Benton, Larry Wayne

Opinion

90-?-/5

3RIGINAL

-•^ M-/*-r>* * ^ - C f?

CGII3Y OF CRIMINAL APPEALS SEP 18 2015

__ __ FILED IN V /?& S&nK&Z: &^ X?Z^^-^mi 0F CRIMINAL APPEALS £&?&&*-*->&£- ) SEP 18 20'5 Abe) Acosta, Clerk

H

<T(/ 'hg-TPT^isr— d?-^ £?-*> A-F~ /*S CLw*ss>i£r .^&-

§

~~7~?2s<&zi- d^^x^r" ^Tfac^Jh /^7hz^ SC/^<£&3S^t>

07)

/%/^pt^^ \J /ht/-2 . 394-tS? 4~*>£ /g) S*r*h^BoW/ tA C/^^/^ 5~1( L/S31?/ 3^^ £2) C.o2>s^ :

^P 3g^ 2-g. ^ £,\

Q''v)

Of^ C^/HPt^>

J2-&S3 s&- crz^S y^^^ny^^^^ *? £=^^u^y

sM^Pv^— ^7*^ S*^0&^&&/&*~£'

C'lv)

/??T?/2y*>&3> ~T~y^&> -r-^y^H^ d^zyi^P^ cr^2>^-- yn^^ty^— ^2^ C^ty^y^-y~ /ytP /9-ytJ /y?uy>t/g~

Pyf-^&h/ <Tcy>y'^' A& c£Zl&^ S, B^tis?-&a)

G^rZ^rJ^^ r&-rZ- '<~&:r>J^&*J.

"T/^gr //j^t* (Zd>cy*^r- jy^ ^r^

^^/2>Sc5>^ <U^y*?-^ yn/o^^~ S?^nP /Z-^^S^iEz

w\

U/yyyy*%Cr7p^ ^P>yyz^r~' cC^y^ \y^y&-T£> y^^Z-^y7. ZPky~ d^&-7f yo a^r- y? E /zlsty€2-LcyyJ IT, /t pttr^S-&^>ty /&-?&-^> g&^rtJ * (0y^ y&<2~<L- /xt^S <1jP^j> S?y-7 v~Zy /<L/y^&^r-^ /p^ \y-?v^^r yZ. ^d^^y^r~zS' y&-^^ y&&&r- yZ&=yp£> 7^&> £> ^yz^^^^xy-pr- y?^u> yr->$yzS~ ty/hi^co. So <0y^Er^&-^> y^^^cy -2><?teT yL/05y— p>yc&-y~^tz-jy-~ ph P^Stz^p**? Pyz&m t2,sy2^~rL&+o*£?^ <^?y£=' £&-7ty ^j&^s&'zP~

"7^^"^" c2^e^ez-&rey p^7&<^£> ^^T^yc^C (lScyr<^y^iv#-7jJ\ tf^t>yrT^sy—^ ~y~-7?-7?^—yny&rtvSbff Z^yf-y^yyypiy^L^ ^y^^^- sty&e*—' y^-y yy^^nP <&-^J "PyV^ iyy^> ^€> , ^P^yp^ yZ^?ZL-4&7C^ Xzyyyp&rep^ 7yy¥-~&-*&-^ yy^^y^^tL^^(^<y^^ t&y' sV-rsr Py^^t^^^ p/O y&yW?y>-*y_ y20=~ y?*?^/ c^d^ c^yty ^v~p t^yy?-^ A/-yy™}> d^yy^z^t) y&-7Sh J"z^Py^e^^^y-^^>

/ p^ SZ^C<e>^) <? &t?i*y^ -^—yP-rW- -?~/&~i5~ S&~fr*r& yt&<hy<y-T&7tyxhjs' -pr*^g*-^ y3y&&i£-€>ytJ Z^y^L? yyyy$L-? Py?oy^&r&^y p&Z-y^0i*y^&

gcp Zyy^y &y^ %*. ^/2^ CPU? ^&yrv^d n \ t? y==y^<z&7L^ Sz^z^i y)*?-^ /^^^^^^^ ^ ^^-^5^ y+?. /^y^ c- xy~&~~&-^ AZ~£^ p^fr^ yy& <ZJ~2y/cy %

C^<fZy CZ/&E& y*J . —r.* ^y /uy/<r~k?- ytf—hZ y P w^sr <^~y

y^Tty-7 /yy/9-^ *>ZEP^y^ y^-y^=i> py^&-7>^-L y-y^f O^^ ts&a+mi-G; & P?^y*^^^^- ^*-*_ 7?yte>xjy^&?^7— ^y~y> P p&i-^ c^^ *? *y7&-^ye-yLZ ® PPyt&t^^yhTj sy- d.0 eye- h yUc^y- ^y^*?-ty& y?-? //£" yy-7p£> ywz> iy^^<^<_<^ y?-?^h ,uy*?-^ 7>&^zy*b

~PyZ^5s'^ p=&-Cjsr&7C.<> uy&o>£-^> <L./?7y<r^ y&-^p /£&79-^&->tZ &&<~^r P^t^^o^J ^-& xyt&7,?iyyz- <y?V^-f^ /y~Z •> p7Z^^Pd~>^ /^-t^-x> g't&EErTP p>&y=>yZ/iy&£> Zy(Z p yy^y7yi/=y6l^>-^^<r- syy/i-ty^', P-<y~ / £ d t-~&7<?-rz- \y-7<y:-7$-sr~ -y~y-y=^ Sxr-&-Tr^~ yn^nSTr-Z' u _r a=Fb / s ^zn^-z^- d^p-g^^r d_ y^^7^~ p7Z&7^\ /&- Pyz<y-&/>y-y?-<-— / ^ V~^7^/2^c^-^^r-^^Wr •£r<y&zyy o7^> £- Pd^Sjy^s s>-^Z ^r-yy^E3 7 ^ ^ ^ yrio-nyiy & y^ yfaZ c9~cy^7C~ ^-jSyy-c^c^p

&yZyy%^i/si)yg^i^xy&~ £Ezy,th-^?ty'c~y^ pT^s^t

&)

""7^5= P^d^jB^^h Pl£^^xi^-S' ^ry^^r~ V~??-tt>e^E> y <> yV& yyyy^-^y ~ir~& y^sP ®~*^P Zy^ y^pp^t^y^^yyv- Uy/fS /&-?> tyy S^Z> Zsy^t-^L- ^^yocZd^^ ~y^~& pyZy& yz.7y-is^y~-- pZyyy^7 P==yz-e>^m p' ytPP^-^-^p-^rhf-ic^pi^Y

/p^ _ CVy^^<r-&~7v) y^y?-*^) yZ-^L^^cy-LyJ S ^yH^TlEry^^Tiy^y-^ /W yV7*tt> cy V~ "7 ~yp^~ ~P>^r=&^y7> y^Py^s- yyyy?-y-^Pyyi/~&-^ ZZZz^yP^- p? p?yh*z*r- (& yzr -p^pP& y^^CZg?^ / yiZtf- PV~~ y^.y^nZ'-T^' y>y?-irs sP? ^ <^y-&yc~ <• ~sr~7~M^zy& y?~7£-^r ^ &rf_^o cy j> p ZZ&B £&*&*?

/^' y^r~&- <ypp& 3£y$s ' <?— ZLe>-ny s v-zyuvv<y-^yy?<~ PSX€/*£r'P Pa/ <r?t7 s" tZ^yt-^tSr, ^g^Z ZPzzy^y?™Zj> y?- 1P • pZ-yZZ^&yzSy? 3 f ^ - yy f <p3£ y3-&5> S-^yn^P^ Scyjeycy \P. C/H-ry~, <£"" cy s 3zr/ 3 i^^.

'yyy^ (PP^ c^^?P^ 7tSf7m^y/ '"

(L&sv'C&?^PZntG- -v^e: V<D c utJrrmtrtyp' 3 •v*-yg^-^yyiJ=^y' r" h^ / &-Z / V -7~K^ p:y^^B OF £-^o G—t C-. yl/o p&/?y£ &<n) / pyy—^H, gzyt $_/'<£-*&^-^-yi^i tyy%

^--AZ C^/L//>yv^fi) ft-s^T, nyyi-. s xyi&^~:^yiyu^^tyy~~^

'plfr&r? Z*) ~^>f-r <? / A> -g vr-yf-rtJ^y^ ft^y? Zj^&ZD^ytyr- (P P@~*Z y-/Z^ UppP^s^ -y^^y^<r7yjyt^ y^y c? Z? 5*V^-*- / *Z *-7iZ+

Q?)

yS /si^pozs'y&t-j^ p~d? /fyycy ocJ yS^ /p-^P^tij^y^ty^y^ y^y^s> cz-yiy&nZ yp~y- <> /Uy/f^e^iyyyiy^-'^ * P yp^>z^ cUyyf-^S A>' O

-7~7P^ yZPy^yy^TC. y?ytf-5>^ yfv-r*7 y9-t>yy&?Z^ ep^ PP" rf-*"P* T>^ (U>cyy^- &y^ PpP&py^s' 3~y/&uc-Z> y'e-v*"' ypyf^ysr pdcJAZb -y-yy^t^^~ -7^^^" -^-yZ^y?^-^ dyS>cyyyj^^ ^cP ^~^ CZj0tz*e^=cj7~ yyZ h&TtZpysTy^ s1<^P>y?>&^&y<&*y/ g?p= yr-&^ ^^y-T^^i^^t^ri^ty^—5*. $>Src^ BP*-&yPpy/t>& 1/ s^a^r-g" "7Z j$uz^><?/ 7£>3

P/^yhy&yZ-

p&7&77f- pyJ p&^-ysF-j-t&yiy' pyp^pz&c^yf&y^ p-^/z^<? <p~yy^~ yL&cy/z^r~ ~7~<& s^-ty g'^r-ypyyiP 'TT^ yS'S'tS^ y^yZ^X<S^yy-^yZi /y-^^-l^yy^'« y9^Ppy^^c^^-^tyy- P^P^-cy^ ^r^^i^" -y-py-e^ P3~vhG~yi^&7>iyy- B^ &&y^x-r^P> S ZS^T- p-^^Zy^ y&-7i/h iy y?-y?s?y-y^£> - ppPP^^y~yf^yF~

y?d c? u< r~~ry?-^ %^ s^yy-^yv^P) y aP /yy% p^P /&/&> J^aZ -y-T^S^ y^v^&?eiyzZy?~V--w'£T P?PP^<l /f^y y- yr-r/^x v^fc^r- y~7<p& (Lcyc/y^y* p^iy&r^Sd^ -y-&~& <T~cP *> g-yrt^nSy^ ypX y^r— P>&zz&* <?> PPP'py*PyO>&-<y&~ sfayb CPy2^ytyy pp-MY yj-ypp yZ^y- ^S»^5^-^ ^* ft/—-" /-* f -yZi? -— .

/_^pftULAP UZ, S eSV-W V

CLg^y-7f?y<z*Hr&~

-&ter7 f^7 &fKt&~ gy Cy

c^ c^W^/ xr*>'<

(Lzpr&riFY yT~^^^~ ~7~yz^ uy®-^~£> ZLy>cy>y<r~

ZV®Tp- ^%c<~o"b^> By pU/c^^; ^t 4- p> L^&^S y-tfrn^) y-7^^: y^-cy+rytsT- /Z€~$cyi/&&^> <&p~ yi p&tnvum) ^F&ZZ

* "JZgL l^?HZy&p kZ ^^hZsr&yty*

&5, yriA^L^ Q^i^7 <

^P ^y&^&y M i%^*y7-&^ (Lttrz&^f^ty -<y-7&^frJ?~~ $• Cepy uyyHZ yr7y&-^t^y==h *7~& /?-pp^yy_^:^>

5?&£piy y^rfrr^^

Z^ys-<^i^yt-*zb CJychy^yrp ^^^z^^z^g" IOCD £pP^V~ yyZyfryP ^cyvr& ^>2^^L 3<Y (ZS^yny^y_ pos*ryht^& Py&&py9-7Z>

X~ rP-— / ) ^ ^ T ^ .

<S<5><hjz> ry?? 3s~y4-

GO

Opinion filed June 18, 2015

kf4PW

In The

ClcUcntf) Court of Appeals No. 11-13-00308-CR

LARRY WAYNE BENTON, Appellant V.

THE STATE OF TEXAS, Appellee

On Appeal from the 91st District Court Eastland County, Texas Trial Court Cause No. 23111

MEMORANDUM OPINION

The jury found Larry Wayne Benton guilty ofthe offense ofcontinuous sexual abuse ofa young child. The trial court assessed punishment and sentenced Appellant to life imprisonment. In his sole issue on appeal, Appellant asserts that the trial court abused its discretion when it overruled his motion to suppress evidence. We affirm.

I. Background and Evidence at Suppression Hearing Jane Doe,1 Appellant's daughter, was eleven years old when she moved with her family and Appellant to Eastland. They eventually moved to Oregon. After they

'The indictment used the pseudonym "Jane Doe" to refer to the victim.

moved to Oregon, Doe alleged that Appellant first had sexual intercourse with her in Eastland, Texas, when she was eleven years old and that the abuse occurred several times. Doe's mother called the police, and Officer Jeremy Sullivan responded to the call.

Officer Sullivan testified that, when he arrived at Appellant's home, he met with Appellant. After an initial visit, Officer Sullivan determined that he could not arrest Appellant because he did not think that any crime had occurred in Oregon. Officer Sullivan asked Appellant whether he would cooperate and give him a statement. Officer Sullivan testified that, even though he had not yet "custodially detained" Appellant, he read Appellant his Miranda2 rights because he "just had a hunch that it was going to lead to something" and because "it's good to get it.. . out in the forefront."

After he had informed Appellant of his Miranda rights, Officer Sullivan turned on the camera audio system in his vehicle, and Appellant acknowledged that Officer Sullivan had read him his Miranda rights and that he understood his rights.3 Appellant subsequently confessed that he had had sexual intercourse with Doe.

Officer Sullivan testified that he asked Appellant whether he was willing to go to the police station to visit more; Appellant voluntarily agreed to go. Officer Sullivan offered Appellant a ride to the police station but explained that, although Appellant was not under arrest nor was he going to jail, police department policy was that all passengers in police vehicles must be handcuffed and placed in the backseat. AppellantacceptedOfficer Sullivan's offer. Officer Sullivanremoved the handcuffs from Appellant when they arrived at the police station.

2See Miranda v. Arizona, 384 U.S. 436 (1966). Officer Sullivan testified that.Oregon law does not require that the person's rights'be read on video. See OR. REV. STAT. ANN. § 133.400 (West, Westlaw through Ch. 275 of the 2015 Reg. Sess.); State v. Avila-Nava, 341 P.3d 714, 719-20 (Or, 2014); cf. TEX. CODE CRIM. PROC. Ann. art. 38.22 (West Supp. 2014).

3Although Appellant and Officer Sullivan cannot be seen in the video, theirvoices canbe heard.

3

After they arrived at the police station, Officer Sullivan took Appellant into an interview room, interviewed him a second time, and recorded that interview. Before he interviewed Appellant, Officer Sullivan told Appellant that he had the right to remain silent; that anything he said could be used against him in a court of law; that he had the right to an attorney; and that, if he could not afford an attorney, one would be appointed to represent him. Officer Sullivan confirmed that Appellant understood his rights. After Officer Sullivan concluded the second interview, he received information from a forensic interviewer who had interviewed Doe. The

forensic interviewer said that Doe had been the victim of sexual abuse by Appellant when they were in a neighboring city. Officer Sullivan subsequently arrested Appellant based on that new information. Appellant filed a motion to suppress all statements made by him to police, which the trial court overruled. He later objected to their admission, and the trial court overruled those objections.

II. Analysis

Appellant contends that Officer Sullivan did not comply with Article 38.22 of the Texas Code of Criminal Procedure because Officer Sullivan did not record, on video, his review with Appellant of Appellant's rights under Miranda in the first interview and because Officer Sullivan did not tell Appellant in either interview that Appellant could terminate the interview at any time. Therefore, Appellant argues that the oral statements on the videos are inadmissible and that the trial court erred

when it admitted the videos. We review a trial court's ruling on a motion to suppress for an abuse of discretion. Balentine v. State, 71 S.W.3d 763, 768 (Tex. Crim. App. 2002). We must view the evidence in the light most favorable to the trial court's ruling. State v. Kelly, 204 S.W.3d 808, 818 (Tex. Crim. App. 2006). We defer to the trial court's findings of historical facts and review de novo the trial court's application of the law. Wiede v. State, 214 S.W.3d 17, 25 (Tex. Crim. App. 2007).

Under Texas law, a statement made by an accused in a custodial interrogation generally cannot be used as evidence against him at his trial unless he was given

4

proper warnings under Article 38.22 and unless he knowingly, intelligently, and voluntarily waived the rights contained in the warnings. Crtm. Proc. art. 38.22. If the statement does not stem from custodial interrogation, the warnings are not required and the statement can be used against the accused at trial. Id. Additionally, Article 38.22 allows for the admission of oral statements obtained as a result of

custodial interrogations in another state if the statements were obtained in compliance with the laws of that state. Id. § 8(1).

Oregon requires that a peace officer advise a person, pursuant to Miranda, "that he or she has a right to remain silent and to consult with counsel and that any statements that the person makes may be used against the person in a criminal prosecution" and obtain a valid waiver before a custodial interrogation. Avila-Nava, 341 P.3d 719-20 (quoting State v. Vondehn, 236 P.3d 691, 699 (Or. 2010)); see also Miranda, 384 U.S. at 444-45. A valid waiver is determined from the totality of the circumstances and consists of a person understanding his rights and voluntarily talking with the interviewer. State v. Meade, 963 P.2d 656, 660 (Or. 1998). Oregon also requires that certain custodial interviews conducted by a peace officer in a law enforcement facility be electronically recorded. See Or. Rev. Stat. Ann. § 133.400.

Appellant contends that he was in custody during both interviews and that Officer Sullivan did not comply with Article 38.22 because he did not record Appellant's rights in the first interview or inform Appellant at either interview that Appellant could terminate the interview at any time. If Appellant was not in custody, the statements are admissible. See Crtm. Proc. art. 38.22. If Appellant was in custody, the statements are admissible if Officer Sullivan complied with Oregon law to obtain the statements. See id. § $(1). , Officer Sullivan read Appellant his rights, according to Oregon law, at Appellant's house and at the police station and made sure that Appellant understood his rights. Appellant voluntarily spoke to Officer Sullivan and complied with his requests. Officer Sullivan electronically recorded the interview at the police station.

5

Officer Sullivan complied with Oregon law to obtain Appellant's statements; therefore, whether Appellant was in custody or not, the statements were admissible pursuant to Article 38.22, section 8(1). See Or. Rev. Stat. Ann. § 133.400; Avila- Nava, 341 P.3d at 719-20. Appellant has not challenged that Officer Sullivan failed to comply with Oregon law or with Miranda; he only challenges the correct application of Article 38.22. We hold that the trial court did not abuse its discretion when it admitted into evidence the videos that contained Appellant's statements. See Balentine, 71 S.W.3d at 768. We overrule Appellant's sole issue on appeal.

III. This Court's Ruling

We affirm the judgment of the trial court.

MIKE WILLSON

JUSTICE

June 18, 2015

Do not publish. See Tex. R. App. P. 47.2(b). Panel consists of: Wright, C.J., Willson, J, and McCall.4

Bailey, J., not participating.

4Terry McCall, Retired Justice, Court of Appeals, 11th District of Texas at Eastland, sitting by assignment.