NUMBER 13-17-00056-CR

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI - EDINBURG 

 

DONALD EUGENE LISCOTTI, Appellant,

v.

THE STATE OF TEXAS, Appellee.

 

On appeal from the 36th District Court

of Aransas County, Texas.

 

MEMORANDUM OPINION

Before Chief Justice Valdez and Justices Rodriguez and Benavides

Memorandum Opinion by Justice Benavides

By two issues, appellant Donald Eugene Liscotti appeals his six convictions for 

possession of child pornography, a third-degree felony. See TEX. PENAL CODE ANN. § 

43.26 (West, Westlaw through 2017 1st C.S.). Liscotti argues the trial court committed 

error by overruling his objection and motion for mistrial regarding testimony from a State’s 

witness and by denying his motion to suppress. We affirm.
2

I. BACKGROUND

Liscotti was charged with six counts of possession of child pornography. See id. 

Following trial, Liscotti was found guilty by a jury. The trial court sentenced Liscotti to 

ten years’ imprisonment in the Texas Department of Criminal Justice—Institutional 

Division on counts one, two, and three and ten years’ imprisonment to run concurrently 

and to ten years’ imprisonment on counts four, five, and six to run concurrently. Based 

on the State’s request, the trial court ordered Liscotti’s ten-year sentence on counts one, 

two, and three, run consecutive to his ten-year sentence on counts four, five, and six. 

This appeal followed. 

II. WITNESS TESTIMONY

By his first issue, Liscotti argues the trial court committed error by overruling his 

objections to testimony by a State’s witness and denying his motion for mistrial 

A. Relevant Background

Prior to the start of trial, Liscotti filed a motion in limine to exclude testimony 

regarding extraneous offenses. The trial court granted the motion in limine and told both 

parties to approach if any extraneous offense testimony was offered. During the State’s 

questioning of Kenneth Patterson, a computer forensic specialist with the Corpus Christi 

Police Department Internet Crimes Against Children Unit, the issue of a search warrant 

was raised. In response to the State’s question, Patterson stated:

Okay. The search warrant I received on the 30th of December, two 

days after I received the case. 

As one of my procedures, I had a consent and it was primarily on an 

indecency with a child. Once I started the analysis and I found child 

pornography, I halted the analysis and contacted the case agent, Chief 
3

McLester, and informed him I had found child pornography and was halting 

until I would get a search warrant for child pornography. 

After a few more questions, Liscotti asked to approach. At a bench conference, 

Liscotti stated “He started off the reason for the investigation and he mentioned a motion–

or, exclusion, as far as indecency with a child. I want to object to that and move for a 

mistrial at this time.” The trial court overruled the objection and told the State to continue 

its examination. 

B. Applicable Law

For error to properly be preserved for appellate review, Liscotti’s complaint may 

take three forms: (1) make a specific, timely objection; (2) request for a jury instruction 

to disregard; and (3) request a motion for mistrial. See TEX. R. APP. P. 33.1(a); Young v. 

State, 137 S.W.3d 65, 69 (Tex. Crim. App. 2004) (en banc). All three remedies serve to 

prevent and correct errors and conserve judicial resources. See Young, 137 S.W.3d at 

69. An objection serves as a preemptive measure because it informs the judge and 

opposing counsel of the potential for error. Id. An instruction to disregard attempts to 

cure any harm or prejudice resulting from events that have already occurred. Id. Where 

the prejudice is curable, an instruction eliminates the need for a mistrial, thereby 

conserving the resources associated with beginning the trial process anew. Id. A grant 

of a motion for mistrial should be reserved for those cases in which an objection could not 

have prevented, and an instruction to disregard could not cure, the prejudice stemming 

from an event at trial. Id. The essential requirement is a timely, specific request that 

the trial court refuses. Id. 
4

In most instances, an objection will prevent the occurrence of the prejudicial event, 

and the failure to make a timely, specific objection prevents appellate review. Id. at 70. 

The request for an instruction that the jury disregard an objectionable occurrence is 

essential only when such an introduction could have had the desired effect, which is to 

enable the continuation of the trial by an impartial jury. Id. But if an instruction could 

not have “cured” the error, the only suitable remedy is a mistrial, and a motion for a mistrial 

is the only essential prerequisite to presenting the complaint on appeal. Id. “Mistrial is 

the appropriate remedy when. . . the objectionable events are so emotionally 

inflammatory that curative instructions are not likely to prevent the jury from being unfairly 

prejudiced against the defendant.” Id. at 71.

Accordingly, when a party’s first action is to move for mistrial, the scope of 

appellate review is limited to whether the trial court erred in not taking the most serious 

action of ending the trial; in other words, an event could not have been prevented by 

timely objection or cured by instruction to the jury will not lead an appellate court to 

reverse a judgment on appeal by the party who did not request these lesser remedies in 

the trial court. Id. at 70. Limited as this scope of appellate review may be, such an 

appellate review is available to such a party. Id. 

C. Discussion

Although Liscotti objected and then moved for a mistrial, his objection was neither 

timely nor specific and preserved nothing for appellate review. See id. In evaluating 

Liscotti’s action by first moving for mistrial, we look to the trial court’s action. The trial 

court essentially denied Liscotti’s motion for mistrial by instructing the State to continue 
5

its questioning. The complained-of statement was not so egregious that a timely 

objection or instruction to disregard would not have cured any prejudice. See id. It was 

apparent from previous testimony that Liscotti was the subject of an investigation into 

some offense. Although Patterson testified that he received the computers regarding an 

indecency with a child case, the trial court did not commit error by overruling Liscotti’s 

motion for mistrial. The events testified to were not “so emotionally inflammatory that 

curative instructions” could not have remedied the violation of the motion in limine. Id. 

at 71. We overrule Liscotti’s first issue. 

III. MOTION TO SUPPRESS

By his second issue, Liscotti argued the trial court committed error by denying his 

motion to suppress his statements based on lack of Miranda warnings for the charged 

offense. See Miranda v. Arizona, 384 U.S. 436 (1966).

A. Relevant Background

On appeal, Liscotti argues that his rights were violated because he was only given 

his Miranda rights regarding a continuous sexual assault of a child investigation. See 

Miranda, 384 U.S. at 436. Liscotti argues that he should have been given an additional 

set of Miranda warnings when the law enforcement officers began questioning him 

regarding allegations of child pornography. See id. However, Liscotti did not make this 

argument to the trial court when it heard his motion to suppress. 

During the suppression hearing, the following occurred:

Trial Court: When your client was interrogated in regards to this, is there 

any indication that—did he ever say, “I will talk to you about 

that charge and I won’t talk to you about any other charge. If 

you talk to me about the color of my cat or who I am married 
6

to, I won’t talk to you about it.” 

Was there any indication, “I agree to speak to you about this 

one issue only.”

Liscotti: I do not believe he indicated—I only viewed the edited version, 

so I don’t believe there is any limitations by my client as far as 

consent. 

. . . . 

Trial Court: But your challenge to [the statement’s] voluntariness, as I 

understand it, based on one thing and one thing only, and 

that’s, quote, I am going to call interview by ambush, where 

he got told, “You are under arrest for this and I want to talk to 

you about that.”

He agreed to talk about that. He didn’t say, “That’s all I will 

ever talk to you about.”

And as a result of that, that’s the basis of your challenge to 

the voluntariness of the statement. Because, if those are the 

facts. . .I will sit here and watch the entire video. . .if those are 

the facts, I will deny your Motion to Suppress, because it 

doesn’t merit–it is not going to merit a decision to find it 

involuntary. That is number one.

Number two, then I will bring the jury in here and they will hear 

the entire video, because now you have challenged–once you 

challenge the voluntariness of the statement and you ask me 

to make a decision, the jury has to make the same decision. 

. . . . 

Liscotti: That is not my choice to present it to the jury, Your Honor.

What I would like to do, is proffer the consent form and the 

interview in its entirety as a proffer of evidence into the record 

and leave it up to the appellate court to decide whether I have 

an appeal on the issue, Your Honor. 

Chief Rick McLester of the Fulton Police Department testified. He stated he interviewed 

Liscotti along with three members of federal law enforcement agencies. Chief McLester 
7

explained he gave Liscotti a form with his rights on it, Liscotti initialed and agreed to waive 

his rights, and at no point during the interview did Liscotti refuse to answer questions or 

withdraw his consent. Liscotti also testified during the suppression hearing. Liscotti 

stated that he understood that he waived his right to remain silent and that he felt he had 

to tell “his side of the story.” Following the testimony, Liscotti asked the trial court to 

suppress the statement on the “grounds that the procedural safeguards weren’t sufficient 

to secure the privilege against self-incrimination.” Liscotti also claimed that “the 

statements were acquired illegally based on–because they weren’t waived knowingly, 

intelligently and voluntarily, Your Honor. They were more coerced.”

The trial court clarified that now Liscotti was raising an article 38.22 argument as 

well and denied Liscotti’s motion to suppress regarding the voluntariness of his statement. 

Liscotti agreed that he does not want the issue of voluntariness submitted to the jury.1 

See TEX. CODE CRIM. PROC. ANN. art. 38.22 (West, Westlaw through 2017 C.S.). 

B. Analysis

1. Standard of Review

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

standard. Gonzalez v. State, 501 S.W.3d 283, 285 (Tex. App.—Corpus Christi 2016, no 

pet.). We give the trial court almost complete deference in its determination of historical 

facts, especially if they are based on an assessment of credibility and demeanor. Id. 

We afford the trial court the same deference on its rulings on the application of the law to 

questions of fact and to mixed questions of law and fact if resolution of those questions 

 

1

 During the interview, Liscotti discussed additional extraneous offenses. The State created a 

redacted version of the interview to be played before the jury where those discussions were removed. 
8

depends on an evaluation of credibility and demeanor. Id. However, for mixed 

questions of law and fact that do not fall within that category, a reviewing court conducts 

a de novo review. Id. 

Where a trial judge does not enter findings of fact, like this case, a reviewing court 

must “view the evidence in the light most favorable to the trial court’s ruling and assume 

that the trial court made implicit findings of fact that support its ruling as long as those 

findings are supported by the record.” Wiede v. State, 214 S.W.3d 17, 25 (Tex. Crim. 

App. 2007). 

2. Applicable Law and Discussion

Article 38.22 of the code of criminal procedure lays out the procedure to be 

employed when taking an oral statement. See TEX. CODE CRIM. PROC. ANN. art. 38.22, § 

3. The requirements of article 38.22 state that oral statements are not admissible unless 

they meet certain requirements. See id. Among those requirements is that the accused 

be given his rights and he knowingly, intelligently, and voluntarily waives those rights. 

See id. at § 3(a)(2). 

After reviewing the interrogation video, the trial court found that Liscotti was given

and understood his rights, and knowingly, intelligently, and voluntarily waived them. 

Because we defer to the trial court’s determinations regarding credibility of the witnesses 

presented at a motion to suppress hearing, we view the evidence in the light most 

favorable to the ruling. See Wiede, 214 S.W.3d at 25. 

To determine if Miranda warnings are sufficient, we look to the totality of the 

circumstances regarding the interrogation. See Herrera v. State, 241 S.W.3d 520, 526 
9

(Tex. Crim. App. 2007); see also Delao v. State, 235 S.W.3d 235, 239 (Tex. Crim. App. 

2007) (finding that a determination of a statement’s voluntariness is based on the totality 

of the circumstances). A statement may be deemed “involuntary” under three different 

theories: (1) failure to comply with article 38.22, section 6—general voluntariness; (2) 

failure to comply with the dictates of Miranda as codified and expanded in article 38.22, 

sections 2 and 3 (the Texas confession statute); or (3) failure to comply with due process 

because the statement was not freely given as a result of coercion, improper influences, 

or incompetency. See Oursbourn v. State, 259 S.W.3d 159, 169 (Tex. Crim. App. 2008); 

see also Holt v. State, No. 05-14-00914-CR, 2016 WL 3018793, at *7 (Tex. App.—Dallas

May 18, 2016, pet. ref’d.). We do not find that any of the theories apply. Liscotti was 

aware of his rights, voluntarily waived those rights, and freely spoke to all the law 

enforcement officers present. 

Although Liscotti also argues on appeal that he should have been given his 

Miranda warnings each time a separate offense was discussed, he presents this Court 

with no authority supporting that assertion. Instead, Liscotti only argues that article 

38.22, section 3 was not followed and therefore, his statements regarding child 

pornography should be suppressed. We hold the dictates of article 38.22, section 3 were 

complied with by the law enforcement officers involved and the trial court properly found 

Liscotti knowingly, intelligently, and voluntarily waived his rights. See TEX. CODE CRIM.

PROC. ANN. art. 38.22, § 3. 

We overrule Liscotti’s second issue.
10

IV. CONCLUSION

We affirm the judgment of the trial court. 

GINA M. BENAVIDES,

Justice

Do not publish.

TEX. R. APP. P. 47.2(b).

Delivered and filed the

29th day of August, 2018.