COURT OF APPEALS

SECOND DISTRICT OF TEXAS

FORT WORTH

NO. 02-12-00052-CR

RAYMOND PAUL GARNER APPELLANT

V.

THE STATE OF TEXAS STATE

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FROM THE 271ST DISTRICT COURT OF WISE COUNTY

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MEMORANDUM OPINION1

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A jury convicted Appellant Raymond Paul Garner of possession of four

grams or more but less than 200 grams of methamphetamine, and, upon his 

pleas of true to the enhancement paragraphs, the trial court sentenced him to 

thirty years’ confinement. Appellant brings a single issue on appeal, arguing that 

the trial court reversibly erred by denying his motion to suppress his oral 

 1

See Tex. R. App. P. 47.4.
2

statement. Because the trial court committed no reversible error, we affirm the 

trial court’s judgment.

At the police station after his arrest, Appellant was taken into a room to be 

questioned. The following conversation took place between Appellant and the 

police officer:

Officer: I’m going to read you your rights, Raymond, since you 

are in here in custody.

Appellant: inaudible statement

Officer: I’ll read you your rights, which you may know, I’m going 

to read them to you anyway. Then me and you are 

going to talk.

You have the right to remain silent. Anything you say 

can and will be used against you in a court of law. You 

have the right to talk to a lawyer and to have him 

present while you are being questioned. If you cannot 

afford to hire a lawyer, one will be appointed to 

represent you before any questioning if you wish. And 

you can decide at any time to exercise these rights and 

not answer any questions or make any statements. Do 

you understand that?

Appellant: Yeah. (Looking around the room)

After this court abated the appeal and remanded the case to the trial court for the 

entry of findings of fact and conclusions of law, the trial court issued the 

following:

FINDINGS OF FACT

1. Appellant was arrested and charged with Possession of a 

Controlled Substance on January 8, 2011.
3

2. On January 10, 2011, while Appellant was still in custody, 

Wise County Sheriff’s Investigator, Chad Lanier, conducted a 

custodial interview with the Appellant which was both audio 

and video recorded. The recording was admitted in its entirety 

as State’s Exhibit Number 1 (hereinafter referred to as “SX 1”) 

for purposes of the hearing on the Appellant’s Motion to

Suppress.

3. SX 1 showed that prior to questioning the Appellant, 

Investigator Lanier informed Appellant he was reading 

Appellant his rights because Appellant was in custody.

4. SX 1 showed that Investigator Lanier . . . made the following

statements to the Appellant when he read the Appellant his 

rights:

a. You have the right to remain silent;

b. Anything you say can and will be used against 

you in a court of law,

c. You have the right to talk to a lawyer and have 

on[e] present while you are being questioned;

d. If you cannot afford to hire a lawyer, on[e] will be 

appointed to represent you before any 

questioning if you wish;

e. And you can decide at any time to exercise these 

rights and not answer any questions or make any 

statements.

5. SX 1 showed that at the conclusion of reading the Appellant 

his rights, Investigator Lanier asked the Appellant, “Do you 

understand that?” Appellant audibly responded on the 

recording (SX 1), “Yeah.”

6. Nothing on the recording (SX1) indicated the Appellant did not 

understand or voluntarily waive his rights before answering 

Investigator Lanier’s questions.

7. SX 1 showed that after reading the rights, Investigator Lanier 

asked the Appellant a number of questions on different 
4

subjects including the facts of the drug offense. Appellant 

answered the questions appropriately and appeared to 

understand the entire conversation.

CONCLUSIONS OF LAW

1. Article 38.22 of the Texas Code of Criminal Procedure, 

Sections 2 and 3, require that for an oral statement of an 

accused resulting from a custodial interrogation to be 

admissible, it must be electronically recorded and the following 

warning must be given to the accused:

a. He 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;

b. Any statement he makes may be used as 

evidence against him in court;

c. He has the right to have a lawyer present to 

advise him prior to and during any questioning;

d. 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

e. He has a right to terminate the interview at any 

time.

2. Article 38.22, Section 3(e)(2) provides that the accused must 

be given the warnings outlined above or “it’s fully effective 

equivalent” and that . . . prior to the statement but during the 

recording the accused knowingly, intelligently, and voluntarily 

waive the rights set out in the warning.

3. Case law confirms that the warning given need not be in the 

exact language of the statute so long as it is in substantial 

compliance with the words of the statute. A differently worded 

warning substantially complies with the required warning if it 

has the same or equivalent meaning.

4. The warning given to the Appellant by Investigator Lanier had 

the same or equivalent meaning to the warning required by 
5

Article 38.22. The first two warnings required by Article 38.22 

largely overlap and the term “court’’ as used by Investigator 

Lanier is broader than and encompasses the term “trial” which 

was omitted in Lanier’s warning and therefore did not change 

the meaning of the warning. Investigator Lanier’s statement 

that the Appellant had a right “at any time to not answer any 

questions or make any statements[]” was equivalent to the 

omitted warning that the Appellant could terminate the

interview at any time and did not change the meaning of the 

warning.

5. A waiver of rights under the oral confession statute does not 

require an “express verbal statement” that an accused waives 

those rights. The waiver may be implied through an 

(Appellant’s) silence, coupled with an understanding of his 

rights and a course of conduct indicating waiver. Where the 

prosecution shows that the warnings were given and 

understood by the accused, the accused’s uncoerced 

statement establishes an implied waiver of the right to remain 

silent. The totality of the circumstances under which Appellant 

waived his rights and gave his statement clearly show that the 

waiver was voluntarily given.

6. The Appellant’s statements in response to Investigator 

Lanier’s questions as depicted on SX1 were given after 

knowingly, intelligently, and voluntarily waiving the rights 

expressed which were equivalent in meaning to the rights

required by Article 38.22 and were therefore admissible as 

evidence. [Citations omitted.]

We review a trial court’s ruling on a motion to suppress evidence under a 

bifurcated standard of review.2

 We give almost total deference to a trial court’s 

rulings on questions of historical fact and application-of-law-to-fact questions that 

 2

Amador v. State, 221 S.W.3d 666, 673 (Tex. Crim. App. 2007); Guzman 

v. State, 955 S.W.2d 85, 89 (Tex. Crim. App. 1997).
6

turn on an evaluation of credibility and demeanor, but we review de novo 

application-of-law-to-fact questions that do not turn on credibility and demeanor.3

Article 38.22, section 3(a) of the Texas Code of Criminal Procedure sets 

the terms under which an oral statement given by a defendant may be used. 

That subsection provides that

[n]o oral . . . statement of an accused made as a result of custodial 

interrogation shall be admissible against the accused in a criminal 

proceeding unless . . . prior to the statement but during the recording 

the accused is given the warning in Subsection (a) of Section 2 . . .

and the accused knowingly, intelligently, and voluntarily waives any 

rights set out in the warning[.]4

Section 2(a) of that same article sets out the required warnings that the 

accused must receive. That subsection provides that

the accused, prior to making the statement, [must] either receive[] 

from a magistrate the warning provided in Article 15.17 of [the code 

of criminal procedure] or receive[] 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 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;

 3

Amador, 221 S.W.3d at 673; Estrada v. State, 154 S.W.3d 604, 607 (Tex. 

Crim. App. 2005); Johnson v. State, 68 S.W.3d 644, 652–53 (Tex. Crim. App. 

2002).

4

Tex. Code Crim. Proc. Ann. art. 38.22, § 3(a)(2) (West Supp. 2013).
7

(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.5

Section 3(e) provides,

The courts of this state shall strictly construe Subsection (a) of this 

section and may not interpret Subsection (a) as making admissible a 

statement unless all requirements of the subsection have been 

satisfied by the state, except that . . . the accused was given the 

warning in Subsection (a) of Section 2 above or its fully effective 

equivalent.6

In arguing that he was not properly warned and that he did not intelligently, 

knowingly, or voluntarily waive his rights, Appellant contends that from the video, 

it appears that he was very confused and that the officer was speaking very 

quickly. Appellant also argues that the warnings must strictly comply with the 

mandate of article 38.22, section 2(a) and must convey the exact meaning of the 

warnings. He relies on State v. Subke, an opinion of our sister court in Dallas.7

The Subke court held that “a warning that conveys the exact meaning of 

the statute in slightly different language is sufficient to comply with the 

requirements of the statute.”

8

 Appellant argues that the warnings actually given 

did not strictly comply with the mandate of article 38.22 and that they did not 

 5

Id. art. 38.22, § 2(a).

6

Id. art. 38.22, § 3(e)(2).

7

918 S.W.2d 11, 14 (Tex. App.—Dallas 1995, pet. ref’d) ( op. on reh’g).

8

Id.
8

contain the fully effective equivalent of the required warnings. Specifically, the 

officer did not state that Appellant had the right to terminate the interview at any 

time. Instead, Appellant was told that he could “decide at any time to exercise 

these rights and not answer any questions or make any statements.” 

Additionally, the officer never informed Appellant that “any statement he makes 

may be used against him at his trial.” Instead, the officer informed Appellant that 

any statement he made could be used against him in a “court of law.” Appellant 

argues that these differences in wording between the statutory warnings and the 

warnings actually given are substantive and that therefore no substantial 

compliance exists.

Appellant also argues that he appeared confused while he was being 

warned and that that appearance created a question of whether he understood 

the warnings as they were read to him. He argues that his responses concerning 

the warrants were barely audible and were short statements such as “yeah.” 

Appellant additionally argues that the officer did not appear to give him much of 

an option as to whether he wanted to give the statement. Instead, the officer told 

Appellant that he was giving Appellant the warnings, and then they were going to 

talk. Consequently, Appellant argues, his waiver was not knowingly or 

intelligently given. Appellant argues that his invalid waiver rendered his oral 
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statement inadmissible and that the trial court, therefore, reversibly erred by

denying his motion to suppress.9

The State argues that the record shows that the warning given to Appellant 

by the officer is the fully effective equivalent of the required warning. We agree.

The Texas Court of Criminal Appeals has held that substantial compliance 

with the required statutory warning is sufficient.10 We hold that the warning that 

Appellant could “decide at any time to exercise these rights and not answer any 

questions or make any statements” is substantially equivalent to “terminate the 

interview.”

11 An argument could be made that the warning as given is easier to 

understand than the phrase “terminate the interview.” Likewise, we hold that 

“court at law” used by the officer is substantially equivalent to “trial” in the 

statutory warning.12

It is better practice to comply with the statute exactly. The legislature has 

clearly stated the warnings required to be given and law enforcement personnel 

vary from the statutory language at their peril. The warnings actually given in this 

case, however, substantially comply with the required warnings. Nothing in the 

record shows that Appellant did not understand the warnings and did not 

 9

See State v. Dixon, 206 S.W.3d 587, 590–91 (Tex. Crim. App. 2006).

10Bible v. State, 162 S.W.3d 234, 240 (Tex. Crim. App. 2005).

11See Sosa v. State, 769 S.W.2d 909, 915–16 (Tex. Crim. App. 1989).

12See Bible, 162 S.W.3d at 240–41.
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knowingly, intelligently, and voluntarily waive his right to remain silent before 

answering the officer’s questions.

Under the facts of this case and the record before us, we hold that the trial 

court did not err by finding the warnings adequate and the waiver effective or by

denying Appellant’s motion to suppress the statement and admitting the 

statement into evidence. We overrule Appellant’s sole issue and affirm the trial 

court’s judgment.

/s/ Lee Ann Dauphinot

LEE ANN DAUPHINOT

JUSTICE

PANEL: LIVINGSTON, C.J.; DAUPHINOT and GABRIEL, JJ.

LIVINGSTON, C.J. and GABRIEL, J. concur without opinion.

DO NOT PUBLISH

Tex. R. App. P. 47.2(b)

DELIVERED: June 5, 2014