
NO. 07-00-0290-CR

IN THE COURT OF APPEALS


FOR THE SEVENTH DISTRICT OF TEXAS


AT AMARILLO


PANEL A


MAY 15, 2002


______________________________



ZENON LOPEZ, APPELLANT


V.


THE STATE OF TEXAS, APPELLEE



_________________________________


FROM THE 251ST DISTRICT COURT OF RANDALL COUNTY;


NO. 12,373-C; HONORABLE WILLIAM R. SHAVER, JUDGE


_______________________________


Before BOYD, C.J., and REAVIS and JOHNSON, JJ.
	In one issue, appellant Zenon Lopez challenges his conviction for the offense of
indecency with a child and the resulting jury-assessed punishment of eight years
confinement in the Institutional Division of the Department of Criminal Justice, probated for
eight years.  In his issue, appellant contends that the trial court erred in admitting his
statement into evidence.  Finding no reversible error, we affirm the judgment of the trial
court. 
	The trial court held a hearing outside the presence of the jury to determine the
admissibility of appellant's written statement.  In that statement, he admitted that if the
victim claimed he touched her crotch, it was done by accident.  However, he claimed that
his statement was not voluntary because he was unable to give consent to waive his
constitutional rights due to being under medication and being unable to read what he was
signing.  The court ruled that appellant admitted in his testimony that State's Exhibit No.
5, which contained the Miranda warnings, was voluntary and that, from his testimony, he
understood the written statement in State's Exhibit No. 6.
	We review the trial court's findings as to whether a statement was voluntary under
an abuse of discretion standard.  Cantu v. State, 817 S.W.2d 74, 77 (Tex.Crim.App. 1991). 
When controverted evidence exists as to whether a statement was voluntary, the trial judge
determines credibility of the witnesses and the weight to be given their testimony.  Id.  If
the resolution of a controverted issue is supported by the evidence, it will not be disturbed. 
Muniz v. State, 851 S.W.2d 238, 252 (Tex.Crim.App.), cert. denied, 510 U.S. 837, 114
S.Ct. 116, 126 L.Ed.2d 82 (1993).    
	State's Exhibit No. 5 contains the constitutional warnings provided to appellant, each 
warning was initialed by him, and he signed the warnings at 10:45 a.m. on December 15,
1998.  The constitutional warnings are re-stated at the top of appellant's statement
contained in State's Exhibit No. 6.   Each warning is initialed by appellant.  That statement
was also initialed by appellant at both the beginning and the end and signed by him at the
bottom of the page at 11:50 a.m. on December 15, 1998.  
	At the hearing, appellant testified that someone else wrote the handwritten
statement.  Further, he did not actually read the statement before he signed it, nobody read
the statement to him, and his glasses were broken at the time.  He averred that he put his
initials on the statement because he trusted law enforcement.   Appellant also claimed he
was in bad health on that day recuperating from a heart attack, and he also suffered from
diabetes.  If his blood sugar gets too high, he can pass out or go to sleep.   Due to those
illnesses, he was taking several medications and, on that day, his diabetes was bothering
him.  
	On cross-examination, he admitted that he was at work that day as a grounds
keeper for West Texas A&M University and, after he gave the statement, he returned to
work.  He further admitted that the officers explained the constitutional warnings to him,
that he understood those warnings, and he agreed to waive his rights.  Further, he agreed
that the rights on State's Exhibits No. 5 and No. 6 were essentially the same.  Additionally,
appellant stated that the officers did not beat him up, yell or scream at him, or threaten him. 
He agreed that he signed the statement voluntarily and was not forced or tricked into doing
so.   However, he claimed that part of the statement was not true.  
	Officer Derek Parker testified that he was one of the officers involved in obtaining
a statement from appellant.  He had appellant read the first part of the constitutional
warnings out loud to make sure he understood English and could read it, and then he saw
appellant read the statement.  According to the officer, appellant had no problems reading
the warning out loud.  Appellant also indicated to the officer he had read the written
statement because he said the handwriting was hard to read, but did not say he wished to
change anything in the statement.  Officer Parker testified the statement was voluntary and
given without any threats being made.  
	On cross-examination, the officer stated that he did not check on appellant's current
health condition or whether he was on any medication that day.  He further admitted it was
not his normal practice to question suspects about their physical or mental condition. 
Parker  explained that the written portion was appellant's statement, and appellant did not
ask any questions about the officer's handwriting.  Although Officer Parker agreed that he
did not write down everything appellant said, he averred he basically wrote down word for
word what appellant told him to the best of his ability.
	Appellant has not cited any authority that the police are required to specifically
question suspects about their physical or mental condition prior to taking a statement. 
Further, there is nothing in the record to show that appellant ever informed any officer that
his medication or health affected his ability to understand what was happening or even that
he himself believed that those factors influenced his actions that day.  There was also
testimony from Detective Chris Tinsley on voir dire examination prior to the hearing outside
the presence of the jury that he was present during the entire time the statement was being
taken and that appellant did not mention anything about his health that day.  
	It has been held that the fact a suspect is intoxicated is not determinative of whether
a confession is voluntary, but the question is whether the intoxication renders him
incapable of making an independent, informed decision to confess.  Jones v. State, 944
S.W.2d 642, 651 (Tex.Crim.App. 1996), cert. denied, 522 U.S. 832, 118 S.Ct. 100, 139
L.Ed.2d 54 (1997).   In Rodriquez v. State, 934 S.W.2d 881 (Tex.App.--Waco 1996, no
pet.), the defendant testified that he had drunk a lot of beer but failed to testify that it
impeded his mental abilities, and the court found the confession voluntary.  Id. at 890. 
Further, in Gomes v. State, 9 S.W.3d 373, 378 (Tex.App.--Houston [14th Dist.] 1999, pet.
ref'd), one factor considered by the court was that the defendant failed to complain of her
fatigue or hunger to the point of wanting the investigation to end.  See also Estrada v.
State, 2 S.W.3d 401, 406 (Tex.App.--San Antonio 1999, pet. ref'd).  Since there is no
evidence that appellant's ability to make an informed decision was affected by his
medication or illness on that particular day, the evidence at the hearing supports the trial
court's finding that illness or medication did not render him incapable of voluntarily making
a decision to relinquish his rights.
	With respect to appellant's claim that he did not read the statement before signing
and did not have his glasses with him, the same complaint was made in Wyatt v. State, 23
S.W.3d 18 (Tex.Crim.App. 2000).  However, the court found in that case that the totality
of the circumstances showed that he could see well enough to sign the forms and he
conceded the signatures were his handwriting.  Moreover, he never claimed he did not
understand his rights.  Id. at 25.  
	Similarly, appellant acknowledged that he understood the warnings given to him and
agreed to waive his rights.  He further acknowledged that he voluntarily signed the
statement.  There was also testimony from Parker that appellant was able to read the first
warning out loud without difficulty, thereby showing he was able to read without his
glasses.  Even though appellant made a remark about the handwriting on the statement
being difficult to read, he did not ask the officer any questions about the statement or ask
to have it read to him.  Thus, there is evidence to support the trial court's finding that
appellant understood the written portion of the statement.  
	Appellant also asserts parenthetically that he signed the statement with the
understanding that his whole statement was in writing and it was exactly as he told it. 
Parker stated that, although he did not write down everything appellant said, he took it
down word for word to the best of his ability.  As long as a statement is voluntary, the
officer may reduce an oral statement to writing and paraphrase it.  Heiselbetz v. State, 906
S.W.2d 500, 512 (Tex.Crim.App. 1995).  Appellant's issue is overruled.  
	Accordingly, having found no error in the trial court's admission of the statement into
evidence, we affirm the judgment of the trial court. 

							John T. Boyd
							 Chief Justice

Do not publish.  
 
 
 
 
