Dennis Gallien v. the State of Texas

• Court: Court of Appeals of Texas
• Decided: February 6, 2024
• Docket: 01-22-00398-CR
• Status: Published

Opinion

Opinion issued February 6, 2024

In The

Court of Appeals For The

First District of Texas ———————————— NO. 01-22-00398-CR ——————————— DENNIS GALLIEN, Appellant V. THE STATE OF TEXAS, Appellee

On Appeal from the 339th District Court Harris County, Texas Trial Court Case No. 1541083

MEMORANDUM OPINION

After providing a recorded statement to police, appellant Dennis Gallien was

indicted for the offense of aggravated robbery,1 enhanced by two prior felony

convictions. Gallien moved to suppress the recorded statement, but the trial court

1 See TEX. PENAL CODE § 29.03. denied the motion. A jury found Gallien guilty of aggravated robbery but could not

agree on a sentence, resulting in a mistrial for the punishment phase. Gallien then

filed a motion for mistrial and a motion for new trial for the guilt-innocence phase.

The trial court granted a mistrial for that phase as well, and the State appealed. We

concluded that the order granting the mistrial for the guilt-innocence phase was

functionally indistinguishable from an order granting a motion for new trial. See

State v. Gallien, 631 S.W.3d 885, 891 (Tex. App.—Houston [1st Dist.] 2021, pet.

ref’d). We held that the trial court had erred in granting the guilt-innocence mistrial,

reversed the order, and remanded the case for a new punishment hearing. Id. at 898.

On remand, Gallien entered into a plea agreement regarding punishment and was

sentenced to 17 years in prison. The trial court certified Gallien’s right to appeal only

the “guilt/innocence phase.” Gallien now appeals his conviction.

In his sole appellate issue, Gallien challenges the trial court’s denial of his

motion to suppress his recorded statement. Because we hold that the trial court did

not abuse its discretion in denying the motion, we affirm the judgment of conviction.

Background

On January 19, 2017, S. Shawon was working as a cashier at a Houston gas

station. Around 10:00 p.m., a man entered the gas station wielding a knife and

demanding that Shawon open the cash register. When Shawon complied, the man

grabbed the cash register drawer containing around $700. Shawon jumped over the

2 counter and ran outside. The man fled the gas station with the drawer, and Shawon

called the Houston Police Department (HPD).

The following day, the manager of the gas station provided HPD with

surveillance video showing the robbery. Using the video, HPD developed Gallien as

a suspect and obtained a warrant to arrest him for the offense of aggravated robbery.

After he was arrested, Gallien was placed in jail.

The day after his arrest, Gallien was taken from jail to the police station where

he was interviewed by HPD Detective W. West. The interview was conducted in an

interview room and was video recorded. After introducing himself, Detective West

read Gallien his rights as set out in Code of Criminal Procedure article 38.22(a).2

Detective West asked Gallien, “With those rights being read to you, [are you]3

willing to speak to me about this incident I’m out here to investigate?” Gallien

responded, “Yeah.” Detective West then stated that the incident was the robbery at

the gas station.

During the interview, Detective West showed Gallien a still photograph of the

robbery suspect taken from the gas station’s surveillance video. Detective West told

Gallien that he knew that Gallien was the person in the photograph. Gallien denied

2 See TEX. CODE CRIM. PROC. art. 38.22, § 2(a). 3 It is unclear from the video’s audio whether Detective West said “are you” or “you” at this point in the question. 3 that he was the person in the photo, and he corrected certain statements by Detective

West about facts the detective claimed to have learned about him.

Detective West told Gallien that, at the end of the surveillance video, it

appeared that, after Shawon jumped over the counter and ran out of view, Gallien

had pursued Shawon chasing him with the knife. Detective West told Gallien that he

knew that Gallien had not pursued Shawon but had instead fled the scene. Detective

West told Gallien that the interview was his opportunity to explain what had

happened at the gas station and to show a “human side.” Gallien then admitted that

he had committed the aggravated robbery. He said that he was on “Kush” at the time

of the robbery and had needed money for his drug habit.

After the jury was selected, but before trial began, Gallien orally moved to

suppress his recorded statement. The trial court heard the motion outside the jury’s

presence. At the hearing, Detective West was called to testify and Gallien’s video-

recorded statement, about 17 minutes in length, was admitted into evidence.4

Gallien acknowledged that Detective West had read him his rights before he

gave his statement but argued that his statement should be suppressed because he

was never asked if he understood or waived his rights. Gallien also asserted that

Detective West coerced him into “say[ing] what happened.” In response, the State

4 The record reflects that portions of the interview were redacted from the video to remove statements about Gallien’s prior convictions and extraneous offenses. During trial, Detective West testified that the interview had lasted 20 to 30 minutes. 4 pointed out that a defendant need not expressly waive his rights when the waiver can

be implied from the circumstances. The State asserted that, “from watching the video

and [Gallien’s] demeanor in the video and his behavior,” it “appear[ed] that he

clearly understood his rights and waived them by speaking to [Detective West].”

At the end of the hearing, the trial court remarked that it “guess[ed] it’s a

tactical decision sometimes with police officers talking to people as to whether or

not to stop and clearly articulate you’re waiving your right, [but] that doesn’t

preclude a statement from being voluntary and not coerced . . . .” The trial court then

found “[no] coercion at all in [Detective West’s] conversation with [Gallien] and

[in] how [Detective West] approached the subject, how he developed the subject,

[and] how he interacted with [Gallien].” The trial court also found that Gallien had

been informed of his rights and understood them. And the trial court found that,

“from the totality of the circumstances,” Gallien had “knowingly and voluntarily

waived those rights and engaged in [a] conversation” with Detective West. The court

found “that it was truly a voluntary statement in terms of the overall conversation

with the officer.” The trial court noted that, even when Detective West revealed that

he “had the goods on him,” Gallien did not ask to speak to an attorney nor did he

indicate that he did not want to continue the conversation. The trial court denied the

motion to suppress after determining that Gallien had waived his rights “knowingly

and intelligently and voluntarily.”

5 Denial of Motion to Suppress

In his sole issue, Gallien challenges the denial of his motion to suppress.

A. Standard of Review

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

standard of review. Lerma v. State, 543 S.W.3d 184, 189–90 (Tex. Crim. App.

2018). We review the trial court’s factual findings for an abuse of discretion but

review the trial court’s application of the law to the facts de novo. Turrubiate v.

State, 399 S.W.3d 147, 150 (Tex. Crim. App. 2013). We give deference to the trial

court’s factual determinations because the trial court is the sole trier of fact and judge

of witness credibility and the weight to be given their testimony. Lerma, 543 S.W.3d

at 190; Valtierra v. State, 310 S.W.3d 442, 447 (Tex. Crim. App. 2010). Our

deferential review also applies to the trial court’s conclusions regarding mixed

questions of law and fact that turn on credibility or demeanor. State v. Ortiz, 382

S.W.3d 367, 372 (Tex. Crim. App. 2012). We review de novo mixed questions of

law and fact that do not turn on credibility and demeanor, as well as purely legal

questions. State v. Woodard, 341 S.W.3d 404, 410 (Tex. Crim. App. 2011).

If the trial court makes express factual findings, we view the evidence in the

light most favorable to the ruling and determine whether the evidence supports the

findings. Valtierra, 310 S.W.3d at 447; see State v. Cullen, 195 S.W.3d 696, 699

(Tex. Crim. App. 2006) (recognizing that findings and conclusions may be “stated

6 on the record at the hearing”). “The evidence and all reasonable inferences are

viewed in the light most favorable to the trial court’s ruling, and the trial court’s

ruling must be upheld if it is reasonably supported by the record and is correct under

a theory of law applicable to the case.” State v. Espinosa, 666 S.W.3d 659, 667 (Tex.

Crim. App. 2023).

B. Applicable Law

Code of Criminal Procedure article 38.21 provides that “[a] statement of an

accused may be used in evidence against him if it appears that the same was freely

and voluntarily made without compulsion or persuasion.” TEX. CODE CRIM. PROC.

art. 38.21. An accused’s statement made during a custodial interview will not be

admissible unless a law enforcement officer advised an accused of his rights before

the interview begins. See TEX. CODE CRIM. PROC. art. 38.22, §§ 2(a), 3(a)(2);

Miranda v. Arizona, 384 U.S. 436, 444 (1966). Article 38.22 requires that an accused

be informed that:

(1) he has the right to remain silent and not make any statement at all and that any statement he makes may be used against him at his trial;

(2) any statement he makes may be used as evidence against him in court;

(3) he has the right to have a lawyer present to advise him prior to and during any questioning;

(4) if he is unable to employ a lawyer, he has the right to have a lawyer appointed to advise him prior to and during any questioning; and

7 (5) he has the right to terminate the interview at any time.

TEX. CODE CRIM. PROC. art. 38.22, § 2(a); see Herrera v. State, 241 S.W.3d 520,

526 (Tex. Crim. App. 2007) (recognizing that article 38.22, section 2(a) warnings

are “virtually identical” to warnings required by Miranda, 384 U.S. at 444, except

that article 38.22 also requires warning accused that he “has the right to terminate

the interview at any time”).

For a custodial statement to be admissible, a defendant must knowingly,

intelligently, and voluntarily waive his rights. See TEX. CODE CRIM. PROC. art. 38.22,

§§ 2(a)–(b), 3(a)(2); see Miranda, 384 U.S. at 444. “The burden of proof regarding

the waiver rests with the State; it must prove by a preponderance of the evidence a

knowing, intelligent, and voluntary waiver.” State v. Lujan, 634 S.W.3d 862, 865

(Tex. Crim. App. 2021).

To be valid, a waiver of rights must be the product of a free and deliberate

choice rather than intimidation, coercion, or deception. Id. The waiver must also be

made with a full awareness of both the nature of the right being abandoned and the

consequences of the decision to abandon it. Id. An accused need not expressly waive

his rights. Joseph v. State, 309 S.W.3d 20, 24 (Tex. Crim. App. 2010) (recognizing

that generally neither express oral nor written waiver is required). Instead, waiver

may be inferred from an accused’s actions and words. Id. An accused’s implied

waiver of his rights is established on a showing that he (1) was given the proper

8 warnings, (2) understood the warnings and their consequences, and (3) made an

uncoerced statement. Howard v. State, 482 S.W.3d 249, 256 (Tex. App.—Houston

[1st Dist.] 2015, pet. ref’d); see Berghuis v. Thompkins, 560 U.S. 370, 384 (2010)

(“Where the prosecution shows that a Miranda warning was given and that it was

understood by the accused, an accused’s uncoerced statement establishes an implied

waiver of the right to remain silent.”).

Waiver is judged by the totality of the circumstances. Joseph, 309 S.W.3d at

25. “The ‘totality-of-the-circumstances approach’ requires the consideration of ‘all

the circumstances surrounding the interrogation,’ including the defendant’s

experience, background, and conduct.” Id. (quoting Fare v. Michael C., 442 U.S.

707, 725 (1979)).

C. Analysis

In asserting that his video-recorded statement should be suppressed, Gallien

does not dispute that he was informed of his rights. Instead, he argues that his

statement should be suppressed because “he did not understand the warnings he was

given nor was he ever asked if he waived his right to remain silent.”5

The video recording of Gallien’s statement shows that Detective West read

Gallien his article 38.22 rights and asked, “With those rights being read to you, [are

5 In the trial court, Gallien also asserted that he had been coerced by Detective West to give the statement, but he does not make that claim on appeal. 9 you] willing to speak to me about this incident I’m out here to investigate?” Gallien

responded affirmatively. There is no indication in the record that Gallien did not

understand the rights read by Detective West. To the contrary, throughout the 17-

minute video, Gallien freely and fluently conversed with Detective West. Gallien

appeared not only to understand Detective West’s statements and questions but also

their implications. And, when he disagreed with Detective West, Gallien explained

why Detective West was incorrect. He responded appropriately to Detective West’s

questions, answering them in detail without a need for clarification or explanation.

In short, Gallien appeared to have no difficulty in comprehending what Detective

West said to him and showed no difficulty in articulating his thoughts and responses

in return. From the video of the interview, the trial court could have reasonably

inferred that Gallien understood his rights. See Galvan-Cerna v. State, 509 S.W.3d

398, 410 (Tex. App.—Houston [1st Dist.] 2014, no pet.) (rejecting appellant’s

argument that he did not waive his rights “because he was not explicitly asked if he

understood the warnings given to him” where record showed that, during interview,

(1) appellant and officer understood one another in Spanish and (2) appellant

“convers[ed] freely and answer[ed] questions responsively”).

The trial court also could have reasonably inferred that Gallien impliedly

waived his rights. After being read his rights, Gallien immediately agreed to speak

to Detective West. Gallien proceeded to answer Detective West’s questions without

10 hesitation and corrected Detective West when said something with which Gallien

disagreed. See Joseph, 309 S.W.3d at 26 (“Immediately after being warned by [the

officer] that he had the right to remain silent and that he did not have to make any

statement to anyone, Appellant willingly participated in a six-hour interview.”);

Howard, 482 S.W.3d at 257 (considering, in determining that defendant impliedly

waived statutory rights, that defendant had “immediately responded and provided

detailed answers to [officers’] questions, at times correcting the officers when they

stated something that appellant believed was incorrect”); Hargrove v. State, 162

S.W.3d 313, 319 (Tex. App.—Fort Worth 2005, pet. ref’d) (noting, in concluding

that defendant impliedly waived statutory rights, that defendant “then proceeded

without hesitation to discuss the present offense, although he denied any

involvement during this first interview”).

When Detective West indicated to Gallien that it was his opportunity to

explain what had occurred at the gas station, Gallien admitted that he had committed

the offense. He explained that he committed the robbery because he was on “Kush”

and needed money for his drug habit. Gallien did not ask to terminate the interview,

and he did not ask for an attorney. See Joseph, 309 S.W.3d at 26 (considering

whether defendant invoked right to remain silent and right to attorney in determining

voluntariness of implied waiver of rights). In addition, Detective West testified that

he did not promise Gallien anything in exchange for his statement, and he did not

11 coerce or threaten Gallien. See id. (noting, in determining that defendant impliedly

waived his statutory rights, that “there appears to be no possibility that a promise

from police could have jeopardized the voluntariness of Appellant’s statement”).

On appeal, Gallien claims that Detective West made a tactical decision not to

ask him if he understood and waived his rights. He asserts that “[t]he tactical decision

of [Detective West] to skip over the understanding and waiver portion of the 38.22

rights undermines any implied waiver.” But, as the State correctly points out, no

evidence was offered supporting the assertion. Detective West never indicated that

he made a tactical decision to forego asking Gallien if he understood or waived his

rights. In fact, Detective West initially testified that he had asked Gallien if he

understood his rights, but, after viewing the video of the interview, he acknowledged

that he had not asked Gallien that question.

Gallien points to the trial court’s remark that it “guess[ed] it’s a tactical

decision sometimes with police officers talking to people as to whether or not to stop

and clearly articulate you’re waiving your right, [but] that doesn’t preclude a

statement from being voluntary and not coerced . . . .” (Emphasis added.) Gallien

characterizes the trial court’s remark as a finding of fact and asserts that “[t]he trial

court’s recognition that [Detective West] used a tactic to deny Mr. Gallien his

constitutional and statutory rights should be enough to suppress the confession.”

12 We disagree with Gallien’s characterization. The trial court’s remark did not

address Detective West’s conduct specifically; rather, it addressed what police

officers in general “sometimes” do. Read in context, the trial court was conveying

that, even when an officer does not ask a defendant if he understands and waives his

rights, a defendant’s waiver may still be valid.

As discussed, a waiver may be inferred from a defendant’s actions and words.

Id. at 25. The defendant need not expressly waive his rights or expressly

acknowledge that he understood them; instead, the totality of the circumstances must

reflect that he waived his rights with “full awareness of both the nature of the right

being abandoned and the consequences of the decision to abandon it.” See id.

(quoting Moran v. Burbine, 475 U.S. 412, 421 (1986)).

Here, the evidence supported a determination by the trial court that the totality

of the circumstances demonstrated that Gallien was aware of his rights, that he

understood his rights, and that he impliedly waived his rights by speaking with

Detective West. See id. at 27 (stating, in affirming ruling that defendant impliedly

waived his statutory rights, that, immediately after being read his rights, defendant

willingly participated in interview with police and defendant never “ask[ed] that the

interview be stopped, nor did he request an attorney”); Howard, 482 S.W.3d at 258

(holding that totality of circumstances showed that appellant impliedly waived his

rights when he immediately spoke with police after receiving rights); Galvan-Cerna,

13 509 S.W.3d at 410 (upholding trial court’s denial of motion to suppress custodial

statement, even though police officer had not asked appellant if he understood or

waived rights, because record showed that appellant freely and fluently conversed

with police officer during interview and had not invoked his rights). Accordingly,

we hold that the trial court did not abuse its discretion by denying Gallien’s motion

to suppress his recorded statement.

We overrule Gallien’s sole issue.

Conclusion

We affirm the judgment of the trial court.

Richard Hightower Justice

Panel consists of Chief Justice Adams and Justices Hightower and Countiss.

Do not publish. Tex. R. App. P. 47.2(b).