Affirmed and Memorandum Opinion filed August 28, 2018.




                                      In The

                     Fourteenth Court of Appeals

                               NO. 14-17-00665-CR

                    DEBORAH MARIE FALCO, Appellant
                                         V.
                       THE STATE OF TEXAS, Appellee

                    On Appeal from the 412th District Court
                           Brazoria County, Texas
                       Trial Court Cause No. 75551-CR

                 MEMORANDUM                      OPINION


      Appellant Deborah Marie Falco appeals the denial of her conviction for
aggravated kidnapping on the ground that the trial court erred in failing to suppress
her post-arrest statement to a police detective. We affirm.

                                 I. BACKGROUND

      On January 10, 2015 appellant’s house was under police surveillance in
connection with a methamphetamine investigation. Sergeant Kristi Carlson testified
that she had seen a black Ford Ranger parked in front of appellant’s house that night.
The truck’s interior light was on and Carlson saw a person inside the vehicle, so she
parked down the street and observed the truck through night-vision goggles. Carlson
informed Corporal Skye Wingo when the truck left the area. Carlson attempted to
follow the truck, but lost it in the dark. Carlson returned to surveil the house and
saw people leave the house and get into a car, then one of the people went back into
the house.   When the car—a rented Chevrolet Cruze—left the house, Wingo
followed it, then pulled the vehicle over. Carlson pulled over behind Wingo and
approached the vehicle as well.

      Wingo did not recognize the driver, Jimmy Joe Garcia, but did recognize the
passenger Karri Scott. Scott had a bandana around her neck and her feet were resting
on a safe. She was pale, and when Wingo asked Scott her name, she did not look
toward Wingo but answered him with her head down, her voice slurred. Wingo had
Garcia step out of the car and asked Carlson to watch Garcia while Wingo spoke to
Scott. After Carlson saw Garcia swallow a bulge in his mouth, the officers placed
him the back of the patrol car, and returned to Scott.

      Wingo knocked on the car window and when Scott didn’t respond, Wingo
opened the car door and told her to step out of the car. She said she could not, and
when Wingo asked why, Scott told him she was tied. Carlson saw that a jacket had
been placed backwards across Scott’s chest, and when they removed the jacket, they
saw that Scott’s hands were tied behind her back. Carlson cut the tie from Scott’s
hands, took Scott to Carlson’s patrol car, and called an ambulance.

      Scott told Carlson that Garcia had told her that if he was pulled over, he would
kill Scott. Scott related that she had gone to appellant’s house where she and
appellant had gotten into an argument. Appellant and Garcia took Scott’s truck,
which was the black Ford Ranger Carlson had seen earlier, and appellant made her

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swallow at least six pills before putting a gag into her mouth and securing a bandana
over the gag. Scott stated that she was then forced into the car at gunpoint, and that
appellant said if anyone found out, then she, appellant, would burn Scott’s house
down with Scott’s fiancé inside it.

      By this time in Scott’s narrative, the ambulance had arrived. EMS transported
Scott to the hospital, where she was intubated. Scott remained in the hospital for a
week, but does not remember it.

      While Carlson spoke with Scott, the car was searched and found to contain,
among other things, a loaded .38 caliber revolver, an expandable baton, and mail
addressed to appellant. Four days after the kidnapping, Scott’s black Ford Ranger
was found. The seat had been pulled farther forward than normal and the vehicle
had been cleaned.

      Appellant was arrested and charged by indictment.             While in custody,
appellant asked to speak to Detective Clark McGrael, the investigator assigned to
the case. The videotape of that meeting shows that McGrael read appellant her rights
and asked if she wished to waive those rights and to speak with him and make a
written statement.    Appellant answered, “Yes, to a certain extent.”          McGrael
confirmed that appellant was represented by counsel, but appellant neither invoked
her right to have counsel present nor waited for McGrael to ask her a question. She
instead gave her version of events, stating that she had confronted Scott about
stealing from her, but that it had been Scott’s idea to sign her truck over to appellant.
According to appellant, Scott had gagged herself and invited Garcia to tie her up.
The trial court denied appellant’s motion to suppress her statement to McGrael.

      At trial, Scott testified that she and appellant had been friends, but on this
night, appellant had accused her of stealing money. According to Scott, appellant
said that Scott was going to sign her truck over to appellant. Appellant then handed
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Garcia a .38 revolver and took out a baton. Feeling threatened, Scott signed the
paper appellant had presented to her. Appellant then took Scott’s phone and keys
and gave the phone to Garcia. Scott heard appellant tell Garcia that she, appellant,
was going to get rid of the truck, then left. When appellant returned, appellant and
Garcia discussed how many amitriptyline to give Scott and decided on six.
Appellant held Scott’s face upward and poured water in her mouth, then dropped the
pills in. Garcia then tied Scott’s hands behind her back, and appellant balled up a
bandana and stuffed it in Scott’s mouth. Appellant placed a second bandana between
Scott’s teeth and around the back of her head, and Garcia tied it. Appellant said that
Garcia was going to drop Scott off, then meet back up with appellant. Scott
understood that she would not be “dropped off” alive.

      Corporal Wingo and Sergeant Carlson also testified at trial, as did Detective
McGrael. The jury additionally viewed the videotapes of the traffic stop and of
appellant’s statement to McGrael.

      The jury found appellant guilty of aggravated kidnapping, and after finding
that appellant had a prior felony conviction, the jury assessed punishment at thirty
years’ confinement plus a $10,000 fine.

      In a single issue, appellant argues that the trial court erred in denying the
motion to suppress her statement.

                             II. STANDARD OF REVIEW

      We review the denial of a motion to suppress for abuse of discretion. Furr v.
State, 499 S.W.3d 872, 877 (Tex. Crim. App. 2016). In doing so, we view the record
in the light most favorable to the trial court’s ruling, reversing only if the ruling is
arbitrary, unreasonable, or “outside the zone of reasonable disagreement.” State v.
Story, 445 S.W.3d 729, 732 (Tex. Crim. App. 20104). We afford almost complete


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deference to the trial court’s determination of historical facts, especially when based
on credibility and demeanor. Furr, 499 S.W.3d at 877. We review de novo the
application of law to those facts that do not turn on an evaluation of credibility and
demeanor. Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim. App. 1997). We will
uphold the ruling if it is correct on any theory of law applicable to the case, but we
will not reverse based on a legal theory not presented to the trial court. Story, 445
S.W.3d at 732.

                             III. VALIDITY OF WAIVER

      Appellant contends that the statement at issue was obtained in violation of her
Fifth Amendment and Sixth Amendment rights. She contends that she did not freely
and voluntarily waive her rights because she stated that she waived her rights “to a
certain extent.” She further maintains that the statement was obtained in violation
of her Sixth Amendment right to counsel because McGrael did not discontinue the
interrogation when appellant stated that she was represented by counsel.

      It previously was the law that if an accused was represented by counsel, the
police could not initiate interrogation without notice to, and the presence of, defense
counsel. Michigan v. Jackson, 475 U.S. 625, 636 (1986); Upton v. State, 853 S.W.2d
548, 553 (Tex. Crim. App. 1993) (citing Holloway v. State, 780 S.W.2d 787, 795
(Tex. Crim. App. 1989)). That law has since been expressly overruled. See Montejo
v. Louisiana, 556 U.S. 778, 797 (2009); Pecina v. State, 361 S.W.3d 68, 78 (Tex.
Crim. App. 2012).

      Under the current state of the law, an accused who wants defense counsel
present during custodial interrogation must affirmatively invoke that right. See
Montejo, 556 U.S. at 794–95; Pecina, 361 S.W.3d at 78. Appellant acknowledges
this. She further acknowledges that the more recent rule appears to apply even when
the interrogating officer knows that the accused is represented by counsel. She
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nevertheless suggests that whether the officer knows the accused is represented by
counsel should be a factor in determining whether the accused’s waiver of the right
to have counsel present was made knowingly, voluntarily, and intelligently.
Appellant neither contends that the law currently requires the interrogating officer’s
knowledge to be treated as a factor to be considered, nor does she explain why it
should do so. She also did not argue in in the trial court for the change in the law
that she now suggests. We decline the invitation to create such a requirement.

      The record before us readily supports the trial court’s ruling. It is undisputed
that it was appellant herself who asked to speak to McGrael and that before doing
so, McGrael read appellant her rights in accordance with the standards of Miranda
v. Arizona1 and Texas Code of Criminal Procedure art. 38.22. When McGrael asked
appellant, “Do you understand these rights I have read you?” she responded “Yes, I
do,” and nodded. McGrael then asked, “Do you knowingly, intelligently, and
voluntarily waive these rights I have read you and do you desire to talk to me and
give me a written statement?” Appellant nodded and said, “Yes, I do to a certain
extent.” McGrael then added, “While I was reading you those, you mentioned you
have your attorney.” Appellant answered, “Yes, David Cunningham. I think you
spoke to him.” McGrael remained silent, but rather than invoking her right to have
counsel present, appellant said, “Let me—there’s just so much stuff that proves me
innocent of this. I would like to tell you what this is about.” She then began to tell
her version of events. When she paused and asked McGrael, “what do you want to
know,” he shook his head and said, “you’re telling me,” and appellant continued
with her statement. At no point did she invoke her right to counsel or ask to
terminate the interview.



      1
          384 U.S. 436 (1999).

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      On this record, there is no basis on which to conclude that the trial court
abused its discretion in denying appellant’s motion to suppress her videotaped
statement.

      We overrule appellant’s sole issue.

                                IV. CONCLUSION

      Having overruled the only issue presented, we affirm the trial court’s
judgment.




                                      /s/       Tracy Christopher
                                                Justice


Panel consists of Justices Boyce, Christopher, and Busby.
Do Not Publish — TEX. R. APP. P. 47.2(b).




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