Opinion issued February 6, 2024

In The

Court of Appeals 

For The

First District of Texas 

————————————

NO. 01-22-00398-CR

———————————

DENNIS GALLIEN, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 339th District Court

Harris County, Texas

Trial Court Case No. 1541083

MEMORANDUM OPINION

After providing a recorded statement to police, appellant Dennis Gallien was 

indicted for the offense of aggravated robbery,

1

enhanced by two prior felony 

convictions. Gallien moved to suppress the recorded statement, but the trial court 

1 See TEX. PENAL CODE § 29.03.
2

denied the motion. A jury found Gallien guilty of aggravated robbery but could not 

agree on a sentence, resulting in a mistrial for the punishment phase. Gallien then

filed a motion for mistrial and a motion for new trial for the guilt-innocence phase.

The trial court granted a mistrial for that phase as well, and the State appealed. We

concluded that the order granting the mistrial for the guilt-innocence phase was 

functionally indistinguishable from an order granting a motion for new trial. See 

State v. Gallien, 631 S.W.3d 885, 891 (Tex. App.—Houston [1st Dist.] 2021, pet. 

ref’d). We held that the trial court had erred in granting the guilt-innocence mistrial, 

reversed the order, and remanded the case for a new punishment hearing. Id. at 898. 

On remand, Gallien entered into a plea agreement regarding punishment and was 

sentenced to 17 years in prison. The trial court certified Gallien’s right to appeal only 

the “guilt/innocence phase.” Gallien now appeals his conviction.

In his sole appellate issue, Gallien challenges the trial court’s denial of his 

motion to suppress his recorded statement. Because we hold that the trial court did 

not abuse its discretion in denying the motion, we affirm the judgment of conviction.

Background

On January 19, 2017, S. Shawon was working as a cashier at a Houston gas 

station. Around 10:00 p.m., a man entered the gas station wielding a knife and

demanding that Shawon open the cash register. When Shawon complied, the man 

grabbed the cash register drawer containing around $700. Shawon jumped over the 
3

counter and ran outside. The man fled the gas station with the drawer, and Shawon 

called the Houston Police Department (HPD). 

The following day, the manager of the gas station provided HPD with 

surveillance video showing the robbery. Using the video, HPD developed Gallien as 

a suspect and obtained a warrant to arrest him for the offense of aggravated robbery. 

After he was arrested, Gallien was placed in jail. 

The day after his arrest, Gallien was taken from jail to the police station where 

he was interviewed by HPD Detective W. West. The interview was conducted in an 

interview room and was video recorded. After introducing himself, Detective West 

read Gallien his rights as set out in Code of Criminal Procedure article 38.22(a).

2

Detective West asked Gallien, “With those rights being read to you, [are you]

3

willing to speak to me about this incident I’m out here to investigate?” Gallien 

responded, “Yeah.” Detective West then stated that the incident was the robbery at 

the gas station.

During the interview, Detective West showed Gallien a still photograph of the 

robbery suspect taken from the gas station’s surveillance video. Detective West told 

Gallien that he knew that Gallien was the person in the photograph. Gallien denied 

2 See TEX. CODE CRIM. PROC. art. 38.22, § 2(a).

3

It is unclear from the video’s audio whether Detective West said “are you” or “you” 

at this point in the question. 
4

that he was the person in the photo, and he corrected certain statements by Detective 

West about facts the detective claimed to have learned about him. 

Detective West told Gallien that, at the end of the surveillance video, it 

appeared that, after Shawon jumped over the counter and ran out of view, Gallien 

had pursued Shawon chasing him with the knife. Detective West told Gallien that he 

knew that Gallien had not pursued Shawon but had instead fled the scene. Detective 

West told Gallien that the interview was his opportunity to explain what had 

happened at the gas station and to show a “human side.” Gallien then admitted that 

he had committed the aggravated robbery. He said that he was on “Kush” at the time

of the robbery and had needed money for his drug habit.

After the jury was selected, but before trial began, Gallien orally moved to 

suppress his recorded statement. The trial court heard the motion outside the jury’s 

presence. At the hearing, Detective West was called to testify and Gallien’s videorecorded statement, about 17 minutes in length, was admitted into evidence.4

Gallien acknowledged that Detective West had read him his rights before he 

gave his statement but argued that his statement should be suppressed because he 

was never asked if he understood or waived his rights. Gallien also asserted that 

Detective West coerced him into “say[ing] what happened.” In response, the State 

4 The record reflects that portions of the interview were redacted from the video to 

remove statements about Gallien’s prior convictions and extraneous offenses. 

During trial, Detective West testified that the interview had lasted 20 to 30 minutes. 
5

pointed out that a defendant need not expressly waive his rights when the waiver can 

be implied from the circumstances. The State asserted that, “from watching the video 

and [Gallien’s] demeanor in the video and his behavior,” it “appear[ed] that he 

clearly understood his rights and waived them by speaking to [Detective West].” 

At the end of the hearing, the trial court remarked that it “guess[ed] it’s a 

tactical decision sometimes with police officers talking to people as to whether or 

not to stop and clearly articulate you’re waiving your right, [but] that doesn’t 

preclude a statement from being voluntary and not coerced . . . .” The trial court then 

found “[no] coercion at all in [Detective West’s] conversation with [Gallien] and 

[in] how [Detective West] approached the subject, how he developed the subject, 

[and] how he interacted with [Gallien].” The trial court also found that Gallien had 

been informed of his rights and understood them. And the trial court found that,

“from the totality of the circumstances,” Gallien had “knowingly and voluntarily 

waived those rights and engaged in [a] conversation” with Detective West. The court

found “that it was truly a voluntary statement in terms of the overall conversation 

with the officer.” The trial court noted that, even when Detective West revealed that 

he “had the goods on him,” Gallien did not ask to speak to an attorney nor did he

indicate that he did not want to continue the conversation. The trial court denied the 

motion to suppress after determining that Gallien had waived his rights “knowingly 

and intelligently and voluntarily.”
6

Denial of Motion to Suppress

In his sole issue, Gallien challenges the denial of his motion to suppress.

A. Standard of Review

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

standard of review. Lerma v. State, 543 S.W.3d 184, 189–90 (Tex. Crim. App. 

2018). We review the trial court’s factual findings for an abuse of discretion but 

review the trial court’s application of the law to the facts de novo. Turrubiate v. 

State, 399 S.W.3d 147, 150 (Tex. Crim. App. 2013). We give deference to the trial 

court’s factual determinations because the trial court is the sole trier of fact and judge 

of witness credibility and the weight to be given their testimony. Lerma, 543 S.W.3d

at 190; Valtierra v. State, 310 S.W.3d 442, 447 (Tex. Crim. App. 2010). Our 

deferential review also applies to the trial court’s conclusions regarding mixed 

questions of law and fact that turn on credibility or demeanor. State v. Ortiz, 382 

S.W.3d 367, 372 (Tex. Crim. App. 2012). We review de novo mixed questions of 

law and fact that do not turn on credibility and demeanor, as well as purely legal 

questions. State v. Woodard, 341 S.W.3d 404, 410 (Tex. Crim. App. 2011).

If the trial court makes express factual findings, we view the evidence in the 

light most favorable to the ruling and determine whether the evidence supports the 

findings. Valtierra, 310 S.W.3d at 447; see State v. Cullen, 195 S.W.3d 696, 699 

(Tex. Crim. App. 2006) (recognizing that findings and conclusions may be “stated 
7

on the record at the hearing”). “The evidence and all reasonable inferences are 

viewed in the light most favorable to the trial court’s ruling, and the trial court’s 

ruling must be upheld if it is reasonably supported by the record and is correct under 

a theory of law applicable to the case.” State v. Espinosa, 666 S.W.3d 659, 667 (Tex. 

Crim. App. 2023).

B. Applicable Law

Code of Criminal Procedure article 38.21 provides that “[a] statement of an 

accused may be used in evidence against him if it appears that the same was freely 

and voluntarily made without compulsion or persuasion.” TEX. CODE CRIM. PROC.

art. 38.21. An accused’s statement made during a custodial interview will not be 

admissible unless a law enforcement officer advised an accused of his rights before 

the interview begins. See TEX. CODE CRIM. PROC. art. 38.22, §§ 2(a), 3(a)(2); 

Miranda v. Arizona, 384 U.S. 436, 444 (1966). Article 38.22 requires that an accused 

be informed 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;

(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
8

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

TEX. CODE CRIM. PROC. art. 38.22, § 2(a); see Herrera v. State, 241 S.W.3d 520, 

526 (Tex. Crim. App. 2007) (recognizing that article 38.22, section 2(a) warnings 

are “virtually identical” to warnings required by Miranda, 384 U.S. at 444, except 

that article 38.22 also requires warning accused that he “has the right to terminate 

the interview at any time”).

For a custodial statement to be admissible, a defendant must knowingly, 

intelligently, and voluntarily waive his rights. See TEX.CODE CRIM. PROC. art. 38.22, 

§§ 2(a)–(b), 3(a)(2); see Miranda, 384 U.S. at 444. “The burden of proof regarding 

the waiver rests with the State; it must prove by a preponderance of the evidence a 

knowing, intelligent, and voluntary waiver.” State v. Lujan, 634 S.W.3d 862, 865 

(Tex. Crim. App. 2021). 

To be valid, a waiver of rights must be the product of a free and deliberate 

choice rather than intimidation, coercion, or deception. Id. The waiver must also be 

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

consequences of the decision to abandon it. Id. An accused need not expressly waive

his rights. Joseph v. State, 309 S.W.3d 20, 24 (Tex. Crim. App. 2010) (recognizing 

that generally neither express oral nor written waiver is required). Instead, waiver

may be inferred from an accused’s actions and words. Id. An accused’s implied 

waiver of his rights is established on a showing that he (1) was given the proper 
9

warnings, (2) understood the warnings and their consequences, and (3) made an 

uncoerced statement. Howard v. State, 482 S.W.3d 249, 256 (Tex. App.—Houston 

[1st Dist.] 2015, pet. ref’d); see Berghuis v. Thompkins, 560 U.S. 370, 384 (2010)

(“Where the prosecution shows that a Miranda warning was given and that it was 

understood by the accused, an accused’s uncoerced statement establishes an implied 

waiver of the right to remain silent.”).

Waiver is judged by the totality of the circumstances. Joseph, 309 S.W.3d at

25. “The ‘totality-of-the-circumstances approach’ requires the consideration of ‘all 

the circumstances surrounding the interrogation,’ including the defendant’s 

experience, background, and conduct.” Id. (quoting Fare v. Michael C., 442 U.S. 

707, 725 (1979)).

C. Analysis

In asserting that his video-recorded statement should be suppressed, Gallien

does not dispute that he was informed of his rights. Instead, he argues that his 

statement should be suppressed because “he did not understand the warnings he was 

given nor was he ever asked if he waived his right to remain silent.”

5

The video recording of Gallien’s statement shows that Detective West read

Gallien his article 38.22 rights and asked, “With those rights being read to you, [are 

5

In the trial court, Gallien also asserted that he had been coerced by Detective West 

to give the statement, but he does not make that claim on appeal.
10

you] willing to speak to me about this incident I’m out here to investigate?” Gallien 

responded affirmatively. There is no indication in the record that Gallien did not 

understand the rights read by Detective West. To the contrary, throughout the 17-

minute video, Gallien freely and fluently conversed with Detective West. Gallien 

appeared not only to understand Detective West’s statements and questions but also 

their implications. And, when he disagreed with Detective West, Gallien explained 

why Detective West was incorrect. He responded appropriately to Detective West’s 

questions, answering them in detail without a need for clarification or explanation. 

In short, Gallien appeared to have no difficulty in comprehending what Detective 

West said to him and showed no difficulty in articulating his thoughts and responses 

in return. From the video of the interview, the trial court could have reasonably 

inferred that Gallien understood his rights. See Galvan-Cerna v. State, 509 S.W.3d 

398, 410 (Tex. App.—Houston [1st Dist.] 2014, no pet.) (rejecting appellant’s 

argument that he did not waive his rights “because he was not explicitly asked if he 

understood the warnings given to him” where record showed that, during interview, 

(1) appellant and officer understood one another in Spanish and (2) appellant 

“convers[ed] freely and answer[ed] questions responsively”).

The trial court also could have reasonably inferred that Gallien impliedly 

waived his rights. After being read his rights, Gallien immediately agreed to speak 

to Detective West. Gallien proceeded to answer Detective West’s questions without 
11

hesitation and corrected Detective West when said something with which Gallien 

disagreed. See Joseph, 309 S.W.3d at 26 (“Immediately after being warned by [the 

officer] that he had the right to remain silent and that he did not have to make any 

statement to anyone, Appellant willingly participated in a six-hour interview.”);

Howard, 482 S.W.3d at 257 (considering, in determining that defendant impliedly 

waived statutory rights, that defendant had “immediately responded and provided 

detailed answers to [officers’] questions, at times correcting the officers when they 

stated something that appellant believed was incorrect”); Hargrove v. State, 162 

S.W.3d 313, 319 (Tex. App.—Fort Worth 2005, pet. ref’d) (noting, in concluding

that defendant impliedly waived statutory rights, that defendant “then proceeded 

without hesitation to discuss the present offense, although he denied any 

involvement during this first interview”).

When Detective West indicated to Gallien that it was his opportunity to 

explain what had occurred at the gas station, Gallien admitted that he had committed 

the offense. He explained that he committed the robbery because he was on “Kush” 

and needed money for his drug habit. Gallien did not ask to terminate the interview, 

and he did not ask for an attorney. See Joseph, 309 S.W.3d at 26 (considering 

whether defendant invoked right to remain silent and right to attorney in determining 

voluntariness of implied waiver of rights). In addition, Detective West testified that 

he did not promise Gallien anything in exchange for his statement, and he did not 
12

coerce or threaten Gallien. See id. (noting, in determining that defendant impliedly 

waived his statutory rights, that “there appears to be no possibility that a promise 

from police could have jeopardized the voluntariness of Appellant’s statement”). 

On appeal, Gallien claims that Detective West made a tactical decision not to 

ask him if he understood and waived his rights. He assertsthat “[t]he tactical decision 

of [Detective West] to skip over the understanding and waiver portion of the 38.22 

rights undermines any implied waiver.” But, as the State correctly points out, no 

evidence was offered supporting the assertion. Detective West never indicated that 

he made a tactical decision to forego asking Gallien if he understood or waived his 

rights. In fact, Detective West initially testified that he had asked Gallien if he 

understood his rights, but, after viewing the video of the interview, he acknowledged 

that he had not asked Gallien that question. 

Gallien points to the trial court’s remark that it “guess[ed] it’s a tactical 

decision sometimes with police officers talking to people as to whether or not to stop 

and clearly articulate you’re waiving your right, [but] that doesn’t preclude a 

statement from being voluntary and not coerced . . . .” (Emphasis added.) Gallien 

characterizes the trial court’s remark as a finding of fact and asserts that “[t]he trial 

court’s recognition that [Detective West] used a tactic to deny Mr. Gallien his 

constitutional and statutory rights should be enough to suppress the confession.”
13

We disagree with Gallien’s characterization. The trial court’s remark did not 

address Detective West’s conduct specifically; rather, it addressed what police 

officers in general “sometimes” do. Read in context, the trial court was conveying

that, even when an officer does not ask a defendant if he understands and waives his 

rights, a defendant’s waiver may still be valid.

As discussed, a waiver may be inferred from a defendant’s actions and words. 

Id. at 25. The defendant need not expressly waive his rights or expressly 

acknowledge that he understood them; instead, the totality of the circumstances must 

reflect that he waived his rights with “full awareness of both the nature of the right 

being abandoned and the consequences of the decision to abandon it.” See id. 

(quoting Moran v. Burbine, 475 U.S. 412, 421 (1986)).

Here, the evidence supported a determination by the trial court that the totality 

of the circumstances demonstrated that Gallien was aware of his rights, that he 

understood his rights, and that he impliedly waived his rights by speaking with

Detective West. See id. at 27 (stating, in affirming ruling that defendant impliedly 

waived his statutory rights, that, immediately after being read his rights, defendant 

willingly participated in interview with police and defendant never “ask[ed] that the 

interview be stopped, nor did he request an attorney”); Howard, 482 S.W.3d at 258 

(holding that totality of circumstances showed that appellant impliedly waived his 

rights when he immediately spoke with police after receiving rights); Galvan-Cerna, 
14

509 S.W.3d at 410 (upholding trial court’s denial of motion to suppress custodial 

statement, even though police officer had not asked appellant if he understood or 

waived rights, because record showed that appellant freely and fluently conversed 

with police officer during interview and had not invoked his rights). Accordingly, 

we hold that the trial court did not abuse its discretion by denying Gallien’s motion 

to suppress his recorded statement.

We overrule Gallien’s sole issue.

Conclusion

We affirm the judgment of the trial court. 

Richard Hightower

Justice

Panel consists of Chief Justice Adams and Justices Hightower and Countiss.

Do not publish. Tex. R. App. P. 47.2(b).