In the Court of Appeals Second Appellate District of Texas at Fort Worth ___________________________
No. 02-19-00099-CR ___________________________
BRYAN ARRIAGA, Appellant
V.
THE STATE OF TEXAS
On Appeal from the 432nd District Court Tarrant County, Texas Trial Court No. 1523268D
Before Sudderth, C.J.; Womack and Wallach, JJ. Memorandum Opinion by Justice Womack MEMORANDUM OPINION
I. INTRODUCTION
Appellant Bryan Arriaga appeals his conviction and forty-five-year sentence for
aggravated robbery with a deadly weapon (a firearm). In eight points, Arriaga argues
(1) that the State failed to provide him with proper notice that it was seeking to
enhance the punishment range in this case, (2) that the enhancement statute that
allows for some prior juvenile adjudications to be used to enhance punishment
violates the Eighth Amendment’s prohibition against cruel and unusual punishment,
(3) that the trial court imposed his sentence based on an improper sentencing range,
(4) that the trial court considered evidence outside the record when it imposed its
sentence, (5) that the trial court abused its discretion by admitting certain photographs
and (6) by admitting his videotaped confession, (7) that the trial court erred by failing
to instruct the jury on the voluntariness of his confession, and (8) that the trial court
failed to file written findings of fact and conclusions of law regarding the
voluntariness of his confession. We will affirm.
II. BACKGROUND
The primary facts of this case are not in dispute. Thus, we will address the
factual background only briefly to give context to Arriaga’s points on appeal. In
November 2017, Arriaga and his brother lured Jacob Bateman to a park in Arlington
under the guise of purchasing Bateman’s PlayStation 4 gaming system. Once
Bateman arrived at the park, Arriaga and his brother approached him, and Arriaga
2 pointed a gun at Bateman as Arriaga’s brother knocked Bateman’s phone out of his
hand and then retrieved the PlayStation 4 from Bateman’s vehicle. After grabbing the
PlayStation 4, Arriaga’s brother ran away. Arriaga then shot Bateman twice, both
times in the abdomen area, and one of the bullets grazed a finger on Bateman’s right
hand before lodging in his side. Arriaga fled after the shooting.
Emergency personnel soon transported Bateman to the hospital where he
underwent surgery. Bateman survived the shooting even though surgeons were
unable to remove the bullets from his body. Police later arrested Arriaga, and while in
custody, he made a videotaped confession.
Later, on February 9, 2018, the State charged Arriaga with aggravated assault
with a deadly weapon (a firearm). On May 17, 2018, the State filed a “Notice of
Intent to Seek Punishment Enhancement.” The notice stated,
REPEAT OFFENDER NOTICE: AND IT IS FURTHER PRESENTED TO SAID COURT THAT PRIOR TO THE COMMISSION OF THE OFFENSE OR OFFENSES SET OUT ABOVE, THE DEFENDANT WAS FINALLY CONVICTED OF THE FELONY OFFENSE OF BURGLARY OF A HABITATION, IN THE 323RD DISTRICT COURT OF TARRANT COUNTY, TEXAS, IN CAUSE NUMBER 103070-J, ON THE 6TH DAY OF JULY, 2016[.]
On February 21, 2019, Arriaga filed a “Motion to Declare Tex. Pen. Code 12.42(f)
Unconstitutional and to Quash ‘Brooks’ Notice.” In the motion, Arriaga argued that
the State had served him with notice that it was intending to seek enhancement of the
penalty range for aggravated assault with a deadly weapon based on a prior juvenile
3 adjudication that occurred when he was sixteen years old and that the enhancement
violated the Eighth Amendment’s prohibition against cruel and unusual punishment.
At trial, as the State requested to introduce the videotaped confession, Arriaga
moved to suppress on the theory that the confession was made involuntarily. After
conducting the suppression hearing outside the presence of the jury, the trial court
denied Arriaga’s suppression motion and made oral findings of fact and conclusions
of law, which the court reporter recorded. The State introduced and published for the
jury Arriaga’s confession.
Ultimately, a jury found Arriaga guilty of aggravated assault with a deadly
weapon (a firearm). At the punishment phase, the trial court heard punishment
evidence, and Arriaga pleaded “true” to the State’s enhancement allegation. The trial
court sentenced Arriaga to forty-five years’ confinement. This appeal followed.
III. DISCUSSION
Because Arriaga’s first three points address issues regarding the sentencing
range being elevated in this case based on a prior juvenile adjudication, we will address
these three points together. We will then address Arriaga’s remaining points in turn.
A. The Law Pertaining to Juvenile Enhancements
In 1995, the Legislature provided that under certain circumstances a felony
adjudication in juvenile court can be used as a prior felony conviction for
enhancement of punishment in later criminal proceedings. See Tex. Penal Code Ann.
§ 12.42(f); Tex. Fam. Code Ann. § 51.13(d). The provision applies only if the juvenile
4 received a commitment or sentence to the Texas Youth Commission for the felony
adjudication. See Tex. Penal Code Ann. § 12.42(f); Tex. Fam. Code Ann. § 51.13(d).
It does not apply if the felony adjudication was for a state jail felony. See Tex. Penal
Code Ann. § 12.42(a).
The juvenile judgment against Arriaga for burglary of a habitation was a
conviction of a second-degree felony for enhancement purposes. See Tex. Penal Code
Ann. § 30.02(a)(1), (c)(2). Therefore, when the trial court found the alleged juvenile
enhancement to be true, the otherwise first-degree felony of aggravated assault with a
deadly weapon (carrying with it a sentencing range of not more than 99 years or less
than 5 years) became a repeat-first-degree-felony offense with a punishment range of
imprisonment for life or a term of not more than 99 years or less than 15 years. See
Tex. Penal Code Ann. §§ 12.32, 12.42(c)(1), 29.03.
1. Notice of Enhancement
In part of his first point, Arriaga argues that the State failed to provide proper
notice of his former juvenile adjudication for burglary of a habitation, and thus the
trial court erred by enhancing the range of punishment on his aggravated robbery
conviction.1 We disagree.2
1 Even though Arriaga cites authority regarding cases involving habitual- allegation enhancements, this case involves a repeat allegation and not a habitual allegation. Compare Tomlin v. State, 722 S.W.2d 702, 705 (Tex. Crim. App. 1987) (addressing issue of habitual-offender notice), with Crawford v. State, 496 S.W.3d 334, 344 (Tex. App.—Fort Worth 2016, pet. ref’d) (addressing issue of repeat-offender notice).
5 The right to notice of the State’s intention to use a prior conviction for
enhancement purposes is rooted in due process. Villescas v. State, 189 S.W.3d 290, 293
(Tex. Crim. App. 2006). Under a due process analysis, the issue is “whether appellant
received sufficient notice of the enhancements so that he had an opportunity to
prepare a defense to them.” Pelache v. State, 324 S.W.3d 568, 577 (Tex. Crim. App.
2010). When the State seeks to enhance a defendant’s punishment with evidence of a
prior conviction, “‘[t]he accused is entitled to a description of the judgment of former
conviction that will enable him to find the record and make preparation for a trial of
the question of whether he is the named convict therein. . . . and if possible show
there is a mistake in identity, or that there was no final former conviction or the like.’”
Villescas, 189 S.W.3d at 293 (quoting Hollins v. State, 571 S.W.2d 873, 875 (Tex. Crim.
App. 1978)). Allegations of a prior conviction for enhancement purposes should
include the court in which the conviction was obtained, the time of the conviction,
and the nature of the offense. See Cole v. State, 611 S.W.2d 79, 80 (Tex. Crim. App.
[Panel Op.] 1981); Hollins, 571 S.W.2d at 876. Prior convictions used as
enhancements must be pled in some form, but they need not be pled in the
The State argues that Arriaga has failed to preserve his sentencing argument 2
for our review. Given the Texas Court of Criminal Appeals’ recent unpublished opinion in Hestand v. State, No. PD-0513-19, 2019 WL 5784183, at *1 (Tex. Crim. App. Nov. 6, 2019) (not designated for publication), and given the similarities between Hestand and this case, we will address the issue on the merits.
6 indictment—although it is permissible and perhaps preferable to do so. Brooks v.
State, 957 S.W.2d 30, 34 (Tex. Crim. App. 1997).
Here, the State’s enhancement notice indicated the court where Arriaga was
adjudicated for burglary of a habitation. The enhancement notice also stated the date
on which the conviction occurred, and it identified the conviction by its trial court
cause number. Thus, the State satisfied its burden of informing Arriaga of the court
of conviction, the time of conviction, and the nature of the offense. See Cole,
611 S.W.2d at 80; see also Hudson v. State, 145 S.W.3d 323, 326 (Tex. App.—Fort
Worth 2004, pet. ref’d) (“Here, the State’s notice, which included evidence of three
prior felony convictions, each specified by cause number, classification of offense,
county of conviction, and date of conviction, was a sufficient pleading that gave
notice of the prior convictions that would be used for enhancement of punishment.”).
Arriaga argues that the State did not properly notify him because the
enhancement notice stated that the enhancement felony had been committed “prior
to the commission of the offense or offenses set out above,” and the notice itself did
not contain a description of “the offense . . . set out above.” But as the State points
out, the only logical offense “set out above” was the charge of aggravated robbery
with a deadly weapon that Arriaga was facing in this case. Indeed, the State filed its
notice under the cause number associated with the aggravated robbery charge, and the
trial court clerk made the notice part of the clerk’s record. Furthermore, Arriaga, in
his motion to quash the enhancement notice, was able to identify the adjudication
7 with enough specificity to challenge the constitutionality of the statute that allowed
the use of the prior adjudication. Given that Arriaga was informed enough to attack
the use of the prior adjudication, the State adequately informed Arriaga of the prior
adjudication which “enable[d] him to find the record and make preparation for a trial
on the question of whether he [was] the named convict therein.” Villescas, 189 S.W.3d
at 293.
Additionally, this court has already held that an enhancement notice with
substantially similar language to the language found in the enhancement notice in this
case adequately notified the defendant of the prior conviction. Meyer v. State, No. 02-
15-00217-CR, 2016 WL 7487756, at *1 (Tex. App.—Fort Worth Dec. 30, 2016, pet.
ref’d) (mem. op., not designated for publication). In Meyer, the State’s enhancement
notice provided,
Comes now the State of Texas, by and through her Assistant Criminal District Attorney, Zane Reid, and files this notice of intention to enhance the punishment range to a 90 day minimum jail sentence using a prior Felony conviction or prior Class A Misdemeanor conviction, pursuant to [S]ection 12.43 of the Texas Penal Code, and would show the court the following:
I.
Before the commission of the offense alleged above:
1. The Defendant was convicted of Criminal Trespass (of a habitation- class A) on or about July 12, 2000 in Denton County, Texas in Cause No. 2000–02145–B.
Id. at *2.
8 The State’s enhancement notice in Meyer was not part of the State’s charging
instrument, and the “offense alleged above” referenced the State’s charging
instrument wherein the State had charged Meyer with driving while intoxicated. Id.
Similar to our holding in Meyer, we conclude that the use of the language “the offense
. . . set out above” in the State’s notice enhancement in this case did not prevent
Arriaga from being able to identify the adjudication that the State was alleging as an
enhancement and that the State gave Arriaga proper notice of its intention to use the
prior adjudication. We overrule this portion of Arriaga’s first point.
In the remainder of his first point, Arriaga argues that the evidence is
insufficient to support the enhancement. We disagree.
The State has the burden of proof to show that any prior conviction used to
enhance a sentence was final under the law and that the defendant was the person
previously convicted of that offense. Flowers v. State, 220 S.W.3d 919, 922 (Tex. Crim.
App. 2007). The State’s obligation in this regard is to make a prima facie showing that
the prior conviction used for enhancement is valid. This may be done by introducing
the prior judgment and sentence. The burden then shifts to the defendant to prove
that it is void and unavailable for enhancement. Johnson v. State, 583 S.W.2d 399, 403
(Tex. Crim. App. [Panel Op.] 1979). If, however, a defendant pleads “true” to the
enhancement paragraph, the State’s burden of proof is satisfied and a defendant
cannot complain on appeal that the evidence is insufficient to support the
9 enhancement. See Wilson v. State, 671 S.W.2d 524, 525 (Tex. Crim. App. 1984); Lugo v.
State, 299 S.W.3d 445, 455–56 (Tex. App.—Fort Worth 2009, pet. ref’d).
In this case, both the judgment and the reporter’s record reflect that Arriaga
pleaded “true” to the enhancement allegation concerning his prior adjudication for
burglary of a habitation. Thus, Arriaga is foreclosed from complaining on appeal that
the evidence is insufficient to support the enhancement. See Wilson, 671 S.W.2d at
526 (reasoning that a plea of “true” constitutes sufficient evidence to support an
enhancement allegation). We overrule the remainder of Arriaga’s first point.
2. The Constitutionality of Section 12.42(f)
In his second point, Arriaga argues that the “trial court erred in sentencing
[him] based [on] a sentencing range determined by consideration of a prior juvenile
adjudication.” Specifically, Arriaga contends that Texas Penal Code Section
12.42(f)—the statute that delineates certain juvenile adjudications that result in the
juvenile being committed to certain correctional facilities be treated as final felony
convictions for enhancement purposes—is unconstitutional in that it violates the
Eighth Amendment’s prohibition against cruel and unusual punishment. U.S. Const.
Amend. VIII. Although Arriaga does not use the term, it is clear that he is making a
facial challenge to the constitutionality of Section 12.42(f).
Citing the United States Supreme Court’s decisions in Miller v. Alabama,
567 U.S. 460, 132 S. Ct. 2455 (2012), and Graham v. Florida, 560 U.S. 48, 130 S. Ct.
2011 (2010), Arriaga contends that this court should hold Section 12.42(f)
10 unconstitutional because juveniles possess a “diminished culpability and greater
prospects for reform [and] are less deserving of the most severe punishments” and
that “children are constitutionally different from adults for purposes of sentencing.”
We note initially that while we agree that Miller and Graham both acknowledge
that juveniles are considered differently than adults for sentencing purposes, Miller
and Graham operate only to prohibit the imposition of confinement for life without
the possibility of parole on offenders who were under the age of eighteen when their
crimes were committed. Miller, 567 U.S. at 471, 132 S. Ct. at 2463; Graham, 560 U.S.
at 55, 130 S. Ct. at 2019; see also Roper v. Simmons, 543 U.S. 551, 552, 125 S. Ct. 1183,
1185 (2005) (applying similar rationale in holding that imposing the death penalty on
juveniles is unconstitutional). In those cases, the Supreme Court “likened life without
parole for juveniles to the death penalty.” Miller, 567 U.S. at 470, 132 S. Ct. at 2463.
And the Supreme Court had previously stated that the “penalty of death differs from
all other forms of criminal punishment, not in degree but in kind. It is unique in its
total irrevocability.” Harmelin v. Michigan, 501 U.S. 957, 995–96, 111 S. Ct. 2680, 2702
(1991) (quoting Furman v. Georgia, 408 U.S. 238, 306, 92 S. Ct. 2726, 2760 (1972)
(Stewart, J., concurring)). In contrast, Texas’s enhancement scheme is not the type of
unique and irrevocable type of punishment that the Supreme Court addressed in
either Miller or Graham. See Gamble v. State, No. 01-06-01028-CR, 2008 WL 2548512,
at *8 (Tex. App.—Houston [1st Dist.] June 26, 2008, pet. ref’d) (mem. op., not
11 designated for publication) (reasoning that the concerns in Roper are not present in
Texas’s enhancement scheme).
When an appellate court reviews the constitutionality of a statute, it is to
presume the statute is valid and that the Legislature has not acted unreasonably or
arbitrarily in enacting it. Ex parte Flores, 130 S.W.3d 100, 106 (Tex. App.—El Paso
2003, pet. ref’d). The burden rests on the appellant to establish the statute as
unconstitutional. Id. Moreover, as an intermediate appellate court, we must follow
binding precedent of the Texas Court of Criminal Appeals. McKinney v. State,
177 S.W.3d 186, 192 (Tex. App.—Houston [1st Dist.] 2005), aff’d, 207 S.W.3d 366
(Tex. Crim. App. 2006).
In other contexts, the Court of Criminal Appeals has long upheld the
enhancement statute against all constitutional challenges, including several cruel and
unusual punishment claims. See Thomas v. State, 543 S.W.2d 645, 647 (Tex. Crim. App.
1976); Armendariz v. State, 529 S.W.2d 525, 527 (Tex. Crim. App. 1975); Thrash v. State,
500 S.W.2d 834, 836 (Tex. Crim. App. 1973). Arriaga cites to no cases holding that
the use of a juvenile adjudication as an enhancement is unconstitutional or explaining
why the reasoning in Miller or Graham applies in a non-life-without-parole context. In
short, Arriaga has failed to show that the use of a juvenile adjudication statutorily
defined as a final felony conviction for enhancement purposes violates the Eighth
Amendment. See Gamble, 2008 WL 2548512, at *8 (declining to hold Section 12.42(f)
12 unconstitutional where appellant cited no cases holding that the use of a juvenile
adjudication as an enhancement violated Supreme Court precedent).
Arriaga argues that under United States v. Tighe, 266 F.3d 1187, 1193 (9th Cir.
2001), his prior juvenile adjudication cannot be treated as a prior conviction for
enhancement purposes because he was not entitled to a jury trial when he was
adjudicated delinquent.3 But Arriaga’s reliance on Tighe is misplaced. Tighe grappled
with the question of whether “prior juvenile adjudications, which do not afford the right to
a jury trial” can be considered for enhancement purposes. Id. (emphasis added).
Attempting to make his argument fit under Tighe, Arriaga argues that he was
not entitled to a jury and cites Texas Family Code Section 54.04(a) and Texas Penal
Code Section 12.42(f). Tex. Fam. Code Ann. § 54.04(a); Tex. Penal Code Ann.
§ 12.42(f). Section 54.04(a) states that “[t]here is no right to a jury at the disposition
hearing . . . .” Tex. Fam. Code Ann. § 54.04(a). Section 12.42(f) states that “an
adjudication by a juvenile court . . . is a final felony conviction.” Tex. Penal Code Ann.
In his opening brief, Arriaga cited Tighe for the proposition that “[j]uvenile 3
adjudications” that do not afford a jury trial and a beyond-a-reasonable doubt burden of proof cannot be used as a “prior conviction” for enhancement purposes. As discussed below, in his reply brief, Arriaga argues that we are to look at the fact that he was not entitled to a jury trial at the “disposition” phase when addressing his claim that Section 12.42(f) is unconstitutional. As noted, Arriaga cites no authority for this proposition. There is, however, authority to support that the lack of right to a jury during disposition phase of juvenile proceedings is constitutional. See Murphy v. State, 860 S.W.2d 639, 643 (Tex. App.—Fort Worth 1993, no pet.) (reasoning that no right to a jury at modified disposition phase of juvenile proceeding was constitutional “because the juvenile whose disposition is being modified was already given the opportunity for a jury trial when the juvenile was adjudicated delinquent”).
13 § 12.42(f) (emphasis added). Arriaga, without citing any authority to support the
proposition, argues that because of these two statutes, it is the disposition phase, not
the adjudication phase, of the juvenile proceedings that determines whether the
juvenile adjudication can be considered for enhancement purposes. But Arriaga’s
dependence on the interplay between these two statutes is improper because under
Texas Family Code Section 54.03(a), Arriaga was entitled to a jury at his adjudication
hearing that statutorily must have taken place prior to the disposition hearing. See id.
§§ 54.03(a) (“At the conclusion of the adjudication hearing, the court or jury shall find
whether or not the child has engaged in delinquent conduct or conduct indicating a
need for supervision.”), 54.04(a) (“The disposition hearing shall be separate, distinct,
and subsequent to the adjudication hearing.”).
Indeed, the record clearly demonstrates that when Arriaga was adjudicated
delinquent for having burglarized a habitation, he was afforded a hearing where he
chose to waive his right to a jury trial. Thus, Tighe simply does not apply to the facts
of this case. We overrule Arriaga’s second point.
3. Sentencing Range
In his third point, which Arriaga admits is predicated on this court sustaining
one of his first two points, he argues that the trial court considered the incorrect range
of punishment and that without enhancement, the minimum sentence was five years
and not fifteen. Because we have overruled both of Arriaga’s first two points, we
overrule his third point as well.
14 B. The Admissibility of Certain Evidence
In his fourth point, Arriaga argues that the trial court abused its discretion by
allowing the State to introduce two pictures of Bateman’s injuries that were taken by
Bateman’s friends at the hospital and an x-ray. One of the pictures is of Bateman’s
stomach with surgical incisions, and the other picture depicts bullet holes in the side
of his stomach. The x-ray is of Bateman’s hand, including the finger that was hit by
one of the bullets Arriaga fired. Arriaga contends that the probative value of these
photographs was substantially outweighed by the danger of unfair prejudice, violating
evidentiary Rule 403. Tex. R. Evid. 403.
We review a trial court’s ruling on the admission of evidence under an abuse of
discretion standard. Shuffield v. State, 189 S.W.3d 782, 793 (Tex. Crim. App. 2006);
Powell v. State, 63 S.W.3d 435, 438 (Tex. Crim. App. 2001); Montgomery v. State,
810 S.W.2d 372, 391 (Tex. Crim. App. 1991). We will uphold a trial court’s
evidentiary ruling when it is within the zone of reasonable disagreement. Torres v.
State, 71 S.W.3d 758, 760 (Tex. Crim. App. 2002); Powell, 63 S.W.3d at 438.
Additionally, we will uphold the trial court’s ruling on the admission of evidence if the
ruling was proper under any legal theory or basis applicable to the case. Martinez v.
State, 91 S.W.3d 331, 336 (Tex. Crim. App. 2002).
Under Rule 403, a trial court may exclude relevant evidence if its probative
value is substantially outweighed by the danger of unfair prejudice, confusion of the
issues, or misleading the jury or by considerations of undue delay or needless
15 presentation of cumulative evidence. Tex. R. Evid. 403; see Young v. State, 283 S.W.3d
854, 874 (Tex. Crim. App. 2009). Rule 403 favors admission of relevant evidence and
carries a presumption that relevant evidence will be more probative than prejudicial.
Hayes v. State, 85 S.W.3d 809, 815 (Tex. Crim. App. 2002). Evidence is unfairly
prejudicial when it has an undue tendency to suggest an improper basis for reaching a
decision. Reese v. State, 33 S.W.3d 238, 240 (Tex. Crim. App. 2000). When we review
a trial court’s determination under Rule 403, we reverse the trial court’s judgment
“rarely and only after a clear abuse of discretion.” Mozon v. State, 991 S.W.2d 841, 847
(Tex. Crim. App. 1999) (quoting Montgomery, 810 S.W.2d at 392).
Photographs generally are admissible if verbal testimony of the matters
depicted in the photographs is also admissible as long as their probative value is not
outweighed by any unfairly prejudicial effect.4 Potter v. State, 74 S.W.3d 105, 112 (Tex.
App.—Waco 2002, no pet.). In reviewing a trial court’s ruling on the admissibility of
photographic evidence, we consider not only the general Rule 403 factors—the
probative value of the evidence; the potential to impress the jury in some irrational,
yet indelible, way; the time needed to develop the evidence; and the proponent’s need
for the evidence—but also the following nonexclusive list: the number of exhibits
4 As other courts have done, we treat an x-ray as a type of photograph. See Jones v. State, 111 S.W.3d 600, 607 (Tex. App.—Dallas 2003, pet. ref’d) (“For the purposes of their admission, x-rays are treated as photographs.”); Hall v. State, 829 S.W.2d 407, 409 (Tex. App.—Waco 1992, no pet.) (reasoning that the definition of photographs under prior rules of evidence included still photographs, x-rays, video tapes, and motion pictures).
16 offered, their gruesomeness, their detail, their size, whether they are black and white
or color, whether they are close-up shots, whether the body is naked or clothed, the
availability of other means of proof, and other circumstances unique to the individual
case. Erazo v. State, 144 S.W.3d 487, 489 (Tex. Crim. App. 2004); King v. State,
189 S.W.3d 347, 355 (Tex. App.—Fort Worth 2006, no pet.).
Here, we have reviewed the complained-of exhibits, and it was well within the
zone of reasonable disagreement for the trial court to admit them. Indeed, the
exhibits were introduced as Bateman testified about his injuries; thus, the probative
value of the exhibits was strong. See Ramirez v. State, 815 S.W.2d 636, 647 (Tex. Crim.
App. 1991) (holding that if verbal testimony of matters depicted in a photograph is
admissible, generally so is the photograph itself). While the three exhibits do show
the extent of Bateman’s injuries, there is nothing particular about them that would
potentially impress the jury in some irrational, yet indelible, way. The time needed to
develop this evidence was small given that the exhibits were introduced as Bateman
testified. And the State’s need for the evidence was strong given that the State bore
the burden of proving that Arriaga had used a gun in a manner capable of causing
death or serious bodily injury. See Davis v. State, 533 S.W.3d 498, 508 (Tex. App.—
Corpus Christi–Edinburg 2017, pet. ref’d) (“When the State alleges the use of a deadly
weapon, it must prove beyond a reasonable doubt that the weapon alleged was used in
a manner capable of causing death or serious bodily injury.”).
17 Furthermore, the State only introduced a total of four exhibits as Bateman
testified, the two pictures that Arriaga now complains about and two x-rays, one of
which Arriaga is complaining about. There is nothing gruesome about the x-ray. And
although the pictures of the bullet wounds and surgical site are somewhat gruesome,
“they portray no more than the gruesomeness of the injuries inflicted by” Arriaga.
Williams v. State, 301 S.W.3d 675, 693 (Tex. Crim. App. 2009). The x-ray and the
complained-of photographs are black and white, relatively small in size, and not of
particularly high quality, and thus the details are minimal. And while all three exhibits
are close-up views of the injuries, either externally or internally, there is nothing
particularly “naked” about the three exhibits. We conclude that the trial court did not
abuse its discretion by admitting the complained-of exhibits. We overrule Arriaga’s
fourth point.
C. Arriaga’s Sentence
In his fifth point, Arriaga argues that the trial court based his sentence “at least
in part on facts that do not appear in evidence.” Arriaga takes issue with the trial
court’s statement, made just prior to pronouncement of his sentence, that Arriaga had
been “threatening the police” throughout his years of involvement in the criminal
justice system. The State argues that Arriaga has failed to preserve this issue for our
review. We agree with the State.
Ordinarily, to preserve an issue for appellate review, an appellant must have
first raised the issue in the trial court. Tex. R. App. P. 33.1(a); see also Gillenwaters v.
18 State, 205 S.W.3d 534, 537 (Tex. Crim. App. 2006) (discussing Rule 33.1). A
sentencing issue may be preserved by objecting at the punishment hearing or when
the sentence is pronounced. See, e.g., Idowu v. State, 73 S.W.3d 918, 923 (Tex. Crim.
App. 2002) (holding that appellant failed to preserve error as to restitution amount by
failing to object at the punishment hearing to amount of restitution sought by the
prosecution); Russell v. State, 341 S.W.3d 526, 527–28 (Tex. App.—Fort Worth 2011,
no pet.) (reasoning that appellant failed to preserve Eighth Amendment complaint
when he did not object at sentencing). In some instances, an appellant may preserve a
sentencing issue by raising it in a motion for new trial. See, e.g., Bitterman v. State,
180 S.W.3d 139, 142–43 (Tex. Crim. App. 2005) (holding appellant preserved
sentencing issue raised for first time in motion for new trial).
The requirement that an objection be raised in the trial court assumes that the
appellant had the opportunity to raise it there. See Hardeman v. State, 1 S.W.3d 689,
690 (Tex. Crim. App. 1999) (reasoning that appellant did not allege that he did not
have an opportunity to object when sentence was pronounced and so failed to
preserve error); Issa v. State, 826 S.W.2d 159, 161 (Tex. Crim. App. 1992) (permitting
appellant to raise his objection for the first time in a motion for new trial since
“appellant had no opportunity to object to the trial court’s action until after that
action was taken”). Thus, when an appellate court holds that error has not been
preserved, it will often recite the times at which the appellant had the opportunity to
19 object, but failed to do so. See, e.g., Idowu, 73 S.W.3d at 920 (“Neither appellant nor
his counsel objected at the punishment hearing . . . .”).
Here, after the trial court pronounced Arriaga’s sentence at the end of the
punishment phase, the trial court asked Arriaga whether he understood his sentence
and his right to appeal. Arriaga said nothing. The trial court then asked whether the
State had any issues with the sentencing, to which the State responded, “Nothing
from the State, Your Honor.” The trial court then asked defense counsel whether he
had any issues with the sentencing, to which defense counsel stated, “No, Your
Honor.” The trial court then directly addressed defense counsel again and asked,
“Was there any reason why sentence should not be pronounced,” to which defense
counsel replied, “No legal reason.” At no time did either Arriaga or his attorney
object to the sentence. And Arriaga did not raise a sentencing issue in a motion for
new trial. Because Arriaga had the opportunity to object to his sentence but did not
do so, he has failed to preserve his sentencing issue for our review.5 See id. We
overrule Arriaga’s fifth point.
5 Even if Arriaga had preserved his sentencing complaint for our review, he has still failed to demonstrate that his sentence was based on facts not in evidence. As Arriaga acknowledges in his brief, some evidence in the record supports the trial court’s statement that he had threatened police officers in the past. Specifically, the State introduced evidence at the punishment phase that Arriaga had once pointed what an officer thought was a gun at the officer. After officers apprehended him, Arriaga yelled at the officers that the gun was in fact a BB gun. Other evidence adduced at the punishment hearing demonstrated that on another occasion, as officers attempted to arrest Arriaga, rather than putting his hands up and coming out of his apartment as officers commanded him, Arriaga began yelling at them to shoot
20 D. Arriaga’s Recorded Confession
In his sixth point, Arriaga argues that the trial court erred by denying his
motion to suppress his videotaped confession to police. Arriaga complains that his
confession was procured “involuntarily as the result of urgings and promises and
misrepresentations made by the questioner.” We disagree.
We apply a bifurcated standard of review to a trial court’s ruling on a motion to
suppress evidence. 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). We defer almost totally to
a trial court’s rulings on questions of historical fact and application-of-law-to-fact
questions that turn on evaluating credibility and demeanor, but we review de novo
application-of-law-to-fact questions that do not turn on credibility and demeanor.
Amador, 221 S.W.3d at 673; Estrada v. State, 154 S.W.3d 604, 607 (Tex. Crim. App.
2005); Johnson v. State, 68 S.W.3d 644, 652–53 (Tex. Crim. App. 2002). When
reviewing the trial court’s ruling on a suppression motion, we must view the evidence
in the light most favorable to the ruling. State v. Kelly, 204 S.W.3d 808, 818 (Tex.
Crim. App. 2006).
Once an accused claims his confession is not voluntary, the burden shifts to the
State to prove its voluntariness. See Farr v. State, 519 S.W.2d 876, 880 (Tex. Crim.
App. 1975). A confession is involuntary if the record reflects “official, coercive
him. Either of these incidents could be interpreted as “threatening” a police officer. Indeed, in the first instance regarding the BB gun, Arriaga was charged with terroristic threats.
21 conduct of such a nature” that any confession obtained thereby is “unlikely to have
been the product of an essentially free and unconstrained choice by its maker.”
Alvarado v. State, 912 S.W.2d 199, 211 (Tex. Crim. App. 1995); see also Colorado v.
Connelly, 479 U.S. 157, 167, 107 S. Ct. 515, 521–22 (1986) (reasoning that coercive
police activity is a necessary predicate to finding that a confession is not voluntary
within the meaning of the Due Process Clause of the Fourteenth Amendment).
The test is whether the defendant’s will was “overborne” by police coercion.
Guardiola v. State, 20 S.W.3d 216, 223 (Tex. App.—Houston [14th Dist.] 2000, pet.
ref’d); see Gomes v. State, 9 S.W.3d 373, 377–78 (Tex. App.—Houston [14th Dist.]
1999, pet. ref’d). To make this determination, a court looks at the totality of the
circumstances. Guardiola, 20 S.W.3d at 223; see also Schneckloth v. Bustamonte, 412 U.S.
218, 226, 93 S. Ct. 2041, 2047 (1973); Creager v. State, 952 S.W.2d 852, 855 (Tex. Crim.
App. 1997).
In determining the voluntariness of a defendant’s statement, police falsehoods
are relevant. Frazier v. Cupp, 394 U.S. 731, 739, 89 S. Ct. 1420, 1425 (1969); Green v.
State, 934 S.W.2d 92, 99 (Tex. Crim. App. 1996). But “[t]rickery or deception does
not make a statement involuntary unless the method [is] calculated to produce an
untruthful confession or [is] offensive to due process.” Creager, 952 S.W.2d at 856;
Jeffley v. State, 38 S.W.3d 847, 860 (Tex. App.—Houston [14th Dist.] 2001, pet. ref’d).
Indeed, the effect of a lie “must be analyzed in the context of all the circumstances of
the interrogation.” Miller v. Fenton, 796 F.2d 598, 607 (3rd Cir. 1986). Similarly,
22 misrepresentations which do not interject extrinsic considerations that would
overcome a defendant’s will to confess or remain silent are generally permissible.
Compare Moran v. Burbine, 475 U.S. 412, 421, 106 S. Ct. 1135, 1141 (1986) (holding that
inflating evidence of the defendant’s guilt did not interfere with the defendant’s
choice of whether to confess), with Lynumm v. Illinois, 372 U.S. 528, 531, 83 S. Ct. 917,
919 (1963) (holding that misrepresentation that failure to confess would result in loss
of welfare benefits and custody of children rendered confession coerced).
In this case, Arriaga claims his confession was involuntary because the
interviewing officer induced him to confess (1) by telling him he would be straight
with Arriaga, but instead the officer lied about why he was late to the interview and
about not having already spoken with Arriaga’s brother; (2) by expressing that
Arriaga’s telling the truth would go a long way; and (3) by asking for Arriaga’s phone
number, ostensibly implying that Arriaga might be released after confessing.
The interviewing officer’s statements regarding why he was late to the interview
and whether he had spoken with Arriaga’s brother amounted to nothing more than
trickery, deception, or misrepresentations. They did not rise to the level to offend due
process, and Arriaga has pointed to nothing in the record indicating that such trickery
was calculated to produce an untruthful confession. See Rodriquez v. State, 934 S.W.2d
881, 890–91 (Tex. App.—Waco 1996, no pet.) (“The fact that the interrogating
officers falsely stated to Rodriquez that the victim, on his deathbed, identified him as
the assailant does not support a finding that the confession was involuntarily given.”);
23 Snow v. State, 721 S.W.2d 943, 946 (Tex. App.—Houston [1st Dist.] 1986, no pet.)
(“[V]oluntariness is not destroyed, and a confession induced by deception or trickery
is not inadmissible, unless the method used was calculated to produce an untruthful
confession or was offensive to due process.”).
Likewise, the interviewing officer’s statement that Arriaga’s telling the truth
would go a long way does not render his confession involuntary. See Dykes v. State,
657 S.W.2d 796, 797 (Tex. Crim. App. 1983) (“A confession is not rendered
inadmissible because it is made after an accused has been told by the officer taking the
confession that it would be best to tell the truth.”); see also Coleman v. State, 440 S.W.3d
218, 223 (Tex. App.—Houston [14th Dist.] 2013, no pet.) (“[G]eneral statements
made to a suspect regarding how a confession can sometimes result in leniency do not
render a confession involuntary.”). Furthermore, as the State points out, Arriaga
declined to answer some of the interviewing officer’s questions, indicating that his
confession was voluntary. See Joseph v. State, 309 S.W.3d 20, 26 (Tex. Crim. App. 2010)
(“Moreover, the fact that Appellant felt free to decline answering particular questions
suggests that the information he did choose to provide was given voluntarily.”). And
Arriaga has provided no authority to support his proposition that an interviewing
officer’s asking for a suspect’s phone number equates to coercion.
Viewing the evidence in the light most favorable to the trial court’s ruling and
considering the totality of the circumstances surrounding Arriaga’s confession, we
conclude that the trial court did not err by finding that his confession was made
24 voluntarily. See Kelly, 204 S.W.3d at 818. Thus, the trial court did not err by denying
Arriaga’s suppression motion and by admitting his confession. We overrule Arriaga’s
sixth point.
E. No Voluntariness Instruction in Jury Charge
In his seventh point, Arriaga argues that the trial court reversibly erred by
failing to sua sponte give an instruction regarding the voluntariness of his confession.
See Tex. Code Crim. Proc. Ann. art. 38.22, § 6 (detailing how a trial court is to address
the voluntariness of an accused’s confession and when to submit a jury instruction
regarding such).
Under Article 38.22, Section 6, there is no error in refusing to include a jury
instruction, sua sponte or otherwise, when there is no evidence before the jury to raise
the issue. Miniel v. State, 831 S.W.2d 310, 316–17 (Tex. Crim. App. 1992); Hernandez v.
State, 819 S.W.2d 806, 812 (Tex. Crim. App. 1991). Some evidence must have been
presented to the jury that the defendant’s confession was not given voluntarily.
Alvarado, 912 S.W.2d at 211 n.9; Hernandez, 819 S.W.2d at 812. It is not enough that
the issue is raised by the introduction of a confession; rather, the issue must have been
“litigated” in order for Article 38.22, Section 6 to be considered “the law applicable”
to the case. Oursbourn v. State, 259 S.W.3d 159, 180 (Tex. Crim. App. 2008).
Here, the only “evidence” that Arriaga points to in his brief as having been
before the jury is his videotaped confession, which he argues was scattered with
evidence of its involuntariness. But Arriaga neither directs us to any evidence, nor has
25 this court located any, in which he suggested before the jury that his recorded
confession was involuntary. This court has held that when a defendant fails to put on
any evidence of the involuntariness of his confession aside from the confession itself,
the voluntariness of a confession was not litigated. Flenoy v. State, No. 02-11-00270-
CR, 2012 WL 2579548, at *5 (Tex. App.—Fort Worth July 5, 2012, pet. ref’d) (mem.
op., not designated for publication) (“Because Flenoy offered no such evidence, a
reasonable jury could not have concluded that the statement was involuntary, and the
trial court was therefore not required to give the jury an [A]rticle 38.22, [S]ection 6
instruction.”). We overrule Arriaga’s seventh point.
F. Findings of Fact and Conclusions of Law
In his eighth point, Arriaga argues that the trial court erred by failing to file
written findings of fact and conclusions of law regarding the voluntariness of his
confession. Arriaga again argues that this failure violated Article 38.22, Section 6. See
Tex. Code Crim. Proc. Ann. art. 38.22, § 6. But as the State points out, a trial court
satisfies the edicts of Article 38.22, Section 6, when it dictates its findings of fact and
conclusions of law regarding a voluntariness-of-a-confession finding to the court
reporter, and they are later transcribed and made part of the appellate record. Murphy
v. State, 112 S.W.3d 592, 601 (Tex. Crim. App. 2003).
Here, at the conclusion of the suppression motion, the trial court orally
dictated its findings of fact and conclusions of law to the court reporter, and they are
now part of the appellate record. Thus, the trial court did not err by not filing written
26 findings of fact and conclusions of law regarding the voluntariness of Arriaga’s
confession. See id. We overrule Arriaga’s eighth point.
IV. CONCLUSION
Having overruled all eight of Arriaga’s points on appeal, we affirm the trial
court’s judgment.
/s/ Dana Womack
Dana Womack Justice
Do Not Publish Tex. R. App. P. 47.2(b)
Delivered: December 19, 2019