COURT OF APPEALS SECOND DISTRICT OF TEXAS FORT WORTH
NO. 02-11-00383-CR
JESSIE T. MACK APPELLANT
V.
THE STATE OF TEXAS STATE
----------
FROM CRIMINAL DISTRICT COURT NO. 2 OF TARRANT COUNTY
MEMORANDUM OPINION1
A jury convicted Appellant Jessie T. Mack of robbery causing bodily injury,
and the trial court sentenced him to fifty years’ confinement.2 In a single point,
Mack argues that the trial court erred by denying his motion to suppress his oral
statement. We will affirm.
1 See Tex. R. App. P. 47.4. 2 Mack pleaded true to the habitual offender notice that alleged two prior felony convictions. Stephen Salley arrived at the Lake Como Church of Christ Community of
Hope retirement center on January 27, 2011, at around 9:00 p.m. to deliver
prescriptions. When Salley paused at the door to recall the entry code, Mack
confronted Salley and asked him to turn over his wallet. Salley declined, and
Mack told him, “Give me your wallet or I’m going to shoot you.” The two then
began to struggle, and Mack managed to grab Salley’s wallet. When Mack
discovered that there was no money in Salley’s wallet, Salley, who was afraid of
suffering imminent bodily injury, gave Mack $20 from his pocket, and Mack fled
the scene. Authorities investigating the offense obtained video surveillance from
Lake Como’s security cameras and arrested Mack approximately two weeks
later. Detective Jerry Cedillo interviewed Mack and recorded his oral statement.
During the interview, Mack initially denied any involvement in the robbery but
later admitted that he took Salley’s money.3 The trial court denied Mack’s motion
to suppress the oral statement.
In his only point, Mack argues that the trial court erred by denying his
motion to suppress the oral statement. Mack contends that the statement was
involuntary and taken in violation of his due process rights under the Fourteenth
Amendment and his statutory rights under code of criminal procedure article
38.22 because (1) Detective Cedillo threatened “to bring in” Mack’s girlfriend if he
3 Mack did not agree that he threatened to shoot Salley.
2 did not cooperate, (2) Mack “lacked the ability to read and write,”4 and (3) Mack’s
“insight and overall cognitive abilities are below average.”5
We review a trial court’s ruling on a motion to suppress evidence under a
bifurcated standard of review. 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 give almost total deference to a trial court’s rulings on questions of historical
fact and application-of-law-to-fact questions that turn on an evaluation of
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).
The determination of whether a confession is voluntary is based on an
examination of the totality of the circumstances surrounding its acquisition.
Penry v. State, 903 S.W.2d 715, 744 (Tex. Crim. App.), cert. denied, 516 U.S.
977 (1995); Smith v. State, 779 S.W.2d 417, 427 (Tex. Crim. App. 1989). A
statement is involuntary for purposes of federal due process if the record reflects
“official, coercive conduct of such a nature that any statement obtained thereby
was unlikely to have been the product of an essentially free and unconstrained
4 Mack told Detective Cedillo at the conclusion of the questioning about the robbery that he could not read. 5 At the hearing on the motion to suppress, Mack asked the trial court to take judicial notice of a report by “Dr. Norman” opining that Mack’s “ability to comprehend and make decisions is below average.”
3 choice by its maker.” Alvarado v. State, 912 S.W.2d 199, 211 (Tex. Crim. App.
1995); see Oursbourn v. State, 259 S.W.3d 159, 169–70 (Tex. Crim. App. 2008).
“Absent [coercive] police conduct causally related to the confession, there is
simply no basis for concluding that any state actor has deprived a criminal
defendant of due process of law.” Alvarado, 912 S.W.2d at 211 (citing Colorado
v. Connelly, 479 U.S. 157, 164, 107 S. Ct. 515, 520 (1986)).
Although a claim of involuntariness under code of criminal procedure
article 38.22 can be predicated on police overreaching, section 6 of the article
additionally encompasses subjective involuntariness claims that do not turn
solely on police overreaching. Oursbourn, 259 S.W.3d at 172. For example, “[a]
confession given under the duress of hallucinations, illness, medications, or even
a private threat . . . could be involuntary under Article 38.21 and the Texas
confession statute.” Id. Thus, under a section 6 voluntariness inquiry, we may
consider factors such as the suspect’s youth, intoxication, mental retardation, or
other disability that would not otherwise raise a federal due process claim. Id. at
172–73. Regarding mental impairment, “[m]ental deficiency is a factor, but not
alone determinative, in ascertaining the voluntariness of a confession.” Penry,
903 S.W.2d at 744. The question is whether the accused’s impairment is so
severe that he was incapable of understanding the meaning and effect of his
statement. Casias v. State, 452 S.W.2d 483, 488 (Tex. Crim. App. 1970).
We have reviewed Mack’s recorded oral interview in its entirety.
Regarding Mack’s argument that Detective Cedillo threatened to arrest Mack’s
4 girlfriend, during the interview, Detective Cedillo (a) asked Mack if his girlfriend
had anything to do with the robbery, (b) told Mack that he needed to speak with
his girlfriend, and (c) said that Mack’s girlfriend will be “dealing” with the police if
she was somehow involved in the robbery. The circumstances surrounding
Detective Cedillo’s questions and statements about Mack’s girlfriend concerned
Detective Cedillo’s interest in gathering facts about the offense as part of his
overall investigation. While a threat to arrest a family member can result in an
involuntary confession, see Contreras v. State, 312 S.W.3d 566, 576–77 (Tex.
Crim. App., cert. denied, 131 S. Ct. 427 (2010), at no point during Mack’s
interview did Detective Cedillo threaten to arrest Mack’s girlfriend if he did not
confess to committing the robbery. Indeed, Detective Cedillo testified at the
hearing on the motion to suppress that at no time during the interview did he
coerce or threaten Mack to convince him to give a statement.
As for Mack’s argument that his statement was involuntary because of his
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COURT OF APPEALS SECOND DISTRICT OF TEXAS FORT WORTH
NO. 02-11-00383-CR
JESSIE T. MACK APPELLANT
V.
THE STATE OF TEXAS STATE
----------
FROM CRIMINAL DISTRICT COURT NO. 2 OF TARRANT COUNTY
MEMORANDUM OPINION1
A jury convicted Appellant Jessie T. Mack of robbery causing bodily injury,
and the trial court sentenced him to fifty years’ confinement.2 In a single point,
Mack argues that the trial court erred by denying his motion to suppress his oral
statement. We will affirm.
1 See Tex. R. App. P. 47.4. 2 Mack pleaded true to the habitual offender notice that alleged two prior felony convictions. Stephen Salley arrived at the Lake Como Church of Christ Community of
Hope retirement center on January 27, 2011, at around 9:00 p.m. to deliver
prescriptions. When Salley paused at the door to recall the entry code, Mack
confronted Salley and asked him to turn over his wallet. Salley declined, and
Mack told him, “Give me your wallet or I’m going to shoot you.” The two then
began to struggle, and Mack managed to grab Salley’s wallet. When Mack
discovered that there was no money in Salley’s wallet, Salley, who was afraid of
suffering imminent bodily injury, gave Mack $20 from his pocket, and Mack fled
the scene. Authorities investigating the offense obtained video surveillance from
Lake Como’s security cameras and arrested Mack approximately two weeks
later. Detective Jerry Cedillo interviewed Mack and recorded his oral statement.
During the interview, Mack initially denied any involvement in the robbery but
later admitted that he took Salley’s money.3 The trial court denied Mack’s motion
to suppress the oral statement.
In his only point, Mack argues that the trial court erred by denying his
motion to suppress the oral statement. Mack contends that the statement was
involuntary and taken in violation of his due process rights under the Fourteenth
Amendment and his statutory rights under code of criminal procedure article
38.22 because (1) Detective Cedillo threatened “to bring in” Mack’s girlfriend if he
3 Mack did not agree that he threatened to shoot Salley.
2 did not cooperate, (2) Mack “lacked the ability to read and write,”4 and (3) Mack’s
“insight and overall cognitive abilities are below average.”5
We review a trial court’s ruling on a motion to suppress evidence under a
bifurcated standard of review. 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 give almost total deference to a trial court’s rulings on questions of historical
fact and application-of-law-to-fact questions that turn on an evaluation of
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).
The determination of whether a confession is voluntary is based on an
examination of the totality of the circumstances surrounding its acquisition.
Penry v. State, 903 S.W.2d 715, 744 (Tex. Crim. App.), cert. denied, 516 U.S.
977 (1995); Smith v. State, 779 S.W.2d 417, 427 (Tex. Crim. App. 1989). A
statement is involuntary for purposes of federal due process if the record reflects
“official, coercive conduct of such a nature that any statement obtained thereby
was unlikely to have been the product of an essentially free and unconstrained
4 Mack told Detective Cedillo at the conclusion of the questioning about the robbery that he could not read. 5 At the hearing on the motion to suppress, Mack asked the trial court to take judicial notice of a report by “Dr. Norman” opining that Mack’s “ability to comprehend and make decisions is below average.”
3 choice by its maker.” Alvarado v. State, 912 S.W.2d 199, 211 (Tex. Crim. App.
1995); see Oursbourn v. State, 259 S.W.3d 159, 169–70 (Tex. Crim. App. 2008).
“Absent [coercive] police conduct causally related to the confession, there is
simply no basis for concluding that any state actor has deprived a criminal
defendant of due process of law.” Alvarado, 912 S.W.2d at 211 (citing Colorado
v. Connelly, 479 U.S. 157, 164, 107 S. Ct. 515, 520 (1986)).
Although a claim of involuntariness under code of criminal procedure
article 38.22 can be predicated on police overreaching, section 6 of the article
additionally encompasses subjective involuntariness claims that do not turn
solely on police overreaching. Oursbourn, 259 S.W.3d at 172. For example, “[a]
confession given under the duress of hallucinations, illness, medications, or even
a private threat . . . could be involuntary under Article 38.21 and the Texas
confession statute.” Id. Thus, under a section 6 voluntariness inquiry, we may
consider factors such as the suspect’s youth, intoxication, mental retardation, or
other disability that would not otherwise raise a federal due process claim. Id. at
172–73. Regarding mental impairment, “[m]ental deficiency is a factor, but not
alone determinative, in ascertaining the voluntariness of a confession.” Penry,
903 S.W.2d at 744. The question is whether the accused’s impairment is so
severe that he was incapable of understanding the meaning and effect of his
statement. Casias v. State, 452 S.W.2d 483, 488 (Tex. Crim. App. 1970).
We have reviewed Mack’s recorded oral interview in its entirety.
Regarding Mack’s argument that Detective Cedillo threatened to arrest Mack’s
4 girlfriend, during the interview, Detective Cedillo (a) asked Mack if his girlfriend
had anything to do with the robbery, (b) told Mack that he needed to speak with
his girlfriend, and (c) said that Mack’s girlfriend will be “dealing” with the police if
she was somehow involved in the robbery. The circumstances surrounding
Detective Cedillo’s questions and statements about Mack’s girlfriend concerned
Detective Cedillo’s interest in gathering facts about the offense as part of his
overall investigation. While a threat to arrest a family member can result in an
involuntary confession, see Contreras v. State, 312 S.W.3d 566, 576–77 (Tex.
Crim. App., cert. denied, 131 S. Ct. 427 (2010), at no point during Mack’s
interview did Detective Cedillo threaten to arrest Mack’s girlfriend if he did not
confess to committing the robbery. Indeed, Detective Cedillo testified at the
hearing on the motion to suppress that at no time during the interview did he
coerce or threaten Mack to convince him to give a statement.
As for Mack’s argument that his statement was involuntary because of his
inability to read and his reduced cognitive abilities, the recorded interview
demonstrates that Mack engaged in a composed, rational conversation with
Detective Cedillo for over twenty minutes—Mack understood and responded to
Detective Cedillo’s questions, he was coherent throughout the entire interview,
he implicated himself in the robbery only after Detective Cedillo showed him
photographs taken from Lake Como’s surveillance footage depicting him
engaged in a struggle with Salley, and he told Detective Cedillo that he was sorry
for what he had done. Nothing that occurred during the interview indicates that
5 Mack lacked the mental capacity to knowingly and voluntarily give his statement
or to otherwise understand and waive his rights. At the hearing on the motion to
suppress, Detective Cedillo testified that based on his observations, Mack’s
“ability to understand and observe what was going on and to make judgments”
was not below average or impaired.
Considering the totality of the circumstances, we cannot conclude that
Mack’s oral statement was involuntary under either federal due process or article
38.22 standards. Accordingly, we hold that the trial court did not err by denying
Mack’s motion to suppress. We overrule Mack’s sole point and affirm the trial
court’s judgment.
BILL MEIER JUSTICE
PANEL: GARDNER, WALKER, and MEIER, JJ.
DO NOT PUBLISH Tex. R. App. P. 47.2(b)
DELIVERED: August 9, 2012