge of appellant’s
       methamphetamine-manufacturing activities through conversations with Gaines and other
       drug users.

C      The informant advised that he had been to appellant’s residence in the preceding 48 hours
       and had “observed a strong chemical smell associated with the manufacture of
       methamphetamine emitting from the residence.” Based on his experience with the
       methamphetamine-manufacturing process, “[t]he [informant] believed that due to the strong
       chemical odor, that [appellant] and Gaines were in the process of manufacturing
       methamphetamine at that time.” The informant further stated that he returned to the
       residence approximately 24 hours later and the smell was no longer present, which led him
       to conclude that the manufacturing process had been completed. Based on his experience
       with appellant and Gaines, the informant believed that methamphetamine was being kept,
       stored, used, and sold from the residence.

C      From June 2, 2010, through July 9, 2010 (the date of the affidavit), police officers with the
       Burnet County Special Operations Unit, Marble Falls Police Department, and Department
       of Public Safety Criminal Investigation Division, conducted periodic surveillance of
       appellant’s Burnet County residence and “observed traffic consistent with narcotic trafficking
       by observing individuals arrive at the residence and stay on [sic] a few minutes then leave
       the residence.”

C      A criminal history search revealed that appellant and Gaines had both been arrested on
       multiple occasions for possession, manufacture, and transportation or delivery of controlled
       substances or chemical precursors.


                On appeal, appellant argues that each source of information should be evaluated

separately and stricken if stale, conclusory, or uncorroborated. He asserts that the information about

the “smell” emanating from his residence in June 2010 was too stale to be considered; the

anonymous tip was insufficient because only a few non-material facts were corroborated; the


       1
           The gender of the confidential informant does not appear in the record.

                                                  7
information obtained from the informant was conclusory with regard to appellant as opposed to

Gaines; and the information regarding surveillance of the property was conclusory and did not

provide any information about the number of cars, identity of individuals, or their activities that were

allegedly consistent with narcotic trafficking. Appellant argues that, with the foregoing information

stricken, the magistrate could not reasonably have concluded that there was a fair probability that

evidence of illegal activity could be found at appellant’s Burnet County residence.

                 In reviewing the search warrant affidavit, the trial court carefully considered

appellant’s argument and found that, if viewed alone, (1) the information from June 2010 would not

support a finding of probable cause because that information was stale, (2) the minimally

corroborated anonymous tip would not support a finding of probable cause, and (3) the information

from the confidential informant would be marginal but not clearly insufficient. However, the court

said that, in accordance with Illinois v. Gates, 462 U.S. 213 (1983), the information in the affidavit

could not be viewed in isolation, and based on the totality of the information provided in the search

warrant, the magistrate had a substantial basis for concluding that probable cause existed. See id.

at 238 (“The task of the issuing magistrate is simply to make a practical, common-sense decision

whether, given all the circumstances set forth in the affidavit before him . . . there is a fair probability

that contraband or evidence of a crime will be found in a particular place.”). The court noted that,

in addition to the information contained in the challenged portions of the affidavit, “[t]he affidavit

does contain other facts including observation of vehicle traffic consistent with drug-trafficking and

knowledge of this defendant and the other person, [Gaines], living [in] the house as being known

drug dealers.”



                                                     8
               Probable cause requires evidence that amounts to “more than bare suspicion” but

“less than . . . would justify . . . conviction.” Brinegar v. United States, 338 U.S. 160, 175 (1949).

The existence of probable cause necessitates “an evaluation of probabilities, and probabilities ‘are

the factual and practical considerations of everyday life on which reasonable and prudent men, not

legal technicians, act.’” Weide v. State, 214 S.W.3d 17, 24 (Tex. Crim. App. 2007) (quoting

Brinegar, 338 U.S. at 175). Probable cause is not a “finely tuned standard” but is instead a “fluid

concept,” and its “substantive content” is derived from “the particular context[] in which” it is

assessed. Orneales v. United States, 517 U.S. 690, 696 (1996). Probable cause “exist[s] where the

known facts and circumstances are sufficient to warrant a man of reasonable prudence in the belief

that contraband or evidence of a crime will be found.” Id. “Known facts and circumstances include

those personally known to law enforcement officers or those derived from a ‘reasonably trustworthy’

source.” Weide, 214 S.W.3d at 24.

               The task of a reviewing court, which in this case includes the trial court, is not to

determine de novo whether a search warrant affidavit states probable cause, but rather is to ensure

that, given the totality of the circumstances set forth in the affidavit, the issuing magistrate had a

substantial basis for concluding that probable cause was shown. Gates, 462 U.S. at 239; Hennessy

v. State, 660 S.W.2d 87, 89 (Tex. Crim. App. 1983). Under the totality-of-the-circumstances

standard of analysis, the information contained in the affidavit must not be viewed in isolation, as

appellant suggests.    State v. Long, No. 03-11-00725-CR, 2012 WL 1959316, at *6 (Tex.

App.—Austin May 31, 2012, no pet.) (mem. op., not designated for publication). To the contrary,

as the trial court correctly observed, it is impermissible to employ a “divide-and-conquer” or



                                                  9
“piecemeal” approach to analyzing the information upon which the magistrate found probable cause

to exist. See id. Moreover, the resolution of doubtful or marginal cases should largely be determined

by the preference to be accorded to warrants. United States v. Ventresca, 380 U.S. 102, 109 (1965);

Hennessy, 660 S.W.2d at 92. Keeping this preference for the warrant process in mind, and giving

the magistrate’s probable cause determination the deference it is due, we conclude that, based on the

totality of the circumstances presented in Officer Hicks’s affidavit, the magistrate had a substantial

basis for concluding that probable cause existed. Because the trial court did not err in denying

appellant’s motion to suppress on that basis, we overrule appellant’s first appellate issue.

                In his second appellate issue, appellant contends that the trial court should have

suppressed his non-verbal “statement” in which he led officers to hidden inculpatory evidence. It

is undisputed that appellant was in custody at the time that he directed police to drug materials buried

in his yard and hidden in a shed on his property. Appellant contends, however, that he was not given

appropriate statutory or Miranda warnings prior to volunteering the information, that he was further

induced to provide the information based on statements made by officers that were tantamount to

custodial interrogation, and that his oral statement was not electronically recorded as required by

article 38.22 of the Texas Code of Criminal Procedure.2


        2
          Miranda warnings must include a statement informing the individual of the right to remain
silent, that any statement made may be used as evidence against him, that he has the right to have
an attorney present during questioning, and if he is unable to hire an attorney, he has the right to have
an attorney appointed if he cannot afford one. Miranda v. Arizona, 384 U.S. 436, 444 (1966). These
warnings are also required by article 38.22 of the Texas Code of Criminal Procedure, and the statute
includes an additional warning that the accused “has the right to terminate the interview at any
time[.]” Tex. Code Crim. Proc. Ann. art. 38.22, § 2(a) (West 2005).



                                                   10
               The following facts are not disputed in any material respect. After officers entered

appellant’s home pursuant to the search warrant, appellant and Gaines were removed from their

bedroom, handcuffed, and seated at a kitchen table. While officers were searching the residence,

appellant became concerned about his parents’ home being damaged during the search. Appellant

asked to speak to Officer Brent Nichols, and when Nichols assented, appellant asked him not to “tear

up” his parents’ place. Nichols responded to the effect that he would “go easy” on appellant if he

told police where everything was. Based on this statement, appellant said he believed Nichols was

promising that officers would not tear up his parents’ house and would not charge him with a crime,

if he showed them evidence hidden on the property. Appellant then led officers to a place where

some materials were buried, and while officers were digging up the contraband, he asked if officers

would charge a third party, who allegedly owned the concealed materials, rather than him. Nichols

apparently responded that the materials would be fingerprinted to determine if they could be

connected to another person and, if so, whether criminal charges would be filed against appellant

would depend on what other evidence was discovered. Appellant further offered to provide

information regarding other methamphetamine manufacturers, and, in response, Captain Dwight

Hardin with the Burnet County Sheriff’s Office agreed not to prosecute federal charges against

appellant in return for his cooperation in that regard. Appellant later led officers to additional

materials hidden in a shed on his property. None of appellant’s non-verbal or oral statements were

recorded electronically or reduced to a signed writing. See Code Crim. Proc. art. 38.22 (procedural

requirements for using accused’s oral and written statements in criminal proceedings).




                                                11
               What is factually disputed in this case is whether appellant was given his Miranda

warnings before he initiated the conversation with Officer Nichols about avoiding damage to his

parents’ home. Officer Hicks testified at the suppression hearing that appellant “was read his

Miranda warnings while [appellant and Gaines] sat at the table. That was right after we entered the

residence.” Appellant contends that he was not given his Miranda warnings until after he showed

officers the concealed materials.

               After considering the testimony of the witnesses at the suppression hearing, the trial

court concluded that appellant’s oral and non-verbal statements to the officers were voluntary and

were not the product of police officer statements intended to trick or coerce appellant into making

inculpatory statements. The trial court noted that appellant initiated the conversation that led to his

disclosure of the hidden materials and that he “was one experienced in confrontation with law

enforcement [and] was standing in his own home.” The trial court also found that appellant “was

properly ‘Mirandized’ prior to the events leading to the discovery and retrieval of the buried jug.”

               The prosecution may not use statements stemming from custodial interrogation of a

defendant unless it demonstrates the use of procedural safeguards effective to secure the privilege

against self-incrimination. Miranda, 384 U.S. at 444; Alvarado v. State, 853 S.W.2d 17, 20 (Tex.

Crim. App. 1993). In order for the Miranda safeguards to apply, there must be two showings:

(1) the suspect must have been “in custody,” and (2) the police must have “interrogated” the suspect

either by express questioning or its functional equivalent. See Rhode Island v. Innis, 446 U.S. 291,

300-302 (1980); Jones v. State, 795 S.W.2d 171, 174 (Tex. Crim. App. 1990).




                                                  12
                Article 38.22 of the Texas Code of Criminal Procedure further precludes the use of

statements that result from custodial interrogation absent compliance with additional procedural

safeguards, which include the following with respect to an accused’s oral statements: (1) an accurate

and unaltered electronic recording of the statement, (2) admonishment of Miranda and statutory

warnings to the accused before the statement was made, (3) the accused’s knowing, intelligent, and

voluntary waiver of Miranda and statutory warnings, (4) use of an accurate recording device by a

competent operator, and (5) positive identification of all voices on the recording. Code Crim. Proc.

art. 38.22, § 3. However, article 38.22, § 3(c) specifically exempts from these requirements oral

statements that contain “assertions of facts or circumstances that are found to be true and which

conduce to establish the guilt of the accused, such as the finding of secreted or stolen property or the

instrument with which he states the offense was committed.” Id. § 3(c). Such statements “need only

circumstantially demonstrate the defendant’s guilt,” and “[if] even a single assertion of fact [is]

found to be true and conducive to establishing the defendant’s guilt, then the statement is admissible

in its entirety.” Woods v. State, 152 S.W.3d 105, 117 (Tex. Crim. App. 2004). The only warnings

that must precede an oral confession admitted under section 3(c) are the Miranda warnings.

Robertson v. State, 871 S.W.2d 701, 714 (Tex. Crim. App. 1993); see also Perillo v. State,

758 S.W.2d 567, 575 (Tex. Crim. App. 1988) (stating that Miranda warnings must precede

confession offered under Article 38.22, § 3(c)). Thus, if appellant’s statements do not stem from

custodial interrogation, neither Miranda nor article 38.22 requires their suppression. Galloway

v. State, 778 S.W.2d 110, 112 (Tex. App.—Houston [14th Dist.] 1989, no pet.); see also Code Crim.

Proc. art. 38.22, § 5 (exempting from article 38.22’s requirements statements that do not stem from



                                                  13
custodial interrogation or are res gestae of arrest or offense). Even if the appellant’s statements were

the product of custodial interrogation, they would still be admissible without compliance with article

38.22 as long as Miranda warnings were administered before his statement to police.

                There is no question that appellant was in custody at the time he showed police where

the inculpatory materials were hidden on his property. The State disputes, however, that appellant’s

statements were the product of an “interrogation” within the meaning of Miranda and article 38.22.

In the alternative, the State asserts that the statements would be exempt from article 38.22’s

procedural requirements under the exception stated in section 3(c).

                We agree that appellant’s non-verbal statement is exempt under section 3(c) even if

it was the product of custodial interrogation, an issue we do not reach.3 Although appellant claims

he was not given the Miranda warnings until after the hidden materials had been discovered, the trial

court determined this issue adversely to him based on Hicks’s testimony, and we defer to the trial

court’s assessment of the credibility of the witnesses and the weight to be given their testimony. See

St. George, 237 S.W.3d at 725. The same is true regarding the voluntariness of his oral and

non-verbal statements to police officers. Further, the non-verbal statement at issue consisted of

assertions of fact—the locations of hidden materials related to the production of

methamphetamine—that were found to be true and which were conducive to establishing appellant’s

guilt. Appellant’s voluntary statement thus falls squarely within the terms of section 3(c) and, in


       3
          “Custodial interrogation” is questioning initiated by police after a person has been “taken
into custody or otherwise deprived of his freedom of action in any significant way.” Miranda,
384 U.S. at 444. In addition to actual questioning, “interrogation” can encompass police speech or
conduct that “the police should know are reasonably likely to elicit an incriminating response from
the suspect.” Rhode Island v. Innis, 446 U.S. 291, 301 (1980). Words or actions on the part of the
police that are normally attendant to arrest and custody do not constitute interrogation. Id.

                                                  14
light of the court’s determination that appellant was properly Mirandized, was admissible without

regard to the procedural requirements in article 38.22, § 3.

               Appellant also contends that his “confession” was invalid because it was induced by

a promise “of such an influential nature that it could cause a defendant to speak untruthfully.”

Henderson v. State, 962 S.W.2d 544, 564 (Tex. Crim. App. 1997) (citing Code Crim. Proc. art.

38.21, which states that “[a] statement of an accused may be used in evidence against him if it

appears that the same was freely and voluntarily made without compulsion or persuasion, under rules

hereafter prescribed”). Appellant cites Nichols’s “promise” to “go easy” on him and Hardin’s

“promise” not to prosecute him federally if he provided information about other methamphetamine

manufacturers. We conclude that Nichols’s response, when considered in the context in which it was

made, is not of such an influential nature that it would have caused appellant to speak untruthfully.

Nichols’s statement was directly responsive to appellant’s inquiry about avoiding damage to his

parents’ home; to the extent appellant perceived it to convey anything more than was spoken, such

an interpretation was not reasonable, especially by someone with multiple prior interactions with law

enforcement. Hardin’s promise came only after appellant showed officers the location of hidden

contraband and thus could not have induced appellant’s non-verbal statement. Moreover, Hardin

testified that the promise not to prosecute federally was based on appellant’s offer to provide

information about third parties and was not offered in exchange for appellant’s confession.

               Because the trial court did not abuse its discretion in denying appellant’s motion to

suppress based on non-compliance with article 38.22 or improper inducement of his “confession,”

we overrule appellant’s second appellate issue.



                                                  15
                                          CONCLUSION

                 For the reasons stated, we affirm the judgments of conviction.




                                       ____________________________________________
                                       J. Woodfin Jones, Chief Justice


Before Chief Justice Jones, Justices Goodwin and Field

Affirmed

Filed: April 18, 2013

Do not publish




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