### T E X A S C O U R T O F A P P E A L S , T H I R D D I S T R I C T , A T A U S T I N

NO. 03-14-00388- CR

Matt hew Alan Baxter, A ppellan t

v. The State of Texas, App ellee

F ROM TH E DISTRI CT COURT O F B ELL COUNTY , 27TH JUDICI AL DISTRICT NO. 70,7 22, H ONO RAB LE JO HN GAUNTT, JUDGE P RESIDING

M E M O R A N D U M O P I N I O N A jury convicted appellant Matthew Ala n Ba x ter of a g g ravated sexual a ssault. See Tex. Penal Code § 22.021. The trial court assessed p u n i s h m en t at thirty y ear s’ imprisonment. See id

. §§ 12.32, 22.021(f)

. On appea l, appellant raises three issues challeng in g t h e t ri al court’s admission of evidenc e showing that the victim had a sexually transmitted disease and a fourth issue challeng ing the trial court’s admission of a written statement appellant provided to police during the underlying inve stiga tion in thi s case . We will affirm the trial c ourt’s judg ment of convic tion.

BACK GR OUND The rec ord shows that appellant was l i v i n g with his g irlfriend and his g irlfriend’ s four- y ear -old daug hter, E.T.M., in October 2012. A school counselor at E.T.M.’s presc hool testified that E.T.M. was ref

err ed to her on October 1 6 , 2012, by the school nurse beca use the nurse was

conce rned about bruises on E.T.M.’s fac e. After speaking with E

. T.M., the counselor called adetec tive to the school. Both the school counselor and the detec tive testified that E.T.M. discussed

how she g ot the bruises and that they stopped the i n t er view and called Child Protective Service s (“CPS”) when E.T.M. made a punching motion toward her vag ina with her fist to demonstrate how she had be en hit.

The evidenc e further shows that E.T.M. was taken to a hospital for an examination, wher e a sexual assault nurse examiner interviewe d E.T.M. and observe d injuries in and around her vag ina and bruises to he r body

. The nurse also collecte d a urine sample from E.T.M. to be used to deter mine whether E.T.M. had any sexually transmitted dis ease s. A doctor testified that E.T.M. tested positive for chlamy dia based on the urine sample, and E.T.M.’s mother testified that she also tested positive for c hlamy dia af ter she le arne d of the re sult of E.T.M.’s test. A detec tive who interview ed appe llant after he wa s arr ested testified tha t appellant made a written st atement during the interview, a sserting that a bruise on E.T.M.’s head and a bite mark on her buttocks wer e cause d by him when he was playing with E.T.M. The detec tive testified that appellant continued talking to him afte r writing the statement and that appellant then wrote an additional statement in which he made an admission reg arding his penis m aking contac t with E.T.M.’s mouth.

The jury convicted appellant of ag g ravated sexual assault, and the trial court assessed punishment at thirty

y ear s’ imprisonment. This appeal f ollowed.

2DISCUSSIO N

Adm ission of Evidence

of Sexually Transm itted Disease I n his f irst thr ee issues, appellant challeng es the trial court’s admission of evidenc e showing that E.T.M. tested positive for chlamy dia. Specifica lly , appellant argues that the trial court

err ed in (1) denying his motion in limine, in which he objected to the admission o f an y ev idence reg arding E.T.M. having chlamy dia based on the alleg ed unreliability of the scienti fi c t es t i n g proce dure used; (2) admitting evidenc e reg arding the scientific proce dure used to deter mine whether E.T.M. had chlamy dia beca use the trial court used the wrong burden o f proof in making its deter mination; and (3) admitting e v id e n c e showing that E.T.M. had chlamy dia beca use the rele vance of the e vidence was outwe ighe d by the risk of unfa ir prejudice in admitting the evide nce. We revie w the trial court’s admission of evidenc e for an abuse of discretion, and we d o not reve rse the trial court’s ruling unless the ruling falls outside the zone of rea so n ab l e d i s agr eeme nt. See Blasdell v. State , 470 S.W .3d 59, 62 (Tex. Crim. App. 2015); Coble v. Stat e , 330 S.W .3d 253, 272 (Tex. Crim. App. 2010). An expert witness may testify as to her opinion based

on scientific knowledg e if it will help t he trier of fact understand the evidence or deter mine a fa ct i n i ssue. Tex. R. Evid 702. A party proff ering expert testimony must show that the scientific evidenc e is reliable throug h clea r and convincing evidenc e showin g t h at : (1) the underlying

s ci en t i fi c theory is valid, (2) the technique apply ing the theory is valid, and (3) the t echnique was proper ly applied on the occa sion in question. Sexton v. State , 93 S.W .3d 96, 100 (Tex. Crim. App. 2002). Upon the reque st of the defe n d an t in a criminal case , the trial court must conduct a “g ateke eping ” hear ing outside the prese nce of the jury “to deter mine whether scientific evidenc e is

3sufficie ntly reliable and rele vant to help the jury in rea ching an acc urate result.” Coble , 330 S.W .3d

at 273; see Tex. R. Evid. 705(b) (“B efor e an expert states an opinion or discloses the underly ing fac ts or data , an adverse party in a . . . criminal case mus t

. . . be permitted to examine the expert about the under ly ing f

acts or da ta. This examination mus t take plac e outside the jury ’s hea ring .”). Her e, appellant objected to the admis sion of evidenc e of E.T.M.’s positive chlamy dia
test prior to trial and reque sted a hear ing about the reliability of the scientific testing proce dure used
to obtain the diag nosis. The trial court conducte d the hear ing in a pre- trial proce eding and then

overr uled appellant’ s objection. At trial, the State call ed a m ed i cal expert who explained the scientific pr ocedur e used in de termining the diag nosis and testified that E.T.M. tested positive for chlamy dia. The tria l court also admitted medica l rec ords showing E.T.M’s positive result.

Even assuming, without deciding , that the trial court err ed in admitting evidenc e that E.T.M. tested positive for chlamydia, we conclude that the err or would be harmless. The err oneous admission of evidenc e is non-constitutional err or. See Coble , 330 S.W .3d at 280; Bagheri v. State , 119 S.W .3d 755, 763 (Tex. Crim. App. 2003 ); Je s s o p v. State , 368 S.W .3d 653, 678 (Tex. App.—Austin 2012, no pet.). Acc ording ly , any err or must be disreg arded unless it aff ecte d appellant’ s substantial rig hts. See Tex. R. App. P. 44.2(b); King v. State , 953 S.W .2d 266, 271 (Tex. Crim. App. 1997). A substantial rig ht is aff ecte d when the err or had a substant i al an d i n j urious eff ect or influence in de termining the jury ’s verdic t. Coble , 330 S.W .3d at 280. I f the improperly admitted evidenc e did not influence the jury or had but a slight eff ect on its deliberations, the err or is harmless. Id. ; Bagheri , 119 S.W .3d at 763.

4I n conducting a harm analy sis, we examine the entire trial rec ord and calc ulate, to the

extent possible, the probable impact of the err or on the rest of the evidenc e. Coble , 330 S.W .3d at 280. I mportant fac tors in considering non-constitutional err or are the nature of the evidenc e supporting the verdic t, the char acte r of the alleg ed err or, and how the alleg ed err or m i gh t be considere d in connec tion with other evidenc e in the case . Bagheri , 119 S.W .3d at 763. I n analy zing the err oneous admission of expert testimony , we may consider, among other things: (1) the streng th of the evidenc e of the defe ndant’s g uilt; (2) whether the jury hear d the same or substantially simil ar admissible evidenc e throug h another source ; (3) the streng th or weakness of an expert’s conclusions, i n cluding whether the ex pert’s opinion was effe ctively ref uted; and (4) whether the S tate directed the jury ’s attention to the expert’s testimony during arguments. See Coble , 330 S.W .3d at 286–87.

I n this case , the evidenc e of appellant’ s g uilt was extensive. The sexual assault nurse examiner who examined E.T.M. on the same day as E.T.M. first repor ted sexual abuse testified that she observe d injuries to E.T.M.’s g enital are a, including three bruises, two lace rations, and petec hia in and around her vag ina. The nurse examiner testified that “pete chia” was “the littl e red pinpoint, looks almost like if y ou rea lly rub skin rea lly hard y ou g et that kind of marking if it’s been rubbed.” She testified that she also observe d an d took photos of other bruises on E.T.M.’s body , including bruises on her

fac e and buttocks. The photos wer e admitted into evidenc e. The nurse e x aminer’ s fore nsic repor

t was also admi tted into evidenc e and included her diag rams of injuries to E.T.M.’s body

. The diag rams showed sever al bruises on E.T.M.’s leg s, buttocks, back, and fac e. Fu rt h er diag rams of a boy and a g irl in the nurse examiner’s repor t indicate that E.T.M. used the term “tooshee ” for

both a vag ina and a

penis.

5The nurse examiner’s tes t imony , as well as her repor t, also descr ibed the nurse examiner’s interview of E.T.M. befor e the exam. Some of the rele vant excerpts from the interview include the f

ollowing:

Nurse: Did somebody touch y ou that made y ou uncomforta ble; in a way that y ou did not like? E.T.M.: Yes, [appellant] did. Nurse: Who is [appellant]? E.T.M.: My

daddy

. Nurse: What happened? E.T.M.: [Appellant] hit me, in my back and my tooshee [poi nts to her Fe male

Sex ual Org an]. I t hurts. He hit me in the fa ce.

. . . . Nurse: Did any one else touch y ou that y ou did not like? E.T.M.: My mommy , she spanked me . . . well, [appellant] did this

. . . [Takes

her own fist and demonstra t es a punch to her own Fe male Sex ual Org an.]

. . . . E.T.M.: [P atient starts to play with toy s in ro o m ; l o o ks up and then states:]

He pu t h i s tooshee in my mouth. [poi nts to Male Sex ual Org an on body diag ram]. He spit in my mouth with his mouth; now it is in my tummy

. Nurse: Who is he? E.T.M.: [Appellant]

.
I n addition to the nurse examiner’s testimony , a fore nsic interviewe r from the local children’ s advoca cy cente r testified about h er interview of E.T.M., which occur red the day afte r 6E.T.M. first repor ted abuse. The fore nsic interviewe r testified that she asked E.T.M. i f s h e was

scar ed of any one, and E.T.M. told her she was scar ed of appellant. When she asked E.T.M. why she

was scar ed of appellant, E.T.M. told her that it was beca use appellant “punche s her in her tooshee.” The interviewe r testified that E.T.M. used the term “tooshee ” to descr ibe both a vag ina and a penis. She further

testified that E.T.M. told her that a ppellant “put his tooshee in her mouth” and that he “choke s her in her mouth with his tooshee.” When asked whether any thing came out of appellant’ s “tooshee ,” E.T.M. stated that “pee ” came o u t an d d escr ibed it as “sticky ” and “white.” The interviewe r testified that s he asked E.T.M. if appellant’ s “tooshee ” touched any wher e else on E.T.M.’s body , and E.T.M. stated t hat i t also touched her “butt” an d t h at i t h u rt

. The int ervie wer also testified t hat s he asked E.T.M. about a bite mark on her buttocks that had been di scover ed in the exam the day

befor e, and E .T.M. stated that she g ot it from appellant. The school counselor who first spoke with E.T.M. at her school afte r the initial discovery of bruises on E.T.M.’ s fac e testified that E.T.M. showe d her “ that she had be en hit this way with a fist toward her g roin are a.” The dete ct i v e wh o h ad been called to the school by the counselor stated that E.T.M. “wa s asked a question about one of her injuries, and she had balled up her fist and made a punching motion to her vag inal are a.” The detec tive further testified that he took photogr aphs of E.T.M. that day , and the trial court admitted the photogr aphs into evidenc e. The photogr aphs show seve ral bruise s on E.T.M.’s fa ce a nd bruising on he r leg and bac k. By the time of trial, E.T.M. was si x y ea rs o l d and was reluc tant to answe r sever al questions, including questions in which the State asked her to identify the m ale sex ual orga n on a d i agr am . I n response to questions by the State reg arding whether a part of her body touched

7appellant’ s “tooshee ,” she stated that she was “sca red to r emember .” Ultimately , she testified that h er mouth touched appellant’s “tooshee,” that it felt “gr oss,” and that his “tooshee ” was hard, n o t soft. She also testified that appe llant cause d bruises on her face , hurt her arm, dropped her on the floor, made her le g s hurt, and “did ba d things to [her].”

Appellant also made a statement to a detec tive afte r he was arr ested an d p u t his
statement into writing

. The statement was admitted into evidenc e at trial. I n the initial statement, 1 appellant wr ote the following , in releva nt part:

The bruise on [E. T.M.’s] head came from me and [E.T.M.] playing a head butting g ame. Stopped play ing once the bruise appea red. The bite mark on [E.T.M.’s] butt came from when me and her wer e wr es t l i n g around. I bite and we continued to wrestle.

I n the additional statement, a ppellant wrote , in releva

nt part:

I would also like to add on Monday th e 15th 2012 afte r bedtim e and ever y one else had fallen aslee p, I g ot [E.T.M.] up to g o to the bathroom. After [E.T.M.] had g one potty , she we nt back to bed and I followed her t o tuck her in. When she sat on her bed she pointed at my dick and asked what it was. I was wea ring my g ree n robe and that was all I had on. I showed her and let her touch it when she asked. I told her to open her mouth, and she g rab[bed] my dick and stuck it in her mouth. I felt that what was ha ppening was wr ong and put her back to be d and we nt to bed my self.

E.T.M.’s mother testified that she and E.T.M. lived with appellant in a one-be droom apar tment at the time of the repor ted abuse. She testified that she and appellant slept in the bedroom,

In his final issue, appellant challeng es the trial court’s a d mi s s io n o f the additional statement. 1 I n our anal y s is of the issue below, we conclude that the trial court did not err in admitting the statement. 8and E.T.M. slept on a chair i n the l iving room. She further t es t i fi ed that appellant sometim es put

E.T.M. to bed and that he also woke E.T.M. during the night to take her to the bathroom beca use she had a bed-w etting problem. She testified that she never woke up at night. She also testified that she did not work at the time, but she left E.T.M. alone with appellant at times when she went to the g roce ry store and c onvenienc e store. I n addition to the extensive evidenc e of appellant’ s g uilt, the rec ord also shows that the State made a point to explain during closing arguments the way in which the challeng ed evidenc e could proper ly be considere d by the jury

. The State expl ai n ed t h at t h e jury could consider the evidenc e of appellant’ s extraneous offe nses, including the evidenc e that E.T.M. had chlamy dia, only if the jury believ ed b ey ond a rea sonable doubt that the other offe nses occur red and only for the purpose of considering appellant’ s state of mind and the rela tionship he had with E.T.M. The State also emphasized that the only issue for the jury to decide was whether the State proved the elements of the char g ed offe nse, which was that appellant cause d E.T.M.’s mouth to contac t his sexual org an. Specifica lly , the prosec utor stated:

P ar agraph seven [ of t he jury char g e] tells y ou that there is testimony befor e y o u i n the case reg arding the defe ndant’s having committed offe nses other than the offe nse alleg ed in the indictment, okay ? Kee p in m i n d that [t he] offe nse alleg ed in the indictment is that on October 15th, 2012, that the defe ndant cause d [E.T.M.’s] mouth to contact his sexual org an in Killeen, B ell County , Texas. T hose ar e the e lements of the offe nse . . . We hear d—y ou know, we hear d from [t he nurse examiner] about the injuries to [E.T.M.]

. We he ard all the things that [E.T.M.] —when she was safe and had somebody she could talk to, and [t he fore nsic interviewe r], all the things that [E.T.M.] disclosed to her. And we hear d what [t he medical expert] said about those kinds of injuries. And we hear d about the sexually transmitted disease that [E.T.M.] had. That’s what this is talking about. That’s what this pa ragraph is talking about, that y ou can consider those things if y ou believe them bey ond a rea s o n ab l e d oubt. And I don’t think there is a doubt in any body ’s mind that [t hat] four- y ear -old g irl at
9that time had a sexually transmitted disease and she had injuries to her g enitals. You

take that into consideration as to the rela tionship betwee n [E.T.M.] and [appellant]. What was g oing on? What was g oing on? And then y ou can use that information to say things li ke: You know, he may have said that [E.T.M.] was the ag g ressor here , that she’s the one that g rabbe d his sexual org an and put it in her mouth. Not when y ou have a ll this other stuff, f olks. He knewwhat he w as doing

.

. . . . Then y ou have the rig ht to consider all the fac ts that are shown by the evidenc e and to draw natura l and rea sonable infere nces from s u ch fac ts. That’s common sense. J ust like wh at we talked about, y ou can use those extraneous offe nses that we call them—the injuries t o her, the chlamy dia, that kind of thing—y ou can use that with y our common sense to help y ou understand what o ccurred, what occur red at that house in Killeen, B ell County , Texas. We g et to about the middle of the pag e [of the jury char g e]. We must prove eac h and ever y element. J ust those seven things, j ust the elements of t he offense. You m ay have some questions a

bout e very

thing that was g oing on . . . You know, how could some of this stuff happen? Those are not elements of the off ense. The y

are things that wi l l b o t h er y ou, but it rea lly comes down to did he cause [ E.T.M.’s] mouth to contac t his sex ual org an?

. . . . And [t he evidenc e], folks, along with common sense is probably the most important part of this Charg e and that is to focus on what the evidenc e showed y ou in this case as to those seve n elements that he ’s cha rg ed with. Although the State briefly reminded the jury in the second p ortion of closing arguments that the evidenc e showed t h at E .T.M. and E.T.M.’s mother both tested positive for chlamy dia, t he bulk of t he S tate’s refe renc es t o E.T.M.’s posi tive chlamy dia t est wer e as set forth above a nd proper ly

instructed the jury

as to the wa

y in which the evide nce c ould be consider ed. 2

We further note that there was no direc t evidenc e prese nted at trial showing that appellant 2 had chlamy dia. 10As ref ere nced by the State in closing arguments, the jury char g e als o i n cl u d ed an instruction as to the proper way for the jury to evaluate and consider evidenc e of ap pellant’s extraneous offe nses. Specific ally , the cha rg e stated:

You are instructed that if there is any testimony befor e y ou in this case reg arding the [appellant’s] having committed offense s other than the of fense alleg ed ag ainst him in the indictment i n t h i s ca s e, y ou cannot consider said testimony for any purpose unless y ou find and believe bey ond a rea sonable doubt that the defe ndant committed such other offe nses, if any wer e committed, and even then y ou may only consider the same for the purpose of deter mining the state of mind of [appellant] and the child or the pre vious and subsequent re lationship between [appellant] and the c hild, if any

. Considering the exten s i v e evidenc e of appellant’ s g uilt, both direc t and circ umstantial—including E.T.M.’s testimony that her mouth touched appellant’ s sexual org an, the
statements she made to the nurse examiner and fore nsic intervi ew er t h at appellant put his sexual

o rga n in her mouth, and appellant’ s admission that his sexual org an made contac t with E.T.M.’s

mo u t h

— an d consi dering that the jury rec eived proper instructions in the jury char g e and closing arguments abou t h o w t o evaluate and consider the challeng ed evidenc e, we conclude that the admission of the evidenc e that E

. T

. M

. h ad chlamy dia, if err or, did not have a substantial and injurious eff

ect or influence in deter

min i n g t h e j u ry ’s verdic t and was there fore harmless. See Tex. R. App. P . 44.2(b); Coble , 330 S.W .3d at 280, 286–87; Bagheri , 119 S.W .3d at 763.

Our conclusion that the admission of the challeng ed evidenc e was harmless disposes of all of appellant’ s first three issues beca use all of the issues—the trial court’s denial of appellant’ s objection in his motion in limine, the trial court’s alleg ed application of an incorre ct burden of proof, and the trial court’s admission of the evidenc e over an objection that the rele vance of the evidenc e

11was outweig hed by the risk of unfair prejudice in admitting the evidenc e—re sulted in the admission

of the same evidenc e. Ac cording ly , we ove rrule a ppellant’s first thre e issues.

Adm ission of Appellant’s Addi tional Written Statem ent I n his fourth issue, appell an t contends that the trial court err ed in admitting the additional statement he provided to police beca use the statement was not m ade voluntarily

. Specifica lly , he ar g ues that the stateme nt did not contain the war nings require d by article 38.22 of the Texas Code of Criminal Procedur e and that the detec tive who interrog ated him lied to him about having incriminating DNA evidenc e and told him sever al times that he did not believe he was telling the truth. Article 38.22 of the Texas Code of Criminal Procedur e provide s that:

No wr i tten statement made by an acc used as a result of custodial interrog ati o n i s admissible as evidenc e ag ainst him in any criminal proce eding unless it is shown on the fa ce of

the statement that: (a) the acc used, prior to making the statement,

. . . rec eived from the person to whom the statement is made a

war ning that: (1) he h as t h e ri gh t to rema in silent and not make any statement at all and that any statement he makes may

be used a g ainst him at his trial; (2) a ny statement he makes may be used a s evidenc e ag ainst him in court; (3) h e h as the rig ht to have a lawy er prese nt to advise him prior to and during any questioning; (4) if he is unable to employ a lawy er, he has the rig ht to have a lawy er appointed to advise him prior to and dur ing a ny questioning; a

nd (5) he has the rig ht to terminate the intervie w at any time; and

12(b ) t h e ac cused, prior to and during the making of the statement, knowing ly ,

intelligently , and voluntarily waived the rig hts set out in the warningpresc ribed by Subsection (a) of this section.

See Tex. Code Crim. P roc. a rt. 38.22, § 2. When considering whether a statement was voluntarily made, we look to the totality of the circ umstances surrounding its acquisition. Delao v. State , 235 S.W .3d 235, 239 (Tex. Crim. App. 2007). At a h ea ri n g o n the vol untariness of a written statement, “[ t] he trial court is the s ole judge of the weig ht and cre dibilit y of the evidenc e, and the trial court’s finding may not be disturbed

on appea l absent a clea

r abuse of discretion.” Alvarado v. State , 912 S.W .2d 199, 211 (Tex. Crim. App. 1995), overruled on other grounds by W arner v. State , 245 S.W .3d 458, 463 (Tex. Crim. App. 2008). I n this case, the tr ial court he ld a hea ring outside the prese nce of the jury , and the detec tive who interrog ated appellant testified about his interac tions with appellant. He testified that appellant ag ree d to speak with hi m , t h at h e rea d appellant his Miranda war nings, see Miranda v. Arizona , 384 U.S. 436 (1966), that he had appellant rea d the war nings himself, that he asked appellant if he understood eac h of the war nings, and that appellant answe red aff irmatively and wrote his initials
next to eac h war

ning. State’s Ex hibit 16, the initial written statement, shows appellant’ s initials next to eac h war

ning and hi s signature at the bot tom of t he page

. The detective testified that appellant talked to him and then put his statement into writing and signe d it. He further testif i ed that afte r appellant finished writing the s tatement, he and appe llant continued talking , and he told appellant that he did not believe appellant was telling the truth. Appellant g ave him further information, and he asked ap p ellant to put the new information into writing

. The detec tive testified that appellant

13wrote an additional statement, which beca me State’s Ex hibit 17 at trial, and that the detec tive trea ted it as a continuation of the f irst statement. The detec tive testified that the entire interview, including the conver sation betwee n him a nd appellant and the cre ation of both written statements, lasted about three -and- a-ha lf hours. The beg inning and ending times notated on State’s Ex hibit 16 and 17 are consistent with the detec tive’s testimony about the time frame. State’s Ex hibit 17, the addition al written statement, shows that the war

nings wer e crosse d out and had “N/A” written over them and that appellant beg an his statement with the words, “I would like to add . . .” During cross - e xa

mi n a ti o n , wh e n d e f

e n s e c o u n s e l asked the detec tive how many times he told appellant that he believed he was ly ing, the detec tive answe red, “Probably a few times.” I n response to a question about whether he told appellant that appellant’ s DNA had been fo u nd in E.T.M.’s sexual org an, the detec tive testified, “I may have said something along that line, y es, sir” and that he did not in fac t have any information about DNA evidenc e in the case . After considering the evidenc e, the trial court ruled that State’s Ex hibit 17, the additional statement, was a continuation of State’s Ex hibit 16, the initial statement, and that the statement in State’s Ex hibit 17 was voluntarily

made. 3 We ag ree with the trial court’s deter minations. The two case s discussed by appellant with respe ct t o this issue in his brief, Franks v. State , 712 S.W .2d 858 (Tex. App

. — Ho u s t o n [ 1 st

We abate d this case and rema nded it to the trial court to enter finding s of fac t and 3 conclusions of law in acc ordanc e with section 6 of article 38.22 of the Texas Code o f Criminal Procedur e. See Tex. Code Crim. Proc. art. 38.22, § 6. The trial court subsequently enter ed finding s of fac t and conclusions of law and ordered a supplementary rec ord prepa red and filed with this Court. Accor dingly , we r einstated the a ppeal. 14Dist.] 1986, pet. ref ’d) and Murphy v. State , 100 S.W .3d 317 (Tex. A pp.—San Antonio 2002, pet. ref ’d), help illust rate why we rea ch this conclusion. I n Franks , police provided Miranda war nings
to the defe ndant befor e interrog ating him for approximately thirty minutes and then took a brea k to interview other witnesses. 712 S.W .2d at 860–61. Approxim ately three and a half hours later, the police resumed their questioning of the defe ndant without reiter ating the war nings. Id. at 860. The
court held that “the second phase of the interrog ation was mere ly a continuation of the interrog ation proce ss, and that under the circ umstances prese nted, there was not such a ‘bre ak’ in the interrog ation proce eding as to require the g iving of new war nings.” Id. at 861. Appellant argues that this case is distinguishable from Franks beca use in Franks , the police office r asked, “And y ou reme mber ear lier that I have advised y ou of y our Constit utional Rights? ” befor e rene wing questioning. Howeve r, in this case , the evidence s h o ws that there was no brea k in questioning. Rather, the evidenc e shows that appellant rec eived his war nings, wrote his initial statement, continued talking with the detec tive, and then wr o t e an additional statement, all within a single three -and- a-ha lf-hour- long interview. Thus, a case like Franks , wher e new war nings wer e not require d even afte r a brea k in que stioning, supports a conclusion that new war nings would not be require d befor e appellant added more written inf o rm ation to a statement he made within a single interview. We also note that sever al other

ca s es ar e consistent with our holding in this case and the holding in Franks

. See, e.g. , B i b l e

v. State , 162 S.W .3d 234, 241–42 (Tex. Crim. App. 2005); Newson v. State , No. 05-14-01455- CR, 2015 WL 7302525, at *4–5 (Tex. App.—Dallas Nov. 19, 2015, no pet.) (mem. op., not desig nated for publication); Cotten v. State , No. 08-13-00051- CR, 2013 WL 6405511, at *4–5 (Tex. App.—El

15Paso Dec

. 4, 2013, pet. ref ’d) (not desig nated for publication); Burruss v. State , 20 S

. W.3d 179, 183–84 (Tex. App.—Texarkana 2000, pet. re f’d)

. The other case cited by appellan t , Mu r p h y, also supports our deter mination in this

case . I n Murphy , the defe ndant provided a written statement to the police. 100 S.W .3d at 321 n.7. At that point, the police office r aske d the defe ndant whether he would like to add any thing to the statement, and the defe ndant answe red a ffirma tively and provide d a handwritten addendum to the first written statement. Id. The defe ndant argued on appea l that the trial court err ed in admitting the ad d endum beca

use it did not contain a statement showing that he “knowing ly , intelligently , an d voluntarily waived his rig hts.” Id. After concluding that the defe ndant’s arg ument lacke d merit, the
court stated that “bec ause the addendum was not a separ ate statement by [t he defe ndant], but rathe r,

a continuation of the statement he had just signe d for authorities, there was no need fo r t h e addendum to also include a waiver statement.” Id. Appellant asser ts that this case is distinguishable from Murphy beca

use the de fenda

nt in Murphy simply offe red additional information i n response to a question about whether he had any thing to add, while in this case , appellant “wa s acc used of ly in g a n d [t h e detec tive] misrepre sented there was DNA evidenc e connec ting appellant to the offe n s e

. . . caus[ing] appellant to rec ant his denial and admit to oral sex with [E.T.M.] .” Howeve r, there is

no indication in the rec ord of when during the interrog ation the detec tive made the misrepre sentation about DNA evidenc e. Fur ther, misrepre sentations made by t h e p o lice to a suspect during an interrog ation are rele vant fa ctors in assessing whether the suspect’ s confe ssion was voluntary , but they are insufficient to rende r an otherwise voluntary confe ssion inadmis s i b l e. Gree n v. State , 934 S.W .2d 92, 99 (Tex. Crim. App. 1996). The misrepre sentations must be viewed in the context

16of the totality of the circ umstances, as some ty pes of police dece ption during custodial interrog ation

are permissible. Id. “The focus is on whether the behavior of the State’s law enfor ceme nt officia ls

was such as to overbe ar the will of the acc used and bring about a confe ssion not fre ely deter mined.” Id

. at 99–100. Of the potential ty pes of police dece ption, a misrepre sentation rela ting to an acc used’s

connec tion to the crime is the least likely to rende r a c onfession involuntary

. Id. at 100. Her e, the rec ord shows that the only misrepre sentation made by the detec tive was that the polic e d i s cover ed appellant’ s DNA in E.T.M.’s sexual org an, which rela ted to appellant’ s

connec tion to the crime. Thus, the misrepre sentation falls wi thin the rea lm of those that are not lik el y t o re nder a statement involuntary

. See id. at 99–100 (dete ctive’s statement during interrog ation that there was ey ewitness to murder did not rende r defe ndant’s statement involuntary ); W eave r v. State , 265 S.W .3d 523, 535 (Tex. A pp.—Houston [1st Dist.] 2008, pet. ref ’d) (off icer s’ misrepre sentations that witnesses, fing erpr ints, and video linked defe ndant to crime w ere not ty pe of dece ption that likely cause d involuntary confe ssion). Wit h respe ct to appellant’ s argument that his statement was rende red involuntary by the detec tive’s asser tions that he believed appellant was ly ing, we note that appellant has not cited t o any authority in support of his argument. On the
contra ry , the Texas Court of Criminal Appea ls has held t h at assertions like those made by the detec tive in this case do not rende r a defe ndant’s statement involuntary

. See Estrada v. State , 313 S.W .3d 274, 297 (Tex. Crim. App. 2010) (statement voluntary despite interrog ation techniques that included ac cusations of c riminal conduct a nd asser tions that defenda

nt was ly ing)

. We further note t hat t he trial court properly instructed the jury reg arding the j ury ’s consideration of the voluntariness of appellant’ s statement. See Tex. Code Crim. P roc. a rt. 38.22,

17§ 6; Oursbourn v. State , 259 S.W .3d 159, 165 (Tex. Crim. App. 2008). Specifica lly , the jury char g e

included a pa

rag raph stating :

You are instructed that our law provides that y ou should not consider as evidenc e any statement made by a defe ndant, or any evidenc e obtain ed as a result of such statement, unless the evidenc e convince s y o u b ey o nd a rea sonable doubt that the statement was made voluntarily by the def endant. The ref

ore, unle ss y ou find from the evidenc e bey ond a re asonable doubt that the alleg ed stateme nt of the defe ndant was made v o luntarily , or if y ou enter tain a rea sonable doubt as to whether it was made voluntarily , y ou shall not consider such statement for any purpose whatsoeve r nor shall y ou consider a

ny evidenc e obtained f

rom such stateme nt.

Given the evidenc e in the rec ord showing that appellant pro p er ly rec eived the Miranda war

nings, that he continued talking to the detec tive afte r writing his first statement without

a brea k in the interview, and that the detec tive’s asser tions that he thought appellant was ly ing and that he had DNA

evidenc e whe n he did not are not the ty pe of a ssertions that rende r a defe ndant’s
statement involuntary , we conclude that the trial court did not err in admitting the additional written statement provided to police by appellant. Ac cording ly , we ove rrule a ppellant’s four

th issue.

CONCLUSION Having overr

uled all of ap p el l an t ’s issues, we aff irm the trial court’s judgme nt of convic tion.

18_______________________________ Cindy Olson Bour land, J ustice Be fore J ustices Pury ear , Pemberton, and B ourland Affir med Filed: June 2, 2016 Do Not Publish

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