                        COURT OF APPEALS
                         SECOND DISTRICT OF TEXAS
                              FORT WORTH

                             NO. 02-13-00058-CR


GARRY DWAYNE ALFORD                                                APPELLANT

                                       V.

THE STATE OF TEXAS                                                      STATE


                                    ----------

          FROM THE 396TH DISTRICT COURT OF TARRANT COUNTY
                      TRIAL COURT NO. 1263768D

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                        MEMORANDUM OPINION 1

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      A jury convicted Appellant Garry Dwayne Alford of possession of four

grams or more but less than 200 grams of cocaine and assessed his punishment

at 55 years’ confinement as a habitual offender. The trial court sentenced him

accordingly. Appellant brings three points on appeal, complaining that the trial

court erroneously denied his motion to suppress his confession, committed jury
      1
      See Tex. R. App. P. 47.4.
charge error by incorrectly charging the jury on his confession, and awarded him

excessive punishment. Because the trial court committed no reversible error, we

affirm the trial court’s judgment.

Summary of Facts

       On December 1, 2011, a Fort Worth S.W.A.T. team executed a warrant at

the residence of Appellant and his brother, who is mentally handicapped. Police

handcuffed both men and then searched the residence and found 4.88 grams of

cocaine, a small amount of heroin, and other paraphernalia. After being read his

Miranda rights, Appellant confessed to being the sole owner of the seized

narcotics in a handwritten statement that read, “My brother . . . is NOT involved in

any drug involvement at 4212 Wiman Dr.[;] I take full responsibility for all [. . .] at

the house. Crack. Heroin. —GA.” (Appellant’s handwriting of the omitted word

is illegible.)

       Appellant filed a motion to suppress, and in a Jackson v. Denno 2 hearing,

he testified that an officer at the scene, Sergeant Kyle Jarrell, had promised that

his brother would not be arrested or charged if Appellant confessed to owning the

narcotics found at the residence.      Sergeant Jarrell testified that he made no

promises to Appellant and did not coerce him to confess in any way. The trial

court entered findings of fact and conclusions of law, concluding that



       2
        378 U.S. 368, 84 S. Ct. 1774 (1964).



                                          2
      there were no promises made to [Appellant] by [Sergeant Jarrell].
      [Appellant] was competent, and knowingly and intelligently and
      voluntarily waived his rights as set out on the document and gave
      the written statement to Detective Jarrell.

           The Court finds that that is legally admissible and concludes
      as a matter of law that the statement obtained by Detective Jarrell,
      as well as all of the narcotics found in the residence . . . are
      admissible in trial.

      The jury charge at guilt read, “[B]efore a statement given to officers may be

considered voluntary, it must be shown by legal evidence beyond a reasonable

doubt that prior to making such oral statement . . . the accused has been warned

[of his Miranda rights].”   On January 30, 2013, a Tarrant County jury found

Appellant guilty of the offense of possession of a controlled substance, namely

cocaine, of four grams of more, but less than 200 grams, including any

adulterants or dilutants.

      The court’s charge at punishment informed the jurors of the habitual

offender notice alleging that Appellant had been previously convicted of the

felony offense of possession of a controlled substance of one gram or more, but

less than four grams, namely cocaine, as well as the felony offense of delivery of

a controlled substance of less than twenty-eight grams, namely cocaine. The

habitual offender notice states that these convictions were handed down in

Tarrant County District Court on November 19, 2004, and June 15, 1992,

respectively. The charge instructed the jury to set the punishment of Appellant at

“confinement in the Texas Department of Criminal Justice for life, or any term of

years not more than ninety-nine (99) or less than twenty-five (25).”


                                         3
      Having found both of the allegations in the habitual offender notice true,

the jury assessed Appellant’s punishment at 55 years’ confinement in the Texas

Department of Criminal Justice. At sentencing, the learned and conscientious

trial judge announced the jury’s conviction and punishment and then asked, as

the law requires, “Is there any legal reason . . . why sentence should not be

pronounced?” 3 Appellant’s attorney replied, “No.” Appellant filed no motion for

new trial.

Admissibility of Appellant’s Written Statement

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

motion to suppress his written statement. We review a trial court’s ruling on a

motion to suppress evidence under a bifurcated standard of review. 4 We give

almost total deference to a trial court’s rulings on questions of historical fact and

application-of-law-to-fact questions that turn on an evaluation of credibility and

demeanor, but we review de novo application-of-law-to-fact questions that do not

turn on credibility and demeanor. 5




      3
       See Tex. Code Crim. Proc. Ann. art. 42.07 (West 2006).
      4
        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).
      5
       Amador, 221 S.W.3d at 673; Estrada v. State, 154 S.W.3d 604, 607 (Tex.
Crim. App. 2005); Johnson v. State, 68 S.W.3d 644, 652–53 (Tex. Crim. App.
2002).



                                         4
      Appellant contends that his statement was involuntary because it was

induced by an improper promise from the police that they would release his

brother if Appellant confessed to being the owner of the narcotics seized.

Appellant argues that this promise renders the statement involuntary. But the

police officer in question, Sergeant Jarrell, testified that he made no promises.

The trial judge believed the police officer.   As the Texas Court of Criminal

Appeals has explained,

            As is often the case, this argument comes down to a swearing
      match between appellant and the arresting officers. The trial court,
      who is the exclusive judge of the credibility of the witnesses and the
      weight to be given the testimony at the suppression hearing,
      believed the testimony of the officers. 6

      Other than Appellant’s testimony, nothing in the record contradicts the

police officer’s statement. Applying the appropriate standard of review, we hold

that the trial court did not err in admitting Appellant’s written statement. We

overrule Appellant’s first point.

Jury Instruction

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

erroneously instructing the jury regarding his written statement. “[A]ll alleged

jury-charge error must be considered on appellate review regardless of



      6
       Nichols v. State, 754 S.W.2d 185, 191 (Tex. Crim. App. 1988) (citations
omitted), overruled on other grounds by Harris v. State, 784 S.W.2d 5 (Tex. Crim.
App. 1989), and Green v. State, 764 S.W.2d 242 (Tex. Crim. App. 1989).



                                        5
preservation in the trial court.” 7 In our review of a jury charge, we first determine

whether error occurred; if error did not occur, our analysis ends. 8          If error

occurred, whether it was preserved determines the degree of harm required for

reversal. 9

       Appellant correctly points out that, instead of instructing the jury on the

contested issue of whether Sergeant Jarrell secured the confession by promising

Appellant that charges would not be filed against his brother if Appellant

confessed, the trial court instructed the jury on the uncontested issue of whether

Sergeant Jarrell advised Appellant of his Miranda warnings before taking the

statement.

       Appellant believes that Gelinas v. State 10 controls this issue but argues

that it was wrongly decided and creates bad policy. Gelinas is another in a line

of recent cases holding that the jury must determine whether to follow the

instructions contained in the application paragraph or those contained in the

abstract portion of the jury charge. 11 Unlike the jury charge in Gelinas, however,

       7
        Kirsch v. State, 357 S.W.3d 645, 649 (Tex. Crim. App. 2012).
       8
        Id.
       9
        Id.
       10
           398 S.W.3d 703 (Tex. Crim. App. 2013).
       11
       Id. at 708–09; see also Vasquez v. State, 389 S.W.3d 361, 371–72 (Tex.
Crim. App. 2012); Crenshaw v. State, 378 S.W.3d 460, 466–67 (Tex. Crim. App.
2012).



                                          6
the jury charge in the case now before this court did not misstate the law.

Rather, it omitted Appellant’s theory of inadmissibility of his statement.     The

Texas Court of Criminal Appeals has unequivocally stated,

             Under Texas statutory law, there are three types of
      instructions that relate to the taking of confessions: (1) a “general”
      Article 38.22, § 6 voluntariness instruction; (2) a “general” Article
      38.22, § 7 warnings instruction (involving warnings given under § 2
      and § 3); and (3) a “specific” Article 38.23(a) exclusionary-rule
      instruction. In essence, the Section 6 “general” instruction asks the
      jury: “Do you believe, beyond a reasonable doubt, that the
      defendant’s statement was voluntarily made? If it was not, do not
      consider the defendant’s confession.” The Section 7 instruction sets
      out the requirements of 38.22, § 2 or § 3 and asks the jury to decide
      whether all of those requirements were met. The Article 38.23(a)
      “specific” instruction is fact-based: For example, “Do you believe
      that Officer Obie held a gun to the defendant’s head to extract his
      statement? If so, do not consider the defendant’s confession.”

             As we noted in Vasquez v. State, confusion exists about
      which, if any, jury instruction is appropriate because our case law
      “does not always distinguish, and sometimes blurs, the requirements
      for getting an instruction under article 38.22 and for getting an
      instruction under the exclusionary rule of article 38.23.”

             We again try to clarify the distinction: Due process and
      Miranda claims may warrant both “general” and “specific”
      voluntariness instructions; Texas statutory claims warrant only a
      “general” voluntariness instruction.         It is the defendant’s
      responsibility to delineate which type of “involuntariness” he is
      claiming—a general (perhaps subjective) lack of voluntariness or a
      specific police-coerced lack of voluntariness—because the jury
      instruction is very different depending upon the type of claim. 12

      The parties here litigated the admissibility of Appellant’s statement in the

Jackson v. Denno hearing. That omitted instruction therefore became “law of the

      12
        Oursbourn v. State, 259 S.W.3d 159, 173–74 (Tex. Crim. App. 2008)
(footnotes omitted).


                                        7
case.” 13 Accordingly, the trial court erred by failing to submit the contested issue

to the jury.

       Having determined that the trial court erred by failing to instruct the jury on

the appropriate issue concerning voluntariness of Appellant’s written statement,

we must now turn to the question of harm.          Appellant neither requested the

proper jury instruction nor objected to its omission. Unpreserved charge error

warrants reversal only when the error resulted in egregious harm. 14             The

appropriate inquiry for egregious harm is a fact-specific one that must be

performed on a case-by-case basis. 15

       In making an egregious harm determination, “the actual degree of harm

must be assayed in light of the entire jury charge, the state of the evidence,

including the contested issues and weight of probative evidence, the argument of

counsel and any other relevant information revealed by the record of the trial as a

whole.” 16


       13
        See id. at 180–81.
       14
         Hollander v. State, 414 S.W.3d 746, 749 (Tex. Crim. App. 2013);
Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1985) (op. on reh’g);
see Tex. Code Crim. Proc. Ann. art. 36.19 (West 2006); Middleton v. State, 125
S.W.3d 450, 453 (Tex. Crim. App. 2003) (stating that the harmless error rule of
article 36.19 applies to article 38.23).
       15
        Taylor v. State, 332 S.W.3d 483, 489 (Tex. Crim. App. 2011).
       16
       Almanza, 686 S.W.2d at 171; see generally Gelinas, 398 S.W.3d at 708–
10 (applying Almanza).



                                          8
     The jury charge as given provided,

             You are instructed that under our law a statement of a
     defendant made while he was under interrogation shall be
     admissible in evidence if it appears that the same was freely and
     voluntarily made without compulsion or persuasion. However,
     before a statement given to officers may be considered voluntary, it
     must be shown by legal evidence beyond a reasonable doubt that
     prior to making such oral statement . . . the accused has been
     warned by the person to whom the statement is made, or by a
     magistrate, that (1) he has the right to remain silent and not make
     any statement and that any statement he makes may be used
     against him at his trial, (2) that any statement he makes may be
     used against him in court, (3) that he has the right to have a lawyer
     present to advise him prior to and during any questioning, (4) that if
     he is unable to employ a lawyer, he has the right to have a lawyer
     appointed to advise him prior to and during any questioning, (5) that
     he has the right to terminate the interview at any time, and that the
     accused, prior to and during the making of the statement, knowingly,
     intelligently, and voluntarily waived the rights set out above.

             So, in this case, if you find from the evidence, or if you have a
      reasonable doubt thereof, that prior to the time the defendant gave
      the alleged statement to Kyle Jarrell, if he did give it, the said Kyle
      Jarrell did not warn defendant in the respects enumerated above, or
      as to any one of such requirements, then you will wholly disregard
      the alleged confession or statement and not consider it for any
      purpose nor any evidence obtained as a result thereof. If, however,
      you find beyond a reasonable doubt that the aforementioned
      warning was given the defendant prior to his having made such
      statement, if he did make it, still, before you may consider such
      statement as evidence in this case, you must find from the evidence
      beyond a reasonable doubt that prior to making such statement, if
      he did, the defendant knowingly, intelligently and voluntarily waived
      the rights hereinbefore set out in the said warning, and unless you
      so find, or if you have a reasonable doubt thereof, you will not
      consider the statement, if any, for any purpose whatsoever or any
      evidence obtained as a result of the statement, if any.

      The issue of the seriousness of this error is a very close call. On the one

hand, the jury was instructed that it could consider the statement as evidence



                                         9
only if the jury found that the statement was made freely and voluntarily, without

compulsion or persuasion. Were our inquiry to end there, the question of harm

would be easily settled.   The instruction on the Miranda warnings, however,

appears to have instructed the jury to consider the statement if they found that

Officer Jarrell gave Appellant the appropriate warnings before he made the

statement, provided that they also found that Appellant knowingly, intelligently,

and voluntarily waived those rights before and during making the statement.

      Not only did Appellant not request the omitted instruction, he specifically

stated that he had no objection to the jury charge before it was read to the jury.

Additionally, considering the record as a whole, Appellant’s statement primarily

exculpated his brother. The drugs were found in the home that Appellant shared

with his brother.   Nothing suggests that Appellant did not have equal care,

custody, and control of possessions in the house, including the drugs. Drugs

were found in the kitchen. Small, clear baggies were found in the living room in a

shoebox that also contained Appellant’s mail. Scales were found in a bedroom.

There was no suggestion that any other person lived in the house who could

have been the owner of the drugs to the exclusion of Appellant.

      Because the charge instructed the jury that they must first find that

Appellant made his statement freely and voluntarily and not as the result of any

compulsion or persuasion before considering it and because of the facts in this

case, we are compelled to hold that the error in the jury charge did not cause




                                       10
Appellant to suffer egregious harm. Accordingly, we overrule Appellant’s second

point.

Cruel and Unusual Punishment

         Appellant argues in his third point that his sentence constitutes cruel and

unusual punishment as prohibited by the Eighth Amendment to the Constitution

of the United States because his sentence is disproportionate to the offense

committed.

         The requirement that a defendant object to what he argues is an

unconstitutional sentence presumes the opportunity to object. Here, Appellant

had that opportunity.        After announcing the sentence, the learned and

conscientious trial judge asked Appellant whether there was any lawful reason

that sentence should not be pronounced. 17 Appellant stated there was none.

Appellant also did not raise the issue in a motion for new trial.         Appellant

therefore has not preserved this issue for appellate review. 18       He also has

provided no evidence of what he would argue were appropriate sentences in

comparable cases. We therefore overrule Appellant’s third point.




         17
          See Tex. Code Crim. Proc. Ann. art. 42.07.
         18
       See Tex. R. App. P. 33.1(a); Landers v. State, 402 S.W.3d 252, 254
(Tex. Crim. App. 2013); Pena v. State, 353 S.W.3d 797, 807 (Tex. Crim. App.
2011).



                                          11
Conclusion

      Having overruled Appellant’s three points on appeal, we affirm the trial

court’s judgment.



                                                /s/ Lee Ann Dauphinot
                                                LEE ANN DAUPHINOT
                                                JUSTICE

PANEL: DAUPHINOT, GARDNER, and GABRIEL, JJ.

DO NOT PUBLISH
Tex. R. App. P. 47.2(b)

DELIVERED: July 10, 2014




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