COURT OF APPEALS

EIGHTH DISTRICT OF TEXAS

EL PASO, TEXAS

BRANDON WELLS,

 Appellant,

v.

THE STATE OF TEXAS,

 Appellee.

§

§

§

§

§

 § 

No. 08-09-00110-CR

Appeal from the

399th District Court

of Bexar County, Texas

(TC# 2007CR3253)

O P I N I O N

Appellant, Brandon Wells, was convicted of murder and sentenced to fifty years’

imprisonment and a $10,000 fine. In four issues on appeal, Appellant complains of the admission

of certain evidence and the trial court’s denial of his motions for directed verdict and mistrial. We

affirm.

BACKGROUND

Sandra Bush and at times, her son, LarryDrummer III, the victim, were living with Appellant

at his grandmother’s home. On January 12, 2007, Appellant and the victim went to eat lunch with

Sandra at 12:30 p.m. The victim was very talkative during lunch and acted normal. Sandra returned

to work between 1 and 1:15 p.m. When Appellant and the victim left, Sandra saw their car stop for

five minutes and then drive off. She could not see inside the car because of the tinted windows.

Appellant and the victim were alone in the car from 1:30 p.m. until 2 p.m., when Appellant

picked up Samuel Cordier. Cordier thought the victim was asleep in the backseat as he never made

any noises. Appellant then picked up Cordier’s uncle, Anthony Sylve. All three arrived at

Appellant’s grandmother’s house around 3:45 p.m. to 4 p.m. There, Appellant asked a neighbor to
watch the victim, but when the neighbor found the victim limp and something wrong with him,

Appellant refused to give him to the neighbor and told her to leave. Appellant then took the victim

inside his grandmother’s house.

When Appellant left, the neighbor told Appellant’s grandmother that something was wrong

with the victim, and they both ran back to where Appellant placed him and discovered that he was

foaming at the mouth and had urinated on himself. They took him outside and called 911 around

4 p.m.

The paramedics dispatched to the scene found the victim clenching his jaw and posturing,

that is, his arms were flexed inward with his hands in fists, and his legs were straight out with his

feet turned inward. His condition indicated a head injury. On the Glasgow Coma Scale, the

paramedic believed the victim was a five out of fifteen, and anything less than an eight is considered

critical. Although the victim was unconscious, he was breathing on his own, and the paramedics

assisted with his breathing to reduce the risk of cardiac arrest.

A CT scan showed a severe closed head injury, “a horrible, horrible brain injury.” Dr. Dent,

the treating physician, believed that the injury occurred approximately one to two hours before the

paramedics arrived. Blood filled the spaces on both sides of the victim’s head, and the brain was so

swollen that it lost its normal structure. A CAT scan showed cellular death on both sides of the

victim’s head, which was non-survivable. And indeed, the victim died less than twenty-four hours

after arriving at the hospital.

The medical examiner found fresh bruising to the left side of the victim’s face and cheek, and

to the left eye. She also found fresh bruising to the head, which she opined was caused by the victim

being struck by something blunt or being struck against something three to four times. Dr. Dent

testified that the amount of force required to cause the injury would be a car wreck occurring at a
speed fasterthan normal highway speed. The onlywaythe victim could have received the injurywas

from massive, severe force, that a two-year-old child could not do on his own. The medical

examiner determined that the severe blow to the victim’s head caused his death. Based on witnesses’

statements, the police believed the injury occurred between 1:30 p.m., when Sandra returned to

work, and 4 p.m., when the ambulance was summoned.

Wells gave two oral statements to the police. In the first, he initially claimed that his fiveyear-old cousin hit the victim in the eye and scratched his face, causing the bruising to the face. 

Wells later alleged that when he returned Sandra to work, the victim was jumping around in the

backseat and he either hit his head on some jumper cables or against the door. He also contended

that the victim could have hit his head on the dresser by the bed. Appellant denied that he ever

struck the victim.

In the second oral statement, Appellant claimed that the injury was caused when Sandra

“whooped” the victim at lunch or when Sylve opened the car door and the victim fell partially out,

striking his head on the door panel. He insisted that he never touched the victim in any way, nor

would he ever harm him.

While in jail, Appellant met an inmate named Jose Ramirez. Although Appellant initially

told him that he was there on drug charges, he later admitted that he was there for injury to a child. 

Appellant told Ramirez that if “worse had come to worse, you know what I mean, that he would act

crazy, you know, like – like Andrea Hays [sic] or something like that for what he did or something.”

Ramirez believed that statement was a confession that he committed the crime and intended to blame

it on Sandra.

DISCUSSION

Appellant raises four issues on appeal. The first contends that the trial court abused its
discretion by admitting two video recordings of his oral statements to the detectives, the second

alleges that the trial court erred by denying his motion for directed verdict, the third complains of

the trial court’s failure to grant a mistrial, and the fourth alleges that extraneous offenses were

admitted without first having been proven beyond a reasonable doubt. After reviewing the briefs,

law, and the record, we find Appellant’s second and third issues not preserved for our review, and

no merit in his first and fourth issues.

Unpreserved Error

We address Appellant’s second and third issues first. In his second issue, Appellant contends

that the trial court erred by “denying [his] motion for an instructed verdict because the medical

evidence did not comport with the State’s allegations, making the evidence factually insufficient.”

However, appellate challenges to directed verdicts are reviewed for legal sufficiency, not factual

sufficiency. Williams v. State, 937 S.W.2d 479, 482 (Tex. Crim. App. 1996); Noyola v. State, 25

S.W.3d 18, 19 (Tex. App. – El Paso 1999, no pet.). Appellant, seemingly recognizing his fallacy,

quotes the legal-sufficiency standard; however, he also quotes the factual-sufficiency standard.

Appellant then engages in a factual-sufficiency discussion. He never provides any discussion from

a legal-sufficiency standpoint. Given the wording of Appellant’s second issue, his citations to both

legal and factual sufficiency standards of review, and his sole discussion of the factual sufficiency

of the evidence, we cannot determine if Appellant is challenging the directed verdict or the factual

sufficiency of the evidence to support his conviction. In short, Appellant’s second issue is

multifarious, and we decline to address it. See Russell v. State, 598 S.W.2d 238, 245 (Tex. Crim.

App.), cert. denied, 449 U.S. 1003, 101 S.Ct. 544, 66 L.Ed.2d 300 (1980); Taylor v. State, 190

S.W.3d 758, 764 (Tex. App. – Corpus Christi 2006), rev’d on other grounds, 233 S.W.3d 356 (Tex.

Crim. App. 2007); Parra v. State, 935 S.W.2d 862, 875 (Tex. App. – Texarkana 1996, pet. ref’d)
(cases declining to address multifarious points of error).

In his third issue, Appellant contends that the trial court erred by overruling his motion for

mistrial, claiming that the mistrial was warranted when Detective Damiani informed the jury that he

confessed to an inmate. Specifically, Appellant claims that Detective Damiani was lying when he

made the complained-of statement. However, at trial, Appellant’s sole objection to the statement

was that the inmate had not yet testified. Appellant never raised his appellate complaint to the trial

court, that is, that Detective Damiani committed perjury. Because Appellant’s complaint on appeal

does not comport with his objection at trial, we find his third issue not preserved for our review. See

Gallo v. State, 239 S.W.3d 757, 767-68 (Tex. Crim. App. 2007); Sarringar v. State, Nos. 2-02-288-

CR, 2-02-289-CR, 2003 WL 21404819, at *1 (Tex. App. – Fort Worth Jun. 19, 2003, pet. ref’d)

(mem. op., not designated for publication) (cases declining to address trial court’s failure to grant

a mistrial when appellant’s complaint on appeal differed from his trial objection).

Moreover, we find Appellant’s second and third issues inadequately briefed. In his second

issue, Appellant merely sets out the legal-sufficiency standard for reviewing directed verdicts but

then fails to provide any supporting argument explaining why the evidence was legally insufficient

and the directed verdict should have been granted; rather, he solely discusses whether the evidence

was factually sufficient to support his conviction. But as noted above, appellate challenges to

directed verdicts are reviewed for legal sufficiency, not factual sufficiency. Williams, 937 S.W.2d

at 482; Noyola, 25 S.W.3d at 19. Because Appellant has failed to provide any supporting argument

or analysis discussing the legal sufficiency of the evidence, we find Appellant’s second issue to be

inadequately briefed. See Narvaiz v. State, 840 S.W.2d 415, 432 (Tex. Crim. App. 1992); Foster

v. State, 101 S.W.3d 490, 499 (Tex. App. – Houston [1st Dist.] 2002, no pet.) (cases concluding

issue inadequately briefed when appellant offered no argument for the issue raised).
Similarly, in his third issue, Appellant sets out the applicable standard of review for mistrials

and cites to case law addressing perjured testimony. However, Appellant never engages in any

analysis, discussion, or argument in support of the cases he cites, explaining how they apply to the

facts in his case. Merely setting out a general legal principle with supporting case law is not

sufficient to adequately brief a point of error. Rather, Appellant bears the burden of providing a

supporting argument, analyzing the cases cited and applying those cases to the facts at hand. See

TEX.R. APP. P. 38.1(i); Rocha v. State, 16 S.W.3d 1, 20 (Tex. Crim. App. 2000). We will not make

his arguments for him. Wyatt v. State, 23 S.W.3d 18, 23 n.5 (Tex. Crim. App. 2000). Because

Appellant has not graced us with any argument, we conclude his second issue is inadequately

briefed, as well. See Wood v. State, 18 S.W.3d 642, 650-51 (Tex. Crim. App. 2000); McDuff v.

State, 939 S.W.2d 607, 613 (Tex. Crim. App.), cert. denied, 522 U.S. 844, 118 S.Ct. 125, 139

L.Ed.2d 75 (1997); Turner v. State, 4 S.W.3d 74, 80-81 (Tex. App. – Waco 1999, no pet.) (cases

concluding appellant waived issue by failing to adequately develop his argument).

Having determined Appellant’s second and third issues are not preserved for our review, we

overrule the same.

Videotape Recordings of Statements

We now turn to Appellant’s first issue, which contends that the trial court abused its

discretion by failing to suppress his videotaped statements. According to Appellant, the statements

lacked the requisite statutory warnings. We disagree.

Article 38.22 proscribes the admissibility of oral statements made during custodial

interrogation unless (1) those statements were recorded and (2) prior to making the statements but

during the recording, the accused was warned of his rights and knowingly, intelligently, and

voluntarily waived those rights. See TEX. CODE CRIM. PROC. ANN. art. 38.22, § 3 (Vernon 2005). 
Those warnings include that:

(1) [the accused] has the right to remain silent and not make any statement at all and

that any statement he makes may be used against him at his trial;

(2) any statement he makes 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 him prior to and during any questioning; and

(5) he has the right to terminate the interview at any time[.]

Id. at 38.22, § 2 (Vernon 2005).

We have reviewed both videotaped statements, and both tapes reflect that the detectives duly

warned Appellant of his right to remain silent, that any statement made may be used as evidence

against him in court, of his right to have a lawyer present, to employ a lawyer, or to have a lawyer

appointed, and of his right to terminate the interview at any time. Because all requisite warnings

1

appear on the videotape, Appellant has not shown that the statements fail to meet the admissibility

requirements of Article 38.22.

Nevertheless, Appellant asserts that the statute imposes an additional duty on the police to

explicitly ask the accused whether he knowingly, voluntarily, and intelligently waived those rights. 

However, after Appellant filed his brief, the Court of Criminal Appeals reiterated “‘that neither a

written nor an oral express waiver is required”’ before a statement is admissible under the mandates

of article 38.22. See Joseph v. State, 309 S.W.3d 20, 24 (Tex. Crim. App. 2010) (quoting Watson

We pause to note that Appellant was not arrested until after he gave the first oral statement. Thus, article

1

38.22 would not apply to the first statement as it was not the result of custodial interrogation. See TEX. CODE CRIM.

PROC. ANN. art. 38.22, § 3; Herrera v. State, 241 S.W.3d 520, 526 (Tex. Crim. App. 2007). However, the State did

not argue that Appellant was not in custody during the first statement at trial, nor does it argue that proposition on

appeal; rather, the State assumes that if he was in custody, there was no violation. We agree.
v. State, 762 S.W.2d 591, 601 (Tex. Crim. App. 1988)); Barefield v. State, 784 S.W.2d 38, 40-41

(Tex. Crim. App. 1989) (noting that the oral confession statute does not require an “express verbal

statement from an accused that he waives his rights prior to giving the statement”), overruled on

other grounds, Zimmerman v. State, 860 S.W.2d. 89, 94 (Tex. Crim. App. 1993); State v. Oliver, 29

S.W.3d 190, 192 (Tex. App. – San Antonio 2000, pet. ref’d) (noting that there is no “additional

language . . . required before a trial court could infer the defendant had waived his rights pursuant

to art. 38.22”). Rather, that waiver may simply be “‘inferred from the actions and words of the

person interrogated.’” Joseph, 309 S.W.3d at 24-25 (quotingNorth Carolina v. Butler, 441 U.S. 369,

373, 99 S.Ct. 1755, 60 L.Ed.2d 286 (1979)). But that waiver must still be knowingly, intelligently,

and voluntarily made. Joseph, 309 S.W.3d at 24.

In evaluating whether a waiver is knowingly, intelligently, and voluntarilymade, we employ

a two-part test, asking: (1) whether the relinquishment of the right was voluntary by determining

whetherit the product of a free and deliberate choice rather than intimidation, coercion, or deception;

and (2) whetherthe waiver was made with full awareness of the nature of the rights being abandoned

and the consequences of the decision to abandon it. Joseph, 309 S.W.3d at 25 (citing Moran v.

Burbine, 475 U.S. 412, 421, 106 S.Ct. 1135, 89 L.Ed.2d 410 (1986)). “Only if the ‘totality of the

circumstances surrounding the interrogation’ reveal both an uncoerced choice and the requisite level

of comprehension may a court properly conclude that the Miranda rights have been waived.” 

Moran, 475 U.S. at 421. In reviewing the totality of the circumstance, we may consider the

defendant’s background, experience, and conduct. Joseph, 309 S.W.3d at 25 (citingFare v. Michael

C., 442 U.S. 707, 725, 99 S.Ct. 2560, 61 L.Ed.2d 197 (1979)).

The totality of the circumstances surrounding the interrogations show Appellant’s waiver,

in both instances, was voluntary. Immediately after being warned by the detective that he had the
right to remain silent and that he did not have to make any statement to anyone, Appellant willingly

participated in two interrogations, the first lasted one hour, and the second lasted twenty-five

minutes. Neither recording reflects that Appellant ever asked that the interrogations cease. Further,

the record does not show anyevidence of intimidation or coercion, that is, that the detectives resorted

to physical or psychological pressure to elicit statements, or make any promises that could have

possibly jeopardized the voluntariness of Appellant’s statement. The parties remained calm

throughout the entire interrogation process, and Appellant did not budge from his story that he never

touched the victim. See Joseph, 309 S.W.3d at 25-26 (finding voluntary statement under similar

circumstances).

Turning to the awareness prong, we also find that the totality of the circumstances 

surrounding the interrogations show Appellant’s waiver was made with full awareness of both the

nature of the rights being abandoned and the consequences of the decision to abandon them. In the

first interview, the detectives gave all the required warnings mandated by article 38.22, including

that Appellant did not have to say anything, and asked Appellant if he understood those rights. 

Appellant answered affirmatively and signed a document, stating that he understood those rights. 

Appellant then freely answered the questions posed by the detectives. Similarly, in the second

interview, the detective gave the required warnings and asked if Appellant understood those rights. 

Again, Appellant answered affirmativelyand freelyanswered the detective’s questions. As the Court

of Criminal Appeals noted in Joseph, “[t]he warnings read to Appellant made him fully aware of the

rights set forth in Miranda and Article 38.22, as well as the consequences of abandoning those

rights.” Joseph, 309 S.W.3d at 27. By indicating his understanding of the rights and then freely

answering the detectives questions without ever asking the interviews to cease, Appellant’s conduct

undoubtedly demonstrated his awareness of his rights and knowing waiver of those rights. See
Gately v. State, No.11-08-00157 -CR, — S.W.3d —, 2010 WL1999684, at *3 (Tex. App. – Eastland

May 20, 2010, no pet. h.) (not yet reported) (“Although appellant never expressly waived his rights,

appellant willingly participated in the interview. Based on the totality of the circumstances, a waiver

can clearly be inferred from appellant’s words and actions. The recorded interview establishes that

appellant knowingly, intelligently, and voluntarily waived his rights.”).

Because the recorded statements contained the requisite warnings, and because Appellant

knowingly, intelligently, and voluntarily waived those rights, his recorded oral statements were

admissible. Issue One is overruled.

Unadjudicated Extraneous Offenses

Appellant’s fourth and final issue contests the admissibility of two unadjudicated extraneous

offenses at the punishment phase of the trial. The first occurred on July 3, 2006, when an officer

learned from a confidential informant and another arrestee that Appellant was using a .45 handgun

and SKS rifle to rob drug dealers in the area. The officer then drove to a specified location and

observed a vehicle described by the informant. A search of the vehicle revealed no weapons;

however, a consented-to search of the apartment resulted in the seizure of marijuana, baggies of

cocaine and heroin packaged for sale, the .45 handgun, and the SKS rifle, all of which Appellant

claimed were his.

The second extraneous offense occurred on July 21, 2007. There, the officers observed an

unlit license plate on a vehicle, and after activating the patrol car’s emergency lights, the vehicle

entered a parking lot and accelerated, jumped curbs, and ran over cones to evade the police. When

the vehicle stopped, its six occupants, including Appellant, fled on foot. The officers observed

Appellant throw a .223 caliber assault rifle underneath the vehicle before running away, although

he quickly surrendered soon thereafter. The judge of the 226th District Court later ordered the
weapon released to David Dilley, Appellant’s defense attorney in the case.

According to Appellant, both extraneous offenses were inadmissible as the State failed to

establish his guilt to either beyond a reasonable doubt. For support, Appellant notes that the State

only charged him with possession of marijuana for the first offense, not unlawfully carrying of a

weapon, nor could the State prove the second offense without the weapon. We disagree.

Section 3 of article 37.07 governs the admissibility of evidence at punishment. Haley v.

State, 173 S.W.3d 510, 513 (Tex. Crim. App. 2005). Under that section, evidence may be offered

as to any matters the court deems relevant including evidence of an extraneous crime or bad act that

is shown beyond a reasonable doubt to have been committed by the defendant or for which he could

be held criminally responsible. TEX. CODE CRIM. PROC. ANN. art. 37.07, § 3(a)(1) (Vernon Supp.

2009). Whether an accused has actually been charged with or finally convicted of a crime does not

matter. Id. Nor does it matter that the act was not actually a criminal offense or that the elements

of a crime necessary for a finding of guilt cannot be established. Haley, 173 S.W.3d at 514-15. 

Rather, it simply must be shown beyond a reasonable doubt that the accused was involved in the act

itself. Id. As the Court of Criminal Appeals noted, the question at punishment is “not whether the

defendant has committed a crime, but instead what sentence should be assessed.” Id. at 515.

Here, Appellant does not dispute that he was involved in the complained-of unadjudicated

acts or that evidence of those acts was not relevant. Instead, he asserts the State failed to prove

beyond a reasonable doubt the elements of the potential criminal offenses. However, the State was

not required to make that proof. Id. at 514-15. Through its witnesses, the State met its burden of

proving Appellant was involved in the two unadjudicated acts. This was all the State was required

2

Appellant notes that in the first act, the officers did not arrest him for unlawfully carrying a weapon.

2

However, the weapons were certainly same transaction, contextual evidence of whether Appellant could be attributed

to the bad acts of aggravated robbery, possession of marijuana, or possession with intent to deliver cocaine or heroin.
to do. Id.; Coy v. State, No. 2-09-113-CR, 2010 WL 522649, at *3 (Tex. App. – Fort Worth Feb.

11, 2010, pet. ref’d) (mem. op., not designated for publication); Meyer v. State, No. 05-05-00900-

CR, 2007 WL 2052125, at *8 (Tex. App. – Dallas July 19, 2007, pet. ref’d) (op., not designated for

publication). Thus, we find Appellant’s complaint that the evidence of the unadjudicated acts was

inadmissible is without merit and overrule his fourth issue.

CONCLUSION

Having overruled Appellant’s issues, we affirm the trial court’s judgment.

GUADALUPE RIVERA, Justice

July 30, 2010

Before Chew, C.J., McClure, and Rivera, JJ.

(Do Not Publish)

See TEX. PENAL CODE ANN. § 29.03(a)(2) (Vernon 2003) (aggravated robbery); TEX. HEALTH & SAFETY CODE ANN.

§ 481.121 (Vernon 2010) (possession of marijuana); TEX. HEALTH & SAFETY CODE ANN. § 481.112 (Vernon 2010)

(possession with intent to deliver); Wilson v. State, 132 S.W.3d 695, 698 (Tex. App. – Amarillo 2004, pet. ref’d.)

(deeming as “rather settled” the nexus between the drug trade and weapons); see also Rogers v. State, 853 S.W.2d

29, 33 (Tex. Crim. App. 1993) (providing that same transaction, contextual evidence is admissible). In the second

act, Appellant contends that the State cannot prove the offense without the weapon. But the State is not required to

produce a weapon used in an offense to convict an accused, and in any case, whether the State could produce the

weapon does not mean that bad act was not attributable to Appellant. See Haley, 173 S.W.3d at 514-15 (State only

has to prove bad act was attributable to accused); Gomez v. State, 685 S.W.2d 333, 336 (Tex. Crim. App. 1985)

(State not required to produce the weapon to sustain conviction).