## COURT OF APPEALS SECOND DISTRICT OF TEXAS FORT WORTH NO. 02 - 09 - 00346 - CR

KINTE L. SARGENT APPELLANT
V. THE STATE OF TEXAS STATE

------------ FROM CRIMINAL DISTRICT CO URT NO. 3 OF TARRANT COUNTY

------------ 

### MEMORANDUM OPINION 1

---------- In troduction Appellant Kinte L. Sargent appeals his conviction for possessi ng a controlled substance with intent to deliver , asserting that the trial court erred by denying his motion to suppress a recorded interview in which he admitt ed th at drugs seized d uring a search were his . We affirm.

1 See Tex. R. App. P. 47.4.2 Background Facts and Procedural History Appellant was playing video games in a Fort Worth duplex with Cedric and Cor y Finley when n arcotics officers , executing a search warrant , entered through the front door . A ppell ant r a n from the living room to ward a bedroom before stopping in the hallway and ly ing down on the floor

. He told officers securing the duplex as they walked by that any drugs they f oun d belonged to him

. O nce the duplex was secured, O fficer Thomas Bulger led Appellant outside and plac ed a tape recorder between them on the hood of a pick up truck parked in the driveway . He turned the recorder on , read Appellant the Miranda warning s, 2 and recorded Appellant ad mitt ing that t he drugs seized in the duplex

were his

. O fficer s searching the kitchen found digital scales and a large , black plastic bag in a cupboard. The bag contain ed approximately one hundred grams of crack cocaine divided into smaller plastic bags

. The officers arrested Appellant , and he was cha rged with possession of four or more but less than two hundred grams of cocaine with intent to deliver. Before trial , he filed a motion to suppress h is recorded statement , claiming that its admission would violate his rights under provisions of the state and federal
constitutions and the code of criminal procedure . T he trial court denied the motion to suppress after a hearing

.

2 See Miranda v. Arizona , 384 U.S. 436, 444, 86 S. Ct. 1602, 1612 (1966).3

At trial, Officer Bulger testified that as soon as t he officers entered the duplex , Appellant spontaneously admitted owning all t he drugs. Appellant did not object to this testimony. Officer Bulger further testified that he subsequently recorded an interview with Appellant during which Appellant reiterated that all the drugs were his

. The recording was admitted in evidence and pu blished to the jury

. 3 A fter the State rested, Cedric Finley testified for the defense that he did not hear Appellant claim that the drugs were his

. The jury found Appellant guilty and assessed his punishment at thirty

- five years’ confinement. The trial court sentenced him accordingly. Issues on Appeal
I n six is sues , Appellant clai m s that the trial court abused its discretion by
adm i tting h is recorded statement in violat ion of the Fourth, Fifth, Sixth, Eighth , and Fourteenth Amendments to the United Stat es Constitution ; a rticle 1, s ection 9 of the Texas c onstitution ; and a rticles 1.04, 38.22 and 38.23 of the Texas Code of Criminal Procedure. Appellant combines all six issues and argues that his recorded statement should have been suppressed because (1) t he officer’s warning was an improper statement of the law ; and (2) Appellant did not

3 Befo re trial, the driveway recording of the interview was copied to two compact discs, marked State’s Exhibits 1 and 11. State’s Exhibit 1 contained the original recording and two redacted versions that the prosecutor had prepared anticipating potential objec tions at trial. State’s Exhibit 1 was admitted and published to the trial court at the pretrial hearing. State’s Exhibit 11 contained only the original unredacted recording and was admitted at trial and published to the jury. Neither redacted version wa s used at trial.4

expressly state that he understood his rights and that he voluntar il y, knowing ly , and intelligent ly waive d them

. Initially, t he State responds that we need not consider a ll of Appellant’s
issues because h e did not argue them all at the pretrial hearing . Specifically, t he State points out that Appellant did not argue to the trial court that admi tting the
statement would violate the Texas constitution, article 1.04 of the c ode of criminal procedure , and the Fourth, Sixth, Eighth, and Fourteenth Amendments to the United States Constitution

. Thus , the State argues , Appellant has w aived all but his claims under the Fifth Amendment and article 38.22 of the code of criminal
proc edure. In support of t his a rgument , the State relie s on appellate rule 33.1(a) and
two cases from the court of criminal appeals. 4 N either of the cases cited by the State , however, involves a trial court’s denial of a motion to suppress , as is the

case h e re

. Moreover, r ule 33.1(a) states that as a prerequisite for presenting a complaint for appellate review, the record must show that the complaint was made to the trial court by a timely request, objection or motion that stated the grounds for the sought

- a fter ruling with sufficient specificity to make the trial court aware of the complaint. Tex. R. App. P. 33 .1 (a)(1) ; see Mosley v. State , 983

4 The State cites Wright v. State , 28 S.W.3d 526, 536 (Tex. Crim. App. 2000) for the proposition that error under the Sixth Amendment Confrontation Clause may be waived; and Gallo v. State , 239 S.W.3d 757, 758 (Tex. Crim. App. 2007) for its h olding that the appellant’s trial objection in that case did not comport with his argument on appeal and , therefore, that his compla int on appeal was not preserved.5

S.W.2d 249, 265 (Tex. Crim. App. 1998) (op. on reh’g), cert. denied, 526 U.S. 1070 (1999). The record shows that Appellant timely filed a motion to suppress , that the motion plainly invok es the provisions upon which h e base s his appellate claims f or relief , and that the trial court denied the motion

. I nitially, therefore, Appellant preserved all his claims for revie w. See Tex. R. App. P. 33 .1 (a)(1);
Mos l ey , 983 S.W.2 d at 265; Mendez v. State , 138 S.W.3d 334, 341 (Tex. Crim. App. 2004). We say initially because, although Appellant cite d state and federal constitutional provisions as grounds for relief in both his mo tion to suppress and in his brief , he does not distinguish his state and federal constitutional claims or provid e substantive argument in support o f each . S pecifically , he does not argue how the Texas constitution affords more protection than its federal counterpart

. Accordingly, of his constitutional claims, we consider only t h ose relying on the United States Constitution and we disregard t h ose based upon the Texas constitution

. See Welch v. State , 93 S.W.3d 50, 52 n.5 (Tex. Crim. App. 2002) ; Heitman v. State , 8 15 S.W.2d 681, 690

– 91 n.23 (Tex. Crim. App. 1991). Appellant’s second and fifth issues , therefore, are overruled. We now turn to the remaining ones. Standard of Revi ew We review a trial court’s ruling on a motion to suppress evidence under a
b ifurcated standard of review. 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

In reviewing the trial court’s decision, we do not engage in our own factual
review. Romero v. State , 8 00 S.W.2d 539, 543 (Tex. Crim. App. 1990); Best v. State , 118 S.W.3d 857, 861 (Tex. App.

— Fort Worth 2003, no pet.). The trial judge is the sole trier of fact and judge of the credibility of the witnesses and the weight to be given their testimony. Wiede v. State , 214 S.W.3d 17, 24

– 25 (Tex. Crim. App. 2007); State v. Ross , 32 S.W.3d 853, 855 (Tex. Crim. App. 2000), modified on other grounds by State v. Cullen , 195 S.W.3d 696 (Tex. Crim. App. 2006). Therefore, we give almost total deference to the trial co urt’s rulings on (1) questions of historical fact, even if the trial court’s determination of those facts was not based on an evaluation of credibility and demeanor, and (2) application

of

- law

- to

- fact questions that turn on an evaluation of credibility and demeanor.
Amador , 221 S.W.3d at 673; Montanez v. State , 195 S.W.3d 101, 108

– 09 (Tex. Crim. App. 2006); Johnson v. State , 68 S.W.3d 644, 652

– 53 (Tex. Crim. App. 2002). But when application

- of

- law

- to

- fact questions do not turn on the credibility
and demea nor of the witnesses, we review the trial court’s rulings on those questions de novo. Amador , 221 S.W.3d at 673; Estrada v. State , 154 S.W.3d 604, 607 (Tex. Crim. App. 2005); Johnson , 68 S.W.3d at 652

– 53. Stated another way, when reviewing the trial cour t’s ruling on a motion to suppress, we must view the evidence in the light most favorable to the trial court’s ruling. Wiede , 214 S.W.3d at 24; State v. Kelly , 204 S.W.3d 808, 818 (Tex. Crim. App. 2006). When the trial court makes explicit fact findings, we determine whether the evidence, when viewed in the light most favorable to the7

trial court’s ruling, supports those fact findings. Kelly , 204 S.W.3d at 818

– 19. We then review the trial court’s legal ruling de novo unless its explicit fact findings , t hat are supported by the record , are also dispositive of the legal ruling.
Id. at 818. We must uphold the trial court’s ruling if it is supported by the record and correct under any theory of law applicable to the case even if the trial court gave
the wr ong reason for its ruling. State v. Stevens , 235 S.W.3d 736, 740 (Tex. Crim. App. 2007); Armendariz v. State , 123 S.W.3d 401, 404 (Tex. Crim. App. 2003), cert. denied , 541 U.S. 974 (2004). The Statement
We begin by examining the entire statement, which w e have transcribed
and reproduce d below :

OFFICER: Hey, what’s your last name, dude? APPELLANT: S

- A

- R

- G

- E

- N

- T. OFFICER: Hang on, what? APPELLANT: S

- A

- R

- G

- E

- N

- T. OFFICER: S

- A

- R

- G

- E

- N

- T?
APPELLANT: Uh

- huh. OFFICER: Your first name?
APPELLANT : K

- I

- N

- T

- E. OFFICER : K

- I

- N

- T

- E? Middle?
APPELLANT : L.8 OFFICER : L?
APPELLANT : Yes, sir. OFFICER : What’s your birthday?
APPELLANT : 2

- 6

- 77. OFFICER : 2

- 6

- 77. You know what today’s date is?
APPELLANT : Unh

- uh , but , l et me tell you [inaudible] , c ut that off so I can tell you something first , please. OFFICER : Cut off the recording?
APPELLANT : So I can tell you something first. That’s going to [expletive deleted] me in the end. OFFICER : You know what today’s date is?
APPELLANT : No sir. O FFICER : Hey, is this the 30th? 30th? All right. I’m going to read you your warning. Your adult warning. These are your rights, OK? You have the right to remain silent, not make any statement at all. Any statement you make may be used against you at your trial. Any statement you make may be used as evidence against you in court. You have the right to have a lawyer present to advise you prior to and during any questioning. If you are unable to employ a lawyer, you have the right to have a lawyer ap pointed to you to advise you prior to and during any questioning. You have the right to terminate the interview at any time. You understand that? Do you have any questions about any of those? OK. Do you know who lives at this house?
APPELLANT : Unh

- uh. OFFICER : You don’t know who lives here?
APPELLANT : Oh, the lady lives here. OFFICER : Who is she?9 APPELLANT : Oh, you don’t know [inaudible] , you know what I’m saying [inaudible] p lease don’t make me do that. I’m, I already told you that it was mine. OFFICER : OK, the only statement I can use against you in court is a written statement or a recorded statement. Like I told you, if you say that the drugs in this house are yours then you’re going to have to claim that they’re yours either recorde d or written or I can’t use it.
APPELLANT : [inaudible] You not going to take anybody to jail? Or are you just going to take me to jail? OFFICER : If I am convinced that everything in this house that’s illegal that we are interested in belongs to you, then you are going to be the only person charged.
APPELLANT : That’s what I want to do. OFFICER : OK, do you know who lives in this house?
APPELLANT : That girl right there , [inaudible], that girl right there , Rene lives in there. OFFICER : Rene. D o you know who she is? I mean is she related to you or a friend or what?
APPELLANT : She’s not a friend ; she’s not a lady friend. OFFICER : OK. So, why are you over here?
APPELLANT : I’m over here because my other cousin, one of my other cousins, the skinny dude , we, we been over here chillin

. OFFICER : What’s his name?
APPELLANT : Cedric

. OFFICER : Cedric. OK . S o, you’re hanging out with him. OK. During the search warrant at this house we found around f our ounces of crack cocaine. Do you kno w anything about that?
APPELLANT : It’s mine.10 OFFICER : That belongs to you?
APPELLANT : Yes, sir. OFFICER : How did it get to this house?
APPELLANT : I, I put it off in there. OFFICER : How did it get to this house?
APPELLANT : Oh, I put it off in there. OFFICER : Did you drive it over here?
APPELLANT : [inaudible] I drive it over here. It’s mine. I put it off in there. I didn’t drive it over here but I put it off in there. OFFICER : You understand what my job is?
APPELLANT : I’m not goi ng to tell you all the shit that we put off in there. OFFICER : OK. You understand what my job is?
APPELLANT : Yes, sir. OFFICER : OK. My job is to find drug dealers and make the best case that I can against them. OK? From the information that I go t about you, you’re a person that sells cocaine and crack cocaine. That’s why we’re here tonight. OK. So , it’s kind of weird that if we come over here, you’re here, and you’re car is here, and we find crack cocaine and you ’re wanting to take responsibil ity for it.
APPELLANT : It’s weird? OFFICER : Yeah, and now you’re tel ling me somebody gave it to me.
APPELLANT : I’m, check, because the reason why is because nobody in the house except me knew anything about it. OFFICER : OK. Why was it here?11 AP PELLANT : [Sigh], [inaudible] any more questions that that’s not even , t hat’s not has nothing to do with why it’s here is having to do with its mine and you know what I did with it. OFFICER : OK. So it’s here for somebody to sell. And you’re saying

. . . . APPELLANT : No, not out of this hous e. It’s being hibernated like. OFFICER : I gotcha.
APPELLANT : I hid it off in there. OFFICER : I gotcha. OK

. So it’s just here stashed.
APPELLANT : I hid it off in there. OFFICER : Gotcha. Do you know w hat it’s packaged in?
APPELLANT : Yeah, off in a black bag. God! OFFICER : So, all you’re telling me is that you brought it over here to hide to keep for a later time. Is that pretty much it?
APPELLANT : I was going to smoke it. OFFICER : Four ounce s?
APPELLANT : Hell, yeah, [l aughs] I smoke the shi

– OFFICER : All right. All right, dude , [inaudible], you deal drugs. You know that you deal drugs. That story’s wrong. Don’t try to side

- step it.
APPELLANT : I ain’t going to tell you that I deal drugs, officer. OFFICER : I thought you said you wanted to be honest with me. APPELLANT : I’m being honest with you. OFFICER : OK. Then do it.12 APPELLANT : But I’m saying you told me that anything I say going to be held and accounted against me

. . . . OFFICER : Yes

. APPELLANT : I done told you it was mine. I ain’t going , um , I ain’t going to , um , uh , whatever you call it

. . . OFFICER : Incriminate yourself ?
APPELLANT :

. . . any more than what I’ve already did

. OFFICER : Well, you , you’re ki nd of at a crossroads here because you’re saying this stuff belongs to me and nobody else in this house. But that’s all you want to say. You don’t want to talk about anything else. That puts me in a bad situation. I’m trying to bring this case to the c onclusion.
APPELLANT : Come on man, you know that I told you it’s mine and nobody else knew. That’s how I want to tell you. Nobody else knew it was in there except me. And that’s it , it was mine , it belonged to me, Kinte Sargent. OFFICER : Perfect. Is there anything else in this house illegal that belongs to you that they found or gonna? Nothing at all ?
APPELLANT : Nothing else. OFFICER : OK. Anything else you want to talk to me about? No

. Discussion In his first and third issues, Appellant c ontends that the trial court erred by admitting the recording because it contain s n o express ion from Appellant that he understood his rights after Officer Bulger read them to him

. He asserts that Officer Bulger never asked him if he understood what his ri ghts were

. The recording disproves this assertion.13

Appellant is correct, t ho ugh , that t he record shows that no express waiver of his rights appears on the recording. But the law does not require that the recording reflect an express waiver of rights. R ocha v. State , 16 S.W.3d 1, 12 (Tex. Crim. App. 2000); Etheridge v. State , 903 S.W.2d 1, 16 (Tex. Crim. App. 1994), cert. denied , 516 U. S. 920, 116 S. Ct. 314 (1995). And in Berghuis v. Thompkins , the United States Supreme Court recently affirmed that wai vers need not be expressly stated but can be impl ied from all the circumstances. 130 S. Ct. 2250, 2261 (2010). The State must prove, however, that the accused did, in fact , knowingly and voluntarily waive his rights; that is, i t must prove that the waive r was made with the full understanding of the right being abandoned and of the consequences of that abandonment with the further burden of proving that the decision was made freely and deliberately without coercion or deception. Id

. at 2261

– 62. On th e re cording i n this cas e , Officer Bulger read Appellant his rights, ask ed him if he underst ood them, and ask ed him if he ha d any questions about any of them . Thereafter , Appellant ke pt talking. Moreover, as the exchange below demonstrate s , Appellant expresse d a clear and fairly sophisticated understanding o f his rights and a willingness t o freely incriminate himself

–– up to a point.
APPELLANT : I ain’t going to tell you that I deal drugs, officer.

OFFICER: I thought you said you wanted to be honest with m e.14 APPELLANT: I’m being honest with you. OFFICER: OK. Then do it.
APPELLANT: But I’m saying you told me that anything I say going to be held and accounted against me

. . . . OFFICER: Yes.
APPELLANT: I done told you it was mine. I ain’t going , um , I ain’t going to , um , uh , whatever you call it

. . . OFFICER: Incriminate yourself ?
APPELLANT:

. . . any more than what I’ve already did

. Finally, Appellant demonstrated that he understood that what he told the officer
could result in his incarce ration:

APPELLANT: [inaudible] You not going to take anybody to jail? Or are you just going to take me to jail? OFFICER: If I am convinced that everything in this house that’s illegal that we are interested in belongs to you, then you are going to be the only person charged.
APPELLANT: That’s what I want to do

. Contrary to Appellant’s assertion on appeal, our review of the recording
shows that A ppellant expressed sufficient understanding of his rights to control
how much he would incriminate himse lf, that is , he was willing to go up to a point and no further : admit ting that he possess ed drugs, but denying intent to distribute them

. We hold, therefore, that t he recording contains Appellant’s expressed understanding of his rights. Further, Appellan t has not argued nor is there15

evidence that he was coerced or intimidated into making the statements he made. Accordingly, w e overrule Appellant’s first and third issues. In his fourth and sixth issues, Appellant contends that t he trial court erred by ad mitting the recording because the warning the o fficer gave him was improper. Article 38.22 requires the following warning be given an accused before a recorded statement may be used against him:

(1) he has the right to remain silent and not make any sta tement 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 question ing; (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. Tex. Code Crim. Proc. Ann. art. 38.22 , §§ 2( a), 3(a)(2) (Vernon 2005 ). As the transcribed recording reveals, Officer Bulger recited the above war n in g, practically verbatim . During the course of the conversation and in response to Appellant’s apparent concern over implicating someone who lived in th e duplex and his desire to take sole responsibility for the drugs that were s eized, the officer explained, ―T he only statement I can use against you in court is a written statement or a recorded statement. Like I told you, if you say that the drugs in16

thi s house are yours then you’re going to have to claim they’re yours either recorded or written or I can’t use it.‖ Appellant characterizes the officer’s warning as ―contradictory and improper: Any statement you make may be used against you and no statemen t you make may be used against you unless it’s written or recorded.‖ This is a mischaracterization. First, we note that on the recording Appellant admitted owning the drugs

even before the officer gave what Appellant characterizes as the contradictory
pa rt of the warning. Moreover, the record shows that while Appellant may have balked at having what he said recorded and been unwilling to incriminate anyone else , he was anxious to talk and take sole responsibility for the drugs found in the duplex

. Offic er Bulger testified at trial,
The whole time

-- as soon as we made entry he was saying,

― [E] verything is mine, everything is mine; nobody knew anything but me. Anything you find is mine. There is drugs here,‖ and just on and on and on. It was hard to ge t him to be quiet. Further, the recording indicates that the reason Appellant wa s so eager to talk was to ensure that no one else would be held responsible for the drugs

. 5 After the officer assured him that he would be the only person charged if he

conv inced the officer, through a written or recorded statement, that everything

5 Appellant told the officer, ―Nobody in the house except me knew anything about it.‖17

illegal in the house belonged to him, Appellant responded, ―That’s what I want to do.‖
We hold that Officer Bulger’s telling Appellant that h e could not use a statement from Appel lant unless it was written or recorded was not given as part of the required warning. Appellant’s appropriate questions and responses demonstrate that he understood his rights, including that the recording could be used against him and he actively took fu ll responsibility for all illegal substances found in the search. See Berghuis , 130 S. Ct. at 2261. We have reviewed the evidence in the light most favorable to the trial court’s ruling and hold that the evidence supports the trial court’s express findin g that Appellant was properly warned and that he freely and voluntarily made the statements contained on the recording. Accordingly, w e overrule Appellant’s fourth and sixth issues. Conclusion Having overruled all of Appellant’s issues, w e affirm the tri al court’s judgment.

L E E GABRIEL JUSTICE
PANEL: WALKER, MEIER, and GABRIEL , J J. DO NOT PUBLISH Tex. R. App

. P. 47.2(b )
DELIVERED: April 7 , 2011