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

NO. 03
- 18
- 00689
- CR

Kenneth McMichael, Appellant

v. The State of Texas, Appellee

FROM THE 207TH DISTR ICT COURT OF COMAL C OUNTY NO. CR2016
- 623, THE HONORABLE DIB WALDRI P, JUDGE PRESIDING

M E M O R A N D U M O P I N I O N
Kenneth McMichael was charged with aggravated robbery. See Tex. Penal Code §§ 29.02, .03. The indictment included two enhancement paragraphs alleging that McMichael was previously convicted of the felony offenses of attempted burglary of a habitation and possession of a controlled substance. See id. § 12.42. At the end of the guilt

- or - innocence phase, the jury found McMichael guilty of the charged offense . McMichael elected to have the district court assess his punishment, and the district court found the enhancement allegations to be true and sentenced him to fifty

- two years’ imprisonment. On appeal, McMichael asserts that there was reversible error in the jury charge. We will affirm the district court’s judgment of convi ction.

BACKGROUND McMichael was charged with committing aggravated robbery at a tattoo parlor in New Braunfels , Texas . The indictment alleged that the following three individuals were also involved in the offense: Olanda Taylor, Robert Lionel Ruffi ns, and Anthony Ruffins. The2

alleged victim in this case was Sarah Zamora, who worked at the tattoo parlor along with her husband Anthony Zamora. 1 At the time of the offense, Sarah and Anthony were in the shop along with their customer Tony Hernandez. D urin g the guilt

- or - innocence phase , the following witnesses testified : Sarah , Hernandez, Officer Richard Groff, and Officer John Mahoney. In addition, audio and visual recordings were admitted into evidence and played for the jury

.

The first recording s were from security cameras located inside the tattoo shop

. The footage from the recordings show ed four men with masks on their faces enter ing the shop at night and carrying multiple handguns . Although their faces were covered on the recordings, law

enf orcemen t officials testified at trial that they were able to link the individuals on the recordings to McMichael and the three other men listed in the indictment through various investigative methods, including tracking the location of the property that wa s stole n from the tattoo shop , reviewing the security footage for identifying features , and examining the social

- media profile of one of the suspects to identify other potential suspects

. Regarding McMichael, police officers testified that they were able to iden tify him through the methods discussed above, including observing on the recording a tattoo of a cross on his forearm that they were able to match to other known photos of him

.

One recording showed one of the men kicking Sarah in the face before holding

a gun to her head and then directing her to a cash register and to a safe. Another recording capture d one of the men stomp ing on the back of Hernandez’s head after he complied with the man’s command to lie on the floor and showed several of the m en repeat edly kicking Hernandez in the head, hitting hi m in the head with their pistols, and dragging him around the room. Regarding the individual later identified as McMichael, the recordings show ed him carrying a

1 Because Sarah and Anthony Zamora share the same surname, we will refer to t he m by their first names.3

bag, grabbing a small safe located in t he shop , h olding one of the guns for some period of time , pointing the gun at Hernandez, and kicking Hernandez in the head

.

In addition to the recordings d iscussed above, two other recordings were admitted into evidence and played for the jury. The State offe red the first, which documented an interview of McMichael by New Braunfels police officers regarding this case. In the interview , one of the officers ask ed whether McMichael had been read his rights during a prior interview by another law

- enforceme nt agency t h at occurred in the same room and ended a few minutes before the interview by the New Braunfels police officers began

. McMichael confirm ed that the officers from the prior interview read him his rights. In response to questioning by the New Braunfels
p ol ice officers , McMichael admit ted that he went into the tattoo shop with the three men mentioned above, that one of the owner’s cousins encouraged them to rob the tattoo shop, that they planned to get cash from the cash register and from a saf e that they ha d been told was in a closet, and that some of the other men assaulted Hernandez. In addition, McMichael admitted that still photos taken from the surveillance footage showed that he was one of the individuals present in the tattoo shop on th e night in q ue stion

.

The second recording was offered by McMichael and capture d the prior interview discussed above in which members of the United States Marshals Task Force questioned McMichael about a crime that was unrelated to the robbery at issue in this case

. I n that interview , one of the officers read McMichael the statutory warnings contained in article 38.22 of the Code of Criminal Procedure, and McMichael state d that he underst o od those rights and then answer ed the officers’ questions. When the officers f in ished their interview, McMichael was taken outside for a smoke break lasting approximately twelve minutes before he return ed to the same room where the New Braunfels police officers interviewed him

.4 After both sides rested, the district cou rt prepared a ju ry charge before both sides presented their closing arguments. Among other directives, the charge contained the following instructions:

IV. No oral statement made by an accused as a result of custodial interrogation may be considered as e vidence aga in st him in any criminal proceeding unless the jury believes beyond a reasonable doubt that the statement was voluntarily made. In m aking the determination regarding “ voluntariness, ” you are instructed that the law provides that: (a) the accused , prior to ma ki ng the statement, received from the person to whom the statement is made a warning that: (1) he has the right to remain silent and not make any statement at all and that any statement he m akes may be used against him at his trial; (2) any st ate m ent he ma ke s may be used as evidence against him in court; (3) he has the right to have a lawyer present to advise him prior to and during any questioning; (4) if he is unable to employ a lawyer, he has the right to have a lawyer appointed to advise hi m prior to an d during any questioning; and (5) he has the right to terminate the interview at any time; and (b) the accused, prior to and during the making of the statement, knowingly, intelligently, and voluntarily waived the rights set out in the warning prescribed b y Subsection (a) of this section. Unless you find beyond a reasonable doubt that the Defendant ’ s oral statement was voluntarily made, you are instructed that you shall not consider such statement for any purpose. If you do not find beyond a r easonable d ou bt that the Defendant ’ s oral statement was voluntarily made, you are further instructed that you may not consider any evidence obtained as a result thereof against the Defendant for any purpose.5 During deliberations, the jury submitted a quest ion asking if “ the Miranda Rights need to be read to a defendant for each interview of a law enforcement agent under the same arrest? If answer is yes, need to view” the recording of McMichael being questioned by the
New Braunfels police officers. Follow ing that re qu es t , the district court prepared a supplemental instruction that the district court stated would have been “appropriate for the original charge
had it been included

. ” Most of the supplemental instruction repeated directives from the jury char ge, includi ng d irectives explaining that the jury was the exclusive judge of the facts, that the j ury was bound by the law given by the district court, and that the jury could not consider McMichael’s statement to the police unless they first determined be yond a reas on ab le doubt that the statement was voluntarily given. In addition, the supplemental instruction contained the following new directives:

Article 38.22 of the Texas Code of Criminal Procedure, Section 7 instructs that:

“ When the issue [of volun tariness of a s tatement] is raised by the evidence, the trial judge shall appropriately instruct the jury, generally, on the law pertaining to such statement. ” In Section IV. of the CHARGE OF THE COURT, you were instructed, generally, on the law pertaining to factors y ou may consider regarding your determination of the voluntariness of any such statement. Generally, a voluntary statement is one that is th e product of a free and deliberate choice rather than intimidation, coercion, or deception. As well, wa iver of one ’ s p rivilege against self

- incrimination must be made with full awareness of both the nature of the right being abandoned and the consequences of the decision to abandon it. Only if the totality of the circumstances reveals, beyond a reasonable doubt, both a n un - coerced choice and a sufficient level of comprehension may a statement be determined to be voluntary.
McMichael objected to the submission of the supplemental jury instruction, but the district court overruled the objection. After fin ishing thei r de liberations , the jury found McMichael guilty. McMichael appeals the district court’s judgment of conviction.6 DISCUSSION In his issue on appeal, McMichael asserts that the district “court’s supplemental jury instruction constitutes revers ible error.” Se e Daniell v. State , 848 S.W.2d 145, 147 (Tex. Crim. App. 1993) (explaining that if “ trial judge responds substantively to a jury question during deliberations, that communication essentially amounts to an additional or supplemental jury ins truction ” ) ; se e also Tex. Code Crim. Proc. art. 36.16 (allowing additional jury instructions to be given at “the request of the jury”). When asserting that there was jury

- charge error in this case, McMichael presents several sets of arguments regarding th e supplement al i nstruction.

I n his first set of arguments , McMichael contends that the district court’s supplemental instruction does not comply with article 38.22 of the Code of Criminal Procedure. Specifically, McMichael notes that article 38.22 pro vides that if t he e vidence raises a question about the voluntariness of a statement by an accused, “the trial judge shall appropriately
instruct the jury, generally , on the law pertaining to such statement.” See Tex. Code Crim. Proc. art. 38.22, § 7 (emph asis added) ; se e al so Moon v. State , 607 S.W.2d 569, 57 2 (Tex. Crim. App. 1980) (explaining that sections six and seven both “only speak to the issue of voluntariness”)

. In light of this statutory language, McMichael contends that the original instruction in the jury cha rg e pertaining to the voluntariness of his oral statement was the “general” instruction contemplated by article 38.22 and that the supplemental instruction is a specific instruction that was not authorized by the statute.

As support, McMi chael points to Me ndoz a v. State , in which the C ourt of
C riminal A ppeals upheld the trial court’s decision not to include in the charge three of the four instructions on voluntariness submitted by the defendant. See 88 S.W.3d 236, 237

- 38 (Tex. Crim. App. 2002). When discu ss in g the propriety of the exclusion of the first two instructions in7

Mendoza , the court explained that they “recited specific facts and called attention to a specific piece of evidence” and, therefore, could be considered improper “comme nt[s] on the weigh t of the evidence.” Id. at 240.

We do not believe that the analysis from Mendoza compels a conclusion that the supplemental instruction here was erroneous. As an initial matter, we note that the C ourt of
C riminal A ppeals in Mendoza c oncluded that the tri al c ourt properly included the defendant’s first instruction on voluntariness, which listed the requirements from article 38.22 but also included language similar to the portion of the supplemental instruction at issue in this case.
S ee id. at 237 n.1, 240

. I n particular, the first instruction from Mendoza stated the jury could

not consider the statement by the accused “ unless you believe from the evidence beyond a reasonable doubt that the alleged confession or statement introduced i nto evidence was free ly

a nd voluntarily made by the defendant without compulsion or persuasion, or if you have a reasonable doubt thereof, you shall not consider such alleged statement or confession for any purpose nor any evidence obtained as a result the reof .” Id. at 237 n. 1.

M ore importantly , we note that unlike the instruction in Mendoza , t he supplemental instruction in this case did not ask the jury to consider any specific fact pattern or pieces of evidence when assessing whether McMichael’s statem ent was voluntarily mad e an d instead provided general instructions to aid the jury in determining the voluntariness of the

statement. Cf. Oursbourn v. State , 259 S.W.3d 159, 173

- 74 (Tex. Crim. App. 2008) (distinguishing general instructions available unde r section s 6 and 7 of a rt ic le 38.22 from specific “fact

- based” instructions under article 38.23 asking jury to first determine whether specific event occurred before deciding whether defendant’s statement may be considered). Further, the supplemental char ge addressed concerns o ut li ned in article 38.21, which specifies that a suspect’s statement8

may only be used “if it appears that the same was freely and voluntarily made without compulsion or persuasion

. ” S ee Tex. Code Crim. Proc. art

. 38.21 . The C ourt o f C riminal A ppeals has ex pl ained that the concerns set out in article 38.21 fall within the purview of section 6 of article 38.22. Cf. Oursbourn , 259 S.W.3d at 172. In addition, the language used in the supplemental instruction is a correct statement of the law. In fact, whe n pr eparing the supplemental instruction, the district court quoted language from a case by the Supreme Court that the Court of Criminal Appeals has also relied on. See Lez a v. State , 351 S.W.3d 344, 349 (Tex. Crim. App. 2011) (quoti ng Colorado v. Spring , 4 79 U.S. 564, 573 (1987)) ; see also Joseph
v. State , 309 S.W.3d 20, 25 (Tex. Crim. App. 2010) (relying on same language)

.

For these reasons , we reject McMichael’s assertion that the supplemental instruction was an impermissibly spe cific instruction that d id n ot comply with article 38.22 and instead conclude that the instruction was a general voluntariness instruction that the district court added in its discretion to provide additional assistance to the jury. Cf. Mendoza , 88 S.W.3d at 240 (noting that tri al c ourts have discretion to determine “whether, in a given case, . . . additional guidance” beyond instructions found in article 38.22 should be given regarding when statement is voluntarily made ) ; Daniell , 848 S.W.2d at 147 (notin g that if instruction co ul d have been given as part of original charge, it may be given as supplemental instruction)

.

In his next set of arguments, McMichael contends that even if the supplemental instruction was a general one as contemplated by article 38.22, the instruction was s ti ll erroneous because it “was an impermissible comment on the weight of the evidence effectively negating [his] defensive strategy.” More specifically, McMichael urges that the original charge instructed the jury that when mak ing a decision regarding t he v oluntariness of his statement, they were to consider whether “prior to making the statement” he “received from the person to whom the9

statement is made” the statutory warnings set out in article 38.22. Further, McMichael poin ts to the evidence on the re co rding demonstrating that none of the New Braunfels police officers read McMichael the article 38.22 warnings.

In light of the preceding, McMichael urges that the supplemental instruction “supplanted the language of the origin al charge that contained th e ve ry unambiguous statement that the 38.22 warnings must be given by the person who takes the statement,” ordered the jury to assume that the requirement from 38.22 had been complied with, and made an improper comment on the wei ght of the evidence. In ot he r words, McMichael insists that the supplemental instruction directed the jury “to disregard the original charge,” to decide whether the statement was voluntary exclusively under the non

- statutory definition in the supplemental instruction rather than th e st atutory directives from article 38.22, and to reject his “defensive theory that
the New Braunfels Police should have read . . . the 38.22 warnings” before questioning him. Moreover, McMichael contends that the supplemental i nstruction contained “powerf ul w ords” like “intimidation, coercion, and deception” and that the inclusion of those words could have improperly “excite[d] the passion of the jury” and made the jury angry at him because there was no evidence “of any egregiou s conduct by law enforcement .” Cf. Bartlett v. State , 270 S.W.3d 147, 150 (Tex. Crim. App. 2008) (stating that “[a] s a general rule, a trial court shall deliver to the jury a written charge distinctly setting forth the law applicable to the case; it shou ld not express any opinion as t o the weight of the evidence, sum up the testimony, discuss the facts, or use any argument in its charge calculated to arouse the sympathy or excite the passions of the jury ”). 2

2 The requirement regarding the need for a statement to be made to the person who provided the statutory warnings is found in section 2 of article 38.22. See Tex. Code Crim. Proc. art. 38.22, § 2. That provision applies to writt en s tatements, sets out the various Miranda

- like statutory warnings that must have been read to an individual before his written statement may be admitted, and specifically states that before the statement can be admitted, “the accused, prior to10 W e disagree with McMichael’s construction of t he supplemental instruction

. No th ing in the language of the additional instruction directed the jury to disregard the language of the original charge pertaining to the voluntariness of McMichael’s statement. On the contrary, the supplemental instruction referenced the original charge a nd emphasized that the jury was to use the “factors” set out in the charge when making its “ determination of the voluntariness of” McMichael’s statement. Moreover, as set out above, the supplemental instruction addressed th e voluntary requirements set o ut i n article 38.21 requiring that a statement be “freely and voluntarily made without compulsion or persuasion,” see Tex. Code Crim. Proc. art. 38.21, and used language similar to that endorsed by the C ourt of C riminal A ppeal s , see Rocha v. State , 16 S.W. 3d 1 , 20 (Tex. Crim. App. 2000) (noting that jury charge provided instruction that “[a] statement of an accused may be used against him if it appears that the same was freely and voluntarily made without compulsion or persuasi on” and that instruction track ed l anguage of statute) ; see also Roberson v. State , 113 S.W.3d 381, 385 (Tex. App.

— Fort Worth 2003, pet. ref’d) (determining that trial court did not err by preparing “ supplemental charge that contained making the s ta tement,” must have received those warnings “ from the person to whom the statement is made. ” Id. (emphasis added). For oral statements, section 3 of article 38.22 sets out the requirements that must have bee n met before those types of statements may b e ad mitted. See id. art. 38.22, § 3. Although section 3 incorporates the requirement that the warning contemplated by section 2 be given, the Court of Criminal Appeals has expressly held “that the language in Ar ticle 38.22 § 2(a), requiring warnings to be g iv en by the person ‘to whom the statement is made,’ does not apply to oral statements but applies only to written statements.” See Dowthitt v. State , 931 S.W.2d 244, 258 (Tex. Crim. App. 1996); see id. (explai ning that “[w]hile § 3 requires that the war ni ng s contained in § 2(a) be given, it does not require that all provisions of § 2(a) be met”); see also Villarreal v. State , 61 S.W.3d 673, 679 (Tex. App.

— Corpus Christi 2001, pet. ref’d) (explaining that portio n of section 2 requiring that warnings be gi ve n by person ultimately receiving statement “does not apply to oral statements, but applies only to written statements”). Because the statement at issue was an oral recorded statement given to the police, the s ame person requirement from section 2 did not a pp ly to this case even though it was included in the jury charge. Accordingly, McMichael was given the benefit of an instruction and a defensive issue that he was not entitled to . However, given our ultimate resolution that the inclusion of the supplem en ta l instruction did not constitute jury

- charge error, we need not further address this issue.11

a proper statement on the law of burglary” in respon se t o jury note)

. Furthermore, we can see nothing in the general language of the supplemental instruction that persuades us that the words chosen could have improperly excite d the passion of the jury against McMichael in the circumstances present here

.

In h is brief, McMichael refers to Kirsch v. State , 357 S.W.3d 645 (Tex. Crim. App. 2012), as support for his assertion that the supplemental instruction was an impermissible comment on the evidence. In that case, the Court o f Criminal Appeals noted that a t ri al court’s inclusion of a definition for an undefined statutory term “in a jury charge may constitute an improper comment on the weight of the evidence.” Id. at 651. Further, the court concluded that the trial court’s d efinition of the term “‘operate’ as ‘ to exert personal effort to cause the vehicle to function’” was error because the definition “impermissibly guided” the jury’s “understanding of the term” rather than allowing the jury “to assign that term” its common m eaning. Id. at 652. In addition, t he court explained that “the definition emphasizes evidence tending to show ‘personal effort’ toward causing the vehicle to function over evidence that would tend to
show ‘merely preparatory attempts to start the motorcy cle’” and, thereby, improperly foc us ed “the jury on the type of evidence that would support a finding that appellant was operating his motorcycle.” Id.

Although we recognize the concerns identified by the Court of Criminal Appeals
in Kirsch , we do not b elieve that the supplemental instruc ti on explaining that a statement is voluntary when it “is the product of free and deliberate choice rather than intimidation, coercion[,] or deception” and that a waiver of the right against self

- incrimination is effecti ve if it is “made with full awarene ss o f both the nature of the right being abandoned and the consequences of the decision to abandon it” carried the same risk of improperly focusing the jury12

on particular types of evidence to the exclusion of other eviden ce pertaining to whether McMichael’ s st atement was voluntarily given as set out under article 38.22, in part, because the supplemental instructions reminded the jury to consider the article 38.22 factors listed in the original jury charge when deciding whe ther his statement was voluntary an d wh ether the jury could consider it when deciding his guilt. Cf. Bartlett v. State , 270 S.W.3d 147, 149, 152, 154 (Tex. Crim. App. 2008) (determining that instruction to jury that State may introduce evidence “that defe ndant was offered and refused a bre at h test” and that jury could consider defendant’s refusal to provide breath sample when “deciding the question of guilt or innocence” constituted “an improper comment on the weight of the evidence”).

In his final set o f arguments regarding the alleged jur y - ch arge error, McMichael contends that the district court’s supplemental instruction constituted jury

- charge error because it did not specifically answer the jury’s legal question. In particular McMichael notes that t he jury asked whether the Miranda war ni ng s “need to be read to a defendant for each interview of a law enforcement agent under the same arrest” and then asked to view the recording of McMichael’s interview if the answer to its question was “yes.” Because the district court ’s supplemental ins tr uc tion did not mention the recording and because the recording was not delivered to the jury , McMichael contends that the district court made an improper comment on the weight of the evidence and essentially instructe d the jury to disregard his defensive t he ory that the New Braunfels police officers were required to but did not read the article 38.22 warnings before questioning him.

However, as set out above, the supplemental instruction made no comment of any kind r egarding the recording of McMichael’s i nt erview or on any other evidence presented at trial and did not answer the jury’s question regarding whether Miranda warnings needed to be13

provided by the New Braunfels police department before they questioned him. In essence, the district court instru ct ed the jury to consider the law that had already been given to them in the original charge when making their determination along with the general directives on voluntary statements included in the supplemental instruc tion . Accordingly, we conclude that th e district court’s response did not constitute an improper comment on the weight of any evidence.

For all the reasons previously given, we conclude that the inclusion of the supplemental instruction did not constitu te jury

- charge error and, accordingly, ov er rule McMichael’s issue on appeal. See Price v. State , 457 S.W.3d 437, 440 (Tex. Crim. App. 2015) (explaining that appellate courts need only address issue of harm if they first determine that there was error in j ury charge)

.

CONCLUSION

Having overr ul ed McMichael’s issue on appeal, we affirm the district court’s judgment of conviction.

__________________________________________ Thomas J

. Baker, Justice Before Justices Goodwin, Baker, and Kelly Affirmed Filed: August 29, 2019 Do Not Publish