### TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

NO. 03
- 18
- 00654
- CR

Trevor Nelson Thompson, Appellant

v. The State of Texas, Appellee

FROM THE 277TH DISTRICT COURT OF WILLIAMSON COUNTY NO. 16
- 2501
- K26, THE HONORABLE STACEY MATHEWS, JUDGE PRESIDI N G

M E M O R A N D U M O P I N I O N
Trevor Nelson Thompson pleaded guilty to the first

- degree felony offense of

a ggravated a ssault caus ing s erious b odily i njury

- f amily v iolence , involving t he s hooting of h is father. See Tex. Penal Code § 22.02(b ) (1)

. T he di strict co urt convicted Thompson of that offense and , after a four

- day hearing, assessed punishment at thirty

- five years’ imprisonment.
See id. § 12.3 2

. On appeal, Thompson contends that his sentence is grossly disproportionate to the crime co mm i tted , that “ the evidence is l egally insuf ficient to support the sentence , ” that the distr ict court erred by denying his motion to suppress evidence of his confession , and that the district cou rt erred by not entering a separate order containing its writ te n findings of fact. We will affirm the dis trict court ’ s judgment of conviction

.2 BACKGROUND T hompson ’ s indict ment charged him with aggravated assault of a family member with a firearm

. See Tex. Pe nal Code § 22.02(b)(1)

. Thom pson filed a motion to supp ress his confession to the lead detective, C riminal Investigations C o mmander J e reme Brinkmann of the Williams on County Sheriff ’ s Office, approximately tw e nty

- four hours after the shooting

. Thompson ’ s motion to s uppress raised the issue of his intoxi cati on from alcohol and narcotics consumption

. During a hearing on pretrial motions , the district court carried th e mo tion to
suppress to trial

. At a nother pretrial hearing, T hompson entered an open plea of guilty t o the charged offense . The di strict cou rt ac c epted the plea , “ called off the jury for [the] next week , ” requested preparation of a presentence investigation report , and set the case for punishment

. 1

Before the punishment phase of trial began, the district court held a hearing on Thompson ’ s motio n to suppress

. Commander Brinkmann was the only witness to testi fy du ring th e hearing. He testified that he had been a po lice officer for twenty

- one years , that he was present when Thomp son was arrested at an apartment at approximately 1:30 i n the aftern o on on
t he day a f

ter the shooting, and that he did not start interviewing Tho m pson until “ several hours, like five hou rs h a d passed , maybe even longer ” after his arrest at the apartment . Commander Brinkmann also testified that bef ore he conducted th e inte r view , he read Thompson his Miranda rights “ of f a card provided by the [distr i ct attorney] ’ s office, ” as per Commander B rin kmann ’ s usual practic e . See Miranda v. Arizona , 384 U.S. 436, 444, 478

- 79 (1966); see also Tex. Code Crim. Proc. art. 38.22. Thomps o n “ absolutely ” appeared to und e rstand each of the rights about

1 Be cause t he part ies are familiar with the facts of this case and becau se Thompson waived the right to appeal his guilt and prese nt s no challen ge t o t he su fficiency of the eviden ce supporting his conv i ction , we do not recite the f acts of the offe nse in gr eat detail. S ee Tex. R. App. P. 47.1

.3

which he had b een advised

. Commander Brinkmann denied t hat Thom pson seem ed to be “ under the influence ” or “ too intoxicated to move forward with the questions. ” Commande r Brinkmann also denie d that Thomp son fell asleep or that Thompson requested to “ stop and have a la w yer present ” at any time during the almost

- tw o - hour

- long in terview

. Commander Brinkmann did not have to repeat any of his questions to assist Thom pson ’ s understanding of the m , a n d he had no

co ncer ns that Thompson was not understand ing what he was being a s ked

.

Commander Brinkmann testified that Th ompson was initially “ vague ” and

“ mini mi zed ” his involve ment in the shooting, but that he “ finally fully confessed to what actually h a pp ened ” and du ring that time he did “ not at all ” seem intoxicated

. During c r oss examination, Commander Brinkmann ackno wle dged that before his interview one of Thompson ’ s co - defend ant s t old him “ about the excessive amounts of Xana x and alcohol that Mr.
T h o mpson co ns umed

. ” Ho w ever, Thompson told Commander Brinkmann that he had consumed only “ one Xana x and two half cup s of vodka ” after the shoo tin g. Commander Brinkmann recalled that as Thompson was being booked sho rtly a fter making his statement ab out the

o ffense, Thompson said that “ he wished he was high. ”

A fter hearing Commander Brinkmann ’ s testi m ony and counse l ’ s arguments , t h e district cou rt denied the motio n to suppress :
[ The Court ] : I am going to find that Commander Brinkmann was a credible witn e ss and based on his experience and his evaluation of Mr. Thompson at the time that he spoke with h im, he did

— I ’ m going to find he did [M] i rand i ze hi m. I don ’ t know the credibility of the information he received from the other witnesses. I don ’ t know at t his point who ’ s telling the truth about what [Thompson] ’ s consumed or not consumed. There had be e n a significant amount of time that had elap s e d , perhaps not enough time for all the drugs to get out of his system, but I ’ m not sure that that ’ s really the l egal requirement. And I think that through Commander Brinkmann ’ s testimony, he indicates that he didn ’ t have trouble communicating, and he di d b e lieve that Mr. Thompson understood his4

Miranda warnings

. So at this time, I am going to deny the motion to s u ppress. However, I say that [,] if more information comes forward that changes

— or I start watching t h e video [of the confession] and I think it ’ s cl e ar to me that he ’ s

— since it ’ s going to be me that ’ s watching it, that it ’ s clear that he is not

—he ’ s perhap s not competent to voluntarily waive, then I can reconsider that ruling, but for right now, I ’ m goin g to deny your motion to suppress. [Defense cou n sel]: Thank you, Your Honor.

T he case proceeded t o a four

- day punishment hearing to the bench

. S evera l witness es testif

ied , including a forensic psychologist who stated that , based on his e valuation of Thompson , he would be surprised if Thompson “shot a t anyone else” or “kills someone

. ” However, the psychologist also testified, “I wouldn’t want [Thompson ] to live with his dad

a gain.” The district court also heard from Thompson’s grandmother ’ s “ primary caretaker ” from Alabama, wh o had known Thom pson ’ s family for fifteen years and stated that if he had the opportunity to assist Thompson, he would do so. T h e care taker stated that because he had multip le bedrooms in his home and ran a company, Thompson wo u ld have a place to stay and emplo yment in A labama if he w ere placed on probation.

Addit i onally , t he district court heard testimony from the victim, T hom p s o n ’ s fath er , about the day that he ar rived ho me from work and w ent insid e his house where he was

s hot by Tho m pson . Thompson ’ s fat her testifi ed that he ran to a n eighbor ’ s house , and while he

was bang ing on the front door and screaming for help, Thompson sh ot him a gain. Thomp son ’ s father was hospitalized for ten months after the shooting , underwent seventeen su r geries (with

more required in th e future ) , and was discharged to a rehabilitation center to lear n to walk again

. He testified that he did not wa n t t o parti cipate in determin ing whether Thom pson would get “ six months ” or “ 40 years

. ” He stated that h e “ abs ol utely ” feared Th ompson .5 The court also heard testi mony from Commander Brinkmann about Thompson ’ s planning of the shooting. “ E x traction Repor t s ” sh owing three text messages and some of the web history from Thompson ’ s phone on the day before and t he day of the shooting were admitted i nto evidence

. A text message sent the day before the shooting stated, “ Come o ver [,] you might witness me kill my dad tho [ .] ” Two text messages after the shooting stated, “ I ’ m probably about to g o to prison plz call me , ” and l ater, “ Shot my dad twice and now on the run [.] ” The web history fo r Thompson ’ s phone on the day before the shooting included these search es :

• “ [W]i ll hi tting someone with a bat kill them[ ?] ”

• “ [ H ] ow is it possible to kill someone with a hammer so eas ily ? ”

• “ Most effective way to kill someone at home ”

• “ Top 10 Most Atrocious Ways to Ki ll a Per son ”

• “ [H]ow to slit someone ’ s throat fast ” The next day , the re we re we b searches on Thomps on ’ s phone f or local news stories about the shooting , along with questions ab out attempted m urder charge s an d pri son sentences in Texas.

T he State did not offer Thompson’s confession into ev idence

. But defense counsel d id q uesti on Commander Brinkmann about Thompson ’ s confession during cross examination at the punishment heari ng before the court :
Q. [Defense counsel]: And even though

— He originally

— Trevor Thompson, when you spoke with him, offered you an excuse for why h e ha d sho t his father. He never denied that he shot his father, correct?
A. [ Commander Brinkmann ]: Correct

. Q. [Defense counsel]: And he, in fact, told you he was

— The last hour I think or half

- hour, you said you felt like you got a candid conversation from him. He told you he thought that was what he wanted, but immediately reg retted it?6

A. [ Commander Brin kma nn ]: Yes, ma ’ am. Q. [Defense counsel]: And when you

— You flat

- out asked him why the second shot; do you recall that?
A. [C ommander Brinkmann ] : Yes , ma ’ a m. Q. [Defense counsel]: And he was

— And he paused. He was at a loss for an answer and just said, “ Because that was the plan ” ?
A

. [ Commander Brinkmann ]: Correct. Q. [Defense counsel]: Do you recall that?
A. [ Commander Brinkmann ]: Yes, m a ’ am.

Comman der Brinkmann also testified that Thompson discuss ed the specific location in the house for the p l a nn ed shooting , noting that “ sh ooting him on the tile . . . would be easier to clean up[.] ”

A fter hearing th e evidence, t he dist rict court fou n d tha t the evidence support ed Thompson ’ s plea of guilt , convicted T hompson of the charged offense , and found that a deadly weapon was used in the commission of th e offense

. The district court then assessed Thompson ’ s punishment at thirty

- fiv e years ’ impr i sonme nt with credit for time served

. Thomp son filed a

m otion for new tr ial that was overruled by operat ion of la w . Th is appeal followed.

DISCUSSION E ighth Amendment d isproportiona te - se ntence is sue not preserved

In his first is sue , Thompson conte nds t h at hi s sen tenc e is gross ly dis proportionate
to t he crime comm itted

. T he Eighth A mendment to the U nited States Constitut ion provides tha t “[e] xcessive bail shall not be required, nor e xcessive fines imposed, nor cr uel and unusual
pun ishment in flicted .” U. S. Co nst. amend . VIII, see id. amend. XIV (incorporating this7

constitutional protection to make it applicable to each state) ; Robins on v. Cali fornia , 370 U. S. 660, 675 (1962) ; M

eadoux v. State , 325 S.W.3d 1 89, 193 (Tex. Crim . A pp. 2010)

.

“ A sentencing is sue m ay b e preserved by objec ting at the pu nishment heari ng, or when the sentenc e is pronounced. ” Burt v. State , 396 S.W.3d 5 74, 577 (Tex. Cr im. App. 2013)

. F a i lure to comp lai n a bout an alleged ly disproportionate sentence in the trial court forfeits the

error on ap peal

. See, e.g. , Rhoades v. Sta te , 934 S.W.2d 113 , 120 (Tex. Crim. A p p. 1996) (concl uding th at defendant failed to pre sent compl ai nt that his se ntence violated Te xas Co nstitution ’ s protection against cruel or unu sua l punishmen t) ; C urry v. State , 910 S.W.2 d 490, 497 (Tex. C rim. App. 1995 ) ( concluding that Eighth Amendment c o m pl aints are fo rfeited if not raised in trial cou rt); William s v. State , 19 1 S.W. 3d 242, 262 (Te x. App.

— Austin 2006 , no pet. ) (noti n g that “ [c] lai ms of cruel and unusual punis hment must be presented in a timely manner ” or

are “ waive d ” ); Fulle r v. State , N o. 0 3

- 18

- 00709

- CR, 2020 Tex. App. LEXIS 4773, at *17 (Tex. App

. — Austin June 25, 2020 , no pet. h. ) (mem. op. , not designated for publication) ( concluding that defen dant ’ s c ompla int ab out his sentence was forfeited by his failure to raise that complaint when he was sentenced du ring punishm ent phase of trial ); see also Tex. R. Ap p. P. 33.1(a) (addressing preserva tion of error g en era lly )

.

Her e, as the State co rrectly notes, Thomps on fai led to present any co m plaint abo ut his sentence during the punis hment phase of trial when he was s entence d

. A c cor dingly ,
we conclude t hat th is is sue was n ot preserved fo r our review

. See Tex. R. Ap p . P . 33.1(a) ; Rhoades , 934 S.W.2d at 120 ; Curry , 9 10 S.W .2 d at 497 ; Williams , 191 S.W. 3d at 262 ; Fulle r , 2020 Tex. App. LEXIS 4773, at *17

. We overrule T hompson ’ s fi rst issue.8

Sufficiency o f evidence to support sen tence

In his second issue, Thompson c hall enges the legal sufficiency of th e evidence

s u ppo rt i ng his s entence , contending that the length of his sentence “ seem s un fair ” given the forensic p syc holog i st ’ s t estimony that he would be surprised if Thompson “ shot at anyone else ”

or “ kill s someone , ” 2 and the testimony from Thompson ’ s gr andmother ’ s c aretak er that
Th ompson would hav e a place to stay and employ ment in A labam a if Thomps o n were to be

r elea se d on probation

. However, as the Co urt of Crimina l Appeals has explained,

[T]he t ask of setti ng a particu lar length of confinement withi n the prescri bed ra nge of pun ishment is essentially a “normativ e” judgment. Aside from a few specific instances wher e the range of punishment depends upo n the determin ation of discrete facts, “[d]ecid ing what pun ishment to a ssess is a normative process, n ot int rinsica lly fa ctbound.” Indeed, we have described the sen tencer’s discretion to impose any punishment within th e pres cribed range to be essentially “unfettered.” Subject only to a very limited, “exceedingly rare,” and somewhat amorphous Eighth Amend ment g ross - di spropo rtionality review, a punishment that falls w ithin the legislati vely prescribed range, and that is ba sed upon the sentencer’s informed n ormative judgm ent, is unassailable on appeal

. Ex parte Ch avez , 213 S. W.3d 320, 323

– 24 (Tex. Crim. Ap p. 200 6) (int ernal citations omitted) (emphas e s added) ; Shaw v. State , No. 03

- 19

- 0 0435

- CR, 2020 Tex. App. LEXIS 6402, a t *5 (Tex. App.

— Austin Aug. 13, 202 0 , no pet. h. ) (mem. op

. , not designated for publication)

. Thompson ’s sentences are not su bject to an evidentiary suffici ency review. More over, Thompson acknowledge s th at gen eral l y a sentence will not b e disturbed whe n , a s he r e, it is within the statu to ri ly prescri be d range. See Nunez v. Stat e , 565 S.W.2d 536, 538 (Tex. Crim. App. 1978)

.

2 However , the psycholo gist a lso t estified that he “ wouldn’t want [Thompson] t o live with his dad again ” and a cknowledged that he did not conduct any type of fu ture

- risk assessment on Thompson in this case.9 Further, th is case is no t one in which no evidenc e supported the punishment decision , thereby implicating Th ompson ’ s due course of law protections

. Se e Ja ckson v. Sta te , 680 S.W.2d 809, 814 (Tex. Cri m. App. 1984); see also Tex. Const. art. I, § 19 (due course of law provision in Texas C onstit ution) ; Tex. Code Crim. Proc. art. 1.04 (addre ssing due course of law) ; Shaw , 2020 Tex. Ap p. LEXIS 6402, at *5

. “ [ A ] sentence t h a t is within the legislatively prescribed range, based up on the sentencer ’ s inf ormed normative judgm ent, and in a ccordanc e with due process of law ‘ is not subject to a sufficiency of the evidence review on appeal. ’ ” Parker v. State , 462 S. W. 3d 559, 566 ( T e x. App.

— Houston [14th Dist.] 2015 , no pet. ) ( qu o ting
Jarvis v. State , 31 5 S.W. 3d 158, 162 (Tex. App

. — Beaumont 20 10, no pe t.) ); Sh aw , 2020 Tex. App. LEXIS 6402, at *5

.

H ere, the record reflects that Thompson ’s thi rty

- five

- year sentence is wi thin the
pe r missibl e statutory range for th e offense of a ggravated a ssault caus ing s erious b odily i njury

f amily v iolence

. S ee Tex. Pen al C ode § 22.02(b)(1) ( defining offense of aggravated assault and providing , in relevant part , that offense is first

- d egr ee felony i f ac tor uses deadly weapon during commission of that assault and causes serious bodily injury to per son who is f a mily member ) ;

s ee id. § 12.3 2 ( e stablis hing punishment range of five to ninety

- nine years or life impris onment for first

- degree f

elo ny )

. Th us, th at sen t en ce is not subject to appellate review for evidentiary suffi ciency

. See Parker , 462 S.W. 3d at 566 ; Ja rvis , 3 15 S .W. 3d at 162 ; see als o E x parte Chavez , 213 S.W.3d at 3 23

- 24 ; Garci a , 316 S.W.2 d at 735 ; Sh aw , 2020 Tex. App . LEX IS 64 02,
at * 6

. Mo reover, due

- course - of

- law protections were not implicated here because t he district
court was presen ted with subs tanti al ev i dence on which it could hav e relied when assessing punishment , including tes t im ony from the f ather

- victim a bout T homps o n ’ s shooting him , his lengthy hospitalization and recovery process , and his fear of Th ompson ; and Commander10

Brink mann ’ s testim ony about h is investigation of the offense and the evidence showing Thompson ’ s p lanning of the shooting beforehand

. C f. J acks on , 680 S.W.2 d at 814 ; Sh aw , 2020 Tex. App. L EXIS 6402, at * 6

. A ccordingly, w e overrule Thompson ’ s second issue.

De n ial of m otio n to suppre ss

Thompson ’ s third issue contains two subparts . F irst , he contends that the district

cou rt erre d by den yin g hi s m otion to su ppres s e vidence of his confession to police that “ may not have been v oluntary because of [ his ] intoxica tion. ” Alter natively, T homps o n contends that t he district court erred by not enter ing a separate ord er containing it s written findings as to t he volunta riness of his co nfession

.

We review a trial court ’ s ruling on a motion to suppress evid ence u nder an abuse of disc retion stan dard

. Arguellez v. St ate , 409 S.W.3d 657, 662 (Tex. Crim. App. 2013). This requires view ing the record “ i n th e li ght most favor able to the trial court ’ s determination ” and reversing th at determination “ only if it is arbitrary, unr easonable, or ‘ outside t he zone of

reas onable disagreement. ’ ” State v. Story , 445 S.W.3d 729, 732 ( Tex. Crim. Ap p. 2 014) (quoting Sta t e v . Dixon , 206 S .W.3d 587, 590 (Tex. Crim. App. 2006)). We must uphold the trial court ’ s ruling on the motion to suppre ss if it is s upported by the record and corre ct under any theory of law

. Id. We consider only the evidence adduced at the sup pr essio n he a ring. 3 Arguel lez , 409 S.W.3d at 662

. “[T]he trial court is the ‘sole and exclusive trier of fact and judge
of the c redibility of the witne ss es ’ and the evi dence presented at a hearing on a motion to suppress, particu larly where the motion is based on the voluntariness of a confession.” Delao v.

3 H oweve r, when parties r e litigate a suppression issue during a trial on the merits, we consider all evidence, from the suppression hearing and the trial, in reviewing the trial court’s decision. Turrubiate v. State , 399 S.W.3d 147, 150

- 51 (Tex. Crim. App. 2013); G utierrez v. State , 221 S.W.3d 680, 687 (Tex. Crim. App. 2007).11

State , 235 S.W.3d 235, 238 (Tex. Crim. App. 2007) (quoting Green v. State , 934 S.W.2d 9 2, 98 (Tex. Crim. App. 1996 ) )

. T hus, we afford “ g reat deference ” to the tr i a l c ourt ’ s r uling admit ting or exclud ing evide n ce of a defendant ’ s co nfession, and that r uling will “ be overturned on appeal only where a fla grant abuse of discretion is shown. ” I d.
D eterm ining the v olu ntarin ess of a confession requires an examination of the
tota lity of circumst ances surrounding i ts acquisition. Wyatt v. State , 23 S.W.3d 18, 23 (Tex. Crim. App. 2000)

. Intoxication is a relevant factor but does no t render a de fendant ’ s con fession involu ntary per se. Jones v. State , 944 S.W.2d 642, 651 (T ex. Crim . App. 1996) ; Pa olilla v.
State , 3 4 2 S .W.3d 783, 792 (Tex. App.

— Houston [14th Dist.] May 26, 2011, no pet. ) ; Saldana v.
State , 59 S.W.3d 703, 712 (Tex. App

. — Austin 2001 , pet. ref ’ d ) ( “ Even if we assume that [defendant] was intoxicated when he was arrested and interrogated , that fact alone i s n ot sufficient to render his confession involuntary. ” ). Rather, the relevant inquiry is “ w hether the defendant ’ s into xication r end er ed him inca pable of makin g an i ndependent, informed decision to confess

. ” Jones , 944 S.W.2d at 651; s ee Paolilla , 342 S. W.3 d at 792 ( “ Whe n the record reflects evidence of narcotics, medications, or other mind

- altering agents, the question b ecomes whethe r those intox icants prevent ed the defendant from making an informed and independent deci sion to waive he r rights

. ” ) ; Saldan a , 59 S.W.3d at 7 12 ( “ The central question is the extent to which [defendant] was deprived of his faculties due to the i ntoxication. ” (quoting Nic hols v. State , 754
S .W.2d 185, 190 (Tex. Crim. App. 1988) ) )

.

Here, we note that t he State did not offer Thompson ’s confession into evidence during the punishment hearing

. Thus, the record presented to us on appeal is the same a s it would ha ve been if Th ompson had not made his confession , or if his motion to supp ress his confession had been gr anted

. See , e.g. , Severs v. State , 8 7 S.W.3d 752, 754 (Tex. App.

—12

Texarkana 2002, no pet.) ( noting that a lthough t rial court denied defenda nt ’s motion t o suppress hi s confession, prosecution did not offer his confe ssion or any videotaped interviews int o

ev idence during its case

- in

- chief , d efe ndant was respo nsible for intro duc ing th at evidence ). The State contends that under the doctrine of “ curative admi ssibility, ” T h ompson forfeited his complaint about the district court ’ s admission of the evidence by que stioning Co mmander Brinkmann about th e confession during the punishment hearing

. See Maynard v. State , 685
S.W. 2d 60, 65 (Tex. Crim. App. 1985 ) ( noti n g that under d octrine of curative admissibility,

“ when the defendant offers the same evidence to which he earlier objected, he is not in a pos ition to complain on appeal ” ); Aguilar v. S tate , 9 80 S.W.2d 824, 826 (Tex. App.

— San Antonio 1998,
no p et.) ( “ Under the doctrine of curative admissibility, the admission of improper evidence cannot be asserted as grounds for reversal on appeal if the def end ant offers evidence of substantially the same facts. ” ) . In reply, T hom pson contends t hat def ense coun sel ’ s questio ning about th e confession was only an attempt to explain the evidence, which does not constitute a waive r of the complaint on the suppress ion ruling. See Smith v. S tate , 957 S.W.2d 881, 883 (Tex. App.

— Texarkana 1997, no pet.) ( “ A defendant do es not waive his right to challenge the admissibility of evidence if he sought to meet, destroy, or explain it by the introduction of rebutting evidenc e. ” ); Rodrigu ez v. State , 919 S.W.2d 136, 139 (Tex. App.

— San Antonio 1995, no pet.) (noting exception to “ curative adm issibility ” t hat “ arises where a defendant testifies to refute, deny or impeach the evidence or testimon y objected to ” but stating that “ w aiv er would still result in such circumstances if the defendant confirms the truth of such facts or evide nce in attemp ting to creat e a defense based on those facts, unless the impact of the evidence impelled the defen dant to testify ” ).13 But even if Thomps on did not forfeit his complaint , we con clude that he would not prevail on this record . T he district cou rt heard test imony during the suppression hearing from Commander Brinkman n

— a n officer wit h more than t wo decades of l aw - enforc ement experience who m the c ourt fo und credible

— that the interview with Thompson began at least five hours a fter h is arrest ; that h e provided Th ompson with M iranda warnings recited from a card provided by the district attorney ’ s office ; and that Th ompson appeared to underst and the ri ghts

re ad to him

. Commander Brinkmann further testified that Thompson did not show signs of intoxicati on , did not f

all asleep du ring an almost

- two

- hour

- long interview , and sta ted after the interview that “ he wished he w as high

. ” (Emphasis added.)

Th e evidence at the supp ressi on hearing

— viewed in the li ght mo st favo rable to the district court’s ruling and with proper deference to the court’s deter minations of historical fact and of witness credibility and demeanor

— supports the district c ourt ’ s fi ndings that Thomps on receiv ed th e proper statutory and Mira nda wa rnings ; that Thompson was not intoxi cated and u nderst ood th o se warnings ; and thus , that he provided his confession v oluntarily

. O n this record, Thompson failed to show that the dist rict cour t ’ s denial of the motion to supp re ss evidence of the confes sion w as a flagrant abuse of discretion , see Delao , 2 35 S.W.3d at 238 , or

was a r bitrary , unreasonable, or outside the zone of reasonable disagreement , s ee Story , 445 S.W.3d at 732

. Separ ate order with fact finding s unn ec essary

Alternatively, Thomps on contends that after his pretrial motion to suppress w as denied , th e district cou rt erre d by not enter ing a se parate order containing its written findings of fact

. Thomp son points to artic le 38.22 , section 6 of the Code of Criminal Procedure , whic h14

requ ir es a trial court to make fact findings when the volunt ariness of de fendant’s stat ement i s

c hallenged, and if the court determines that the statement was made voluntarily and is admissible, further requires that the c ourt en ter an order stating its conclu sion along with specific fact finding s for its conclusio n, “which ord er shall be fi led amo ng the papers of the cause

. ” Tex. Code Crim. Proc . art. 38.22(6) ; Oursbourn v. State , 259 S.W.3d 15 9 , 174

- 75 (Tex. Crim. App. 2008) ( quoting article 38.22 , se ction 6 in con sidering when defendant is entitled to jury instr uction on vol untariness of his st atement )

. Thompson contends specifically that “ reading the findings into the record ” is insufficient and that “ [n]o Findings of Fact w ere entered in this case. ”

H o wever, the record s hows that the district court recited i ts findings i nto the report er ’ s r ecord in open court and in the presence of Thompso n ’ s counsel , wh o did not object to th e provision of the court ’ s findings in th is ma nn er . See Busby v. State , 253 S. W.3d 661, 670 (Tex. Crim. App. 2008) ( noting that trial c ourt used sam e procedure fo r issu a nce of its fact findings ). The Court of Criminal Appeals has approved of t hi s procedure , con clud in g that a t r i a l

c o u r t c o m p l i e s w i t h t h e s t a t u t o r y r e q u i r e m e n t s t o f i l e a r t i c l e 3 8

. 2 2 f

i n d i n g s a s t o t h e

v o l u n t a r i n e s s o f a d e f

e n d a n t ’ s c o n f

e s sion “ whe n it dictates its findings and conclusions to the court reporter, and they a re transcribed and made a part of the stateme nt of facts [rep o rter ’ s record 4 ] , filed with the district clerk and made a p art of th e appellate record

. ” M urphy v. Stat e , 112 S.W. 3d 592, 60 1

- 02 (Tex. Crim. App. 2003) ; see Busby , 253 S.W.3d at 670 (quoting Murphy ) ; Vasquez v. State , 179 S. W.3d 646, 6 54

- 55 (Tex. App.

— Austin 2 005 ) ( holding that trial

4 The “ statement of facts ” is now called the reporter ’ s record. See T ex . R. A pp . P. 34 cmt. to 1997 amen dment ( “ Clerk ’ s record is su bstituted for transcript, and reporter ’ s recor d is substi tu ted for statement of facts throughout th e rule s . ” ) ; see Nejnaoui v. State , 44 S.W.3d 111, 115 (Te x. App.

— Houston [14th Dist.] 2001 , pet. ref ’ d ) ( noting change in referen ces to these portions of app ellate record ) ; see also Waite s v. State , No. 06

- 09

- 00096

- C R, 2010 Tex. App. LEXIS 4583, at *4 n.2 (Tex. A pp.

— Texarkana June 18, 2010 , no pet. ) (mem. op., n ot designated for publication) ( same )

.15

court complied with requirements of article 38.22, section 6 by reading it s findings int o record ) , aff ’ d , 225 S.W.3d 541 (Tex. Crim. App. 2007) )

. Fo r the reasons stated above , we overrule both

s ubpa rts of Thompson’s third and final issue

.
CONCLUSION W e affirm the district court ’ s judgmen t of conviction

.

___________________ _______________________ Jeff Rose, Chief Ju stice Before Chief Justice Rose, J ustices Triana and S mith
Affi r med Filed: Septemb e r 30, 2020
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