AFFIRM; Opinion issued March 5, 2013




                                                             S      In The
                                           Court of Appeals
                                    Fifth District of Texas at Dallas
                                        ────────────────────────────
                                               No. 05-10-00798-CR
                                        ────────────────────────────

                                             MANUEL BAUTISTA, Appellant
                                                                       V.

                                            THE STATE OF TEXAS, Appellee

   ═════════════════════════════════════════════════════════════
                On Appeal from the 429th Judicial District Court
                            Collin County, Texas
                     Trial Court Cause No. 429-80283-09
   ═════════════════════════════════════════════════════════════

                                          MEMORANDUM OPINION

                                      Before Justices Bridges, O=Neill, and Murphy
                                               Opinion By Justice Bridges

         Appellant Manuel Bautista appeals his conviction for manslaughter and his accompanying

sentence of 18 years= imprisonment and a $5,000.00 fine. In a single issue, appellant contends the

trial court erred in denying his motion to suppress his oral statement because he never

affirmatively or intentionally waived his Miranda rights. We affirm.

                                                               Background

         Appellant was indicted for capital murder 1 for causing the death of another in the course of

a burglary or attempted burglary. Appellant, originally from El Salvador, had owned a restaurant


     1
         After pleading not guilty in a jury trial, the jury found appellant guilty of the lesser-included offense of manslaughter.
with the victim, Margarito Llanas. As a result of their failed business venture, appellant claimed

Llanas owed him money.         On October 30, 2008, appellant came into Llanas=s apartment.

Appellant brought a gun to the apartment with him. Detective Scott Epperson, one of the crime

scene officers, testified Llanas=s apartment consisted of three bedrooms with one of the rooms used

as an office. There appeared to have been a struggle in the office. A desk was overturned, the

window was broken, and the blinds were destroyed. A black cable tie lay on the floor, and a box

cutter was under the overturned desk. When the police found Llanas, he was lying on his back on

top of broken glass and the blinds from a window. He had been shot in both the head and

abdomen. The gunshot wound to his abdomen had stippling around it, indicating an intermediate

range shot. The wound to the head contained both stippling and soot, indicating a closer range

shot.

        Officers stopped appellant and his son at a Walmart. A handgun was found underneath

the passenger seat of appellant=s vehicle. The DNA found on the grip and trigger of the gun was

consistent with both appellant=s and Llanas=s DNA. At the Walmart, officers bagged appellant=s

hands for a gunshot residue test, which later showed appellant had a direct or indirect connection to

a recently fired weapon. Officers also seized appellant=s jacket, which had blood flecks on it, later

found to be consistent with Llanas=s blood. In appellant=s car, the officers found cable ties and

their packaging with one cable tie missing. The ties were the same type as the black tie found in

the office where Llanas was killed. That cable had both appellant=s and Llanas=s DNA on it.

        Appellant filed an ominbus pre-trial motion that included a request for a hearing to

determine the voluntariness and admissibility of Aany statements allegedly made by [him], either

orally or in writing.@ During the course of trial, the trial court conducted a hearing on the

admissibility of appellant=s recorded police interview.     Following the hearing, the trial court




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found the recorded statement was freely, voluntarily, and knowingly made and denied appellant=s

motion to suppress.

                                              Analysis

         In a single issue, appellant contends the trial court erred in denying appellant=s motion to

suppress his oral statement obtained by Plano Police Detective Epperson because appellant never

affirmatively or intentionally waived his Miranda rights. On direct appeal, we measure the

propriety of the trial court=s ruling with respect to alleged Miranda violations under the totality of

the circumstances, almost wholly deferring to the trial court on questions of historical fact and

credibility, but reviewing de novo all questions of law and mixed questions of law and fact that do

not turn on credibility determinations. Leza v. State, 351 S.W.3d 344, 349 (Tex. Crim. App.

2011).

         The State has the burden to establish a valid waiver of Miranda rights by a preponderance

of the evidence. Joseph v. State, 309 S.W.3d 20, 24 (Tex. Crim. App. 2010). There are two

facets to any inquiry with respect to the adequacy of a purported waiver of Miranda rights: (1) the

waiver must be Avoluntary in the sense that it was the product of a free and deliberate choice rather

than intimidation, coercion, or deception@ and (2) the waiver must be made Awith a full awareness

both of the nature of the right being abandoned and the consequences of the decision to abandon

it.@ Ripkowski v. State, 61 S.W.3d 378, 384 (Tex. Crim. App. 2001). We do not consider a

waiver of a Miranda right involuntary, though, unless there is some element of police

overreaching. Colorado v. Connelly, 479 U.S. 157, 169-70 (1986); Oursbourn v. State, 259

S.W.3d 159, 170 (Tex. Crim. App. 2008). The waiver need not be express or assume a particular

form. North Carolina v. Butler, 441 U.S. 369, 373-74 (1979). Where the prosecution can show

that a Miranda warning was given and understood by the accused, his uncoerced statement




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establishes an implied waiver of his Miranda rights. Id. at 373.

       At trial, appellant agreed he speaks English, but when speaking Aabout important things,@

prefers Spanish. He indicated that when he was asked if he understood the Miranda warnings in

Spanish, he responded in the negative. Our review of the video of the oral statement indicates

otherwise.

       The video of the oral statement given by appellant to Detective Epperson shows two

detectives were present during the interview. Detective Epperson conducted the interview of

appellant in English, while Detective Miller was present for his Spanish-speaking skills. The

video shows Detective Epperson explained appellant=s Miranda rights in English.            When

appellant responded he Akinda@ understood those rights, Detective Miller read him the Miranda

warnings in Spanish. Detective Miller asked appellant whether he understood those rights in

Spanish, and appellant nodded his head affirmatively. The bulk of the remaining interview was

conducted in English by Detective Epperson and demonstrates appellant had a good working

knowledge of the English language with appellant responding to questions mostly in English.

Both detectives testified at trial that they believed appellant had a good grasp of the English

language.

       Appellant never asked the detectives to switch to Spanish, even though he knew there was

a Spanish-speaking detective in the room. Appellant turned to Detective Miller a few times

during the approximate hour-long interview and asked him to translate the occasional word or

legal concept. The fact that he did ask for assistance a few times underscores the probability he

comprehended the remainder of the interview.

       Furthermore, after appellant received his Miranda warnings and then nodded that he

understood them, Detective Epperson asked appellant if it was okay to ask him questions and told




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appellant he could ask questions, too. When Detective Epperson asked appellant if it was okay

for him to ask questions, appellant responded, Ayeah.@ During the course of the interview,

appellant never asked that counsel be present and never asked to stop the interview.

       There is no evidence, and appellant does not argue, the statement was a product of

intimidation, coercion, or deception. See Oursbourn, 259 S.W.3d at 170; Ripkowski, 61 S.W.3d

at 384. Under the totality of the circumstances, we conclude appellant waived his Miranda rights

with a full awareness both of the nature of the right being abandoned and the consequences of the

decision to abandon it. See Ripkowski, 61 S.W.3d at 384. We overrule appellant=s sole issue on

appeal and affirm the judgment of the trial court. See Leza, 351 S.W.3d at 349.




                                                     /David L. Bridges/
                                                     DAVID L. BRIDGES
                                                     JUSTICE



Do Not Publish
TEX. R. APP. P. 47
100798F.U05




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                                        S
                             Court of Appeals
                      Fifth District of Texas at Dallas

                                     JUDGMENT


MANUEL BAUTISTA, Appellant                        Appeal from the 429th Judicial District Court
                                                  of Collin County, Texas. (Tr.Ct.No.
No. 05-10-00798-CR                 V.             429-80283-09).
                                                  Opinion delivered by Justice Bridges,
THE STATE OF TEXAS, Appellee                      Justices O=Neill and Murphy.

      Based on the Court=s opinion of this date, the judgment of the trial court is AFFIRMED.




Judgment entered March 5, 2013.



                                                  /David L. Bridges/
                                                  DAVID L. BRIDGES
                                                  JUSTICE




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