OPINION
LAURA CARTER HIGLEY, Justice.
Cody Lee Oursbourn, appellant, was charged by indictment with aggravated robbery. Tex. Pen.Code Ann. § 29.03 (Vernon 2003). Appellant entered a plea of not guilty. The jury found him guilty, found an enhancement paragraph to be true, and assessed punishment at 75 years’ confinement.
Appellant raises four points of error. In his first point of error, appellant contends that the trial court erred in faffing to file written findings of fact and conclusions of law. In his second point of error, appellant contends that the trial court erred in faffing to provide jury instructions sua sponte on the law of voluntariness of custodial confessions. In his third and fourth points of error, appellant contends that the trial court abused its discretion in admitting appellant’s custodial confession into evidence.
We affirm.
Background
On November 22, 2003, Frances Rapp, complainant, exited her car to go to a club on Richmond Avenue. After she stepped out of the car, she was approached by a gunman who instructed her to give him the keys to the car. Rapp complied, and the gunman drove away. Rapp reported the robbery to the police and contacted On-Star, which was able to track the car’s location.
Later that night, On-Star notified the police of the location of the car. Sergeant R.L. de los Santos went to the location and saw the car parked in an apartment complex. A few minutes later, someone got into the car and left. Sergeant de los Santos followed the car, and before he could activate his lights, the driver sped [554]*554away. Sergeant de los Santos pursued the driver. Shortly afterwards, the driver stopped the car and attempted to flee on foot. During the chase, the driver tripped and sustained an injury to his head. The driver was identified as Cody Lee Oursb-ourn, appellant.
The police took appellant into custody, and Officer Colleen Guidry met with him on November 24, 2003 for an interrogation. At the time, appellant was in a neck brace, and at one point complained of feeling pain in his head due to the injury. Officer Guidry notified appellant of his rights, and appellant indicated that he understood them.
Officer Guidry had earlier presented a photographic line-up to Rapp and another witness. Although a photograph of appellant was included in the line-up, neither witness identified appellant as the robber. Officer Guidry told appellant, however, that he had been identified as the robber. After this, appellant admitted to the robbery and stated facts that corroborated the version of events that Rapp had given to the police.
Appellant has been diagnosed with a bipolar disorder. Appellant’s mother testified that on the day of the robbery and on the day that she picked appellant up from the police, appellant had been exhibiting manic behavior and that this could have affected the voluntariness of appellant’s confession.
At trial, appellant raised a challenge to the voluntariness of his custodial confession. The trial court held a hearing and overruled appellant’s motion to suppress. The issue of the voluntariness of appellant’s confession was then raised before the jury during the trial.
Findings of Fact and Conclusions of Law
In his first point of error, appellant argues that the trial court erred in failing to file written findings of fact and conclusions of law concerning the voluntariness of his confession. After a hearing on the voluntariness of a custodial confession, the trial court is required to file written findings of fact and conclusions of law. Tex. Code Ceim. PeoC. Ann. art. 38.22 § 6 (Vernon 2005). On this Court’s own motion, we abated the case and remanded it to the trial court to file written findings of fact and conclusions of law. Pursuant to our order, the trial court entered the appropriate findings and conclusions.
Appellant’s first point of error is overruled as moot. Rocha v. State, 16 S.W.3d 1,10 (Tex.Crim.App.2000).
Admission of Custodial Confession
In his third and fourth points of error, appellant argues that the trial court erred in admitting his custodial confession into evidence. Specifically, appellant argues that he had not voluntarily, knowingly, and intelligently waived his rights and that the interrogating officer overbore his will to obtain the confession.
A. Standard of Review
We review the trial court’s ruling on a motion to suppress evidence for an abuse of discretion. Villarreal v. State, 935 S.W.2d 134, 138 (Tex.Crim.App.1996). “At the hearing on the motion, the trial court is the sole judge of the credibility of the witnesses and the weight to be given their testimony.” Id. In reviewing the record, we defer to the trial court’s determination of facts, particularly when the trial court’s findings turn on an evaluation of the credibility and demeanor of the witnesses. Guzman v. State, 955 S.W.2d 85, 89 (Tex.Crim.App.1997). We apply the same deference in reviewing the trial court’s rulings on mixed questions of law [555]*555and fact if they turn upon a similar credibility evaluation. Id. If a mixed question of law and fact does not turn on a witness’s credibility and demeanor, however, we review the trial court’s determination de novo. Id.
B. Analysis
Under both points of error, appellant relies on federal cases analyzing confession law under constitutional standards. See, e.g., Mincey v. Arizona, 437 U.S. 385, 397-98, 98 S.Ct. 2408,2416, 57 L.Ed.2d 290 (1978); Henry v. Dees, 658 F.2d 406, 411 (5th Cir.1981).1 To challenge the volun-tariness of a custodial confession under federal constitutional law, there must be a showing of improper police conduct. Colorado v. Connelly, 479 U.S. 157,163-67,107 S.Ct. 515, 519-22, 93 L.Ed.2d 473 (1986); Lane v. State, 933 S.W.2d 504, 511-12 (Tex.Crim.App.1996).
During the hearing, appellant argued that the confession was involuntary because appellant has a bipolar disorder and was exhibiting symptoms of this disorder during the videotaped confession. On appeal, appellant also argues that his confession was involuntary because he was injured at the time and experiencing some pain and because Officer Guidry falsely told him that he had been identified in a photographic line-up by some witnesses.
The State argues that appellant did not present any evidence of improper police conduct during the hearing. The fact that Officer Guidry’s statement that appellant had been identified by witnesses was false was not established until after the videotaped confession had been admitted into evidence during the trial and published to the jury.
“The burden of proof at the hearing on admissibility is on the prosecution, which must prove by a preponderance of the evidence that the defendant’s statement was given voluntarily.” Alvarado v. State,
Free access — add to your briefcase to read the full text and ask questions with AI
OPINION
LAURA CARTER HIGLEY, Justice.
Cody Lee Oursbourn, appellant, was charged by indictment with aggravated robbery. Tex. Pen.Code Ann. § 29.03 (Vernon 2003). Appellant entered a plea of not guilty. The jury found him guilty, found an enhancement paragraph to be true, and assessed punishment at 75 years’ confinement.
Appellant raises four points of error. In his first point of error, appellant contends that the trial court erred in faffing to file written findings of fact and conclusions of law. In his second point of error, appellant contends that the trial court erred in faffing to provide jury instructions sua sponte on the law of voluntariness of custodial confessions. In his third and fourth points of error, appellant contends that the trial court abused its discretion in admitting appellant’s custodial confession into evidence.
We affirm.
Background
On November 22, 2003, Frances Rapp, complainant, exited her car to go to a club on Richmond Avenue. After she stepped out of the car, she was approached by a gunman who instructed her to give him the keys to the car. Rapp complied, and the gunman drove away. Rapp reported the robbery to the police and contacted On-Star, which was able to track the car’s location.
Later that night, On-Star notified the police of the location of the car. Sergeant R.L. de los Santos went to the location and saw the car parked in an apartment complex. A few minutes later, someone got into the car and left. Sergeant de los Santos followed the car, and before he could activate his lights, the driver sped [554]*554away. Sergeant de los Santos pursued the driver. Shortly afterwards, the driver stopped the car and attempted to flee on foot. During the chase, the driver tripped and sustained an injury to his head. The driver was identified as Cody Lee Oursb-ourn, appellant.
The police took appellant into custody, and Officer Colleen Guidry met with him on November 24, 2003 for an interrogation. At the time, appellant was in a neck brace, and at one point complained of feeling pain in his head due to the injury. Officer Guidry notified appellant of his rights, and appellant indicated that he understood them.
Officer Guidry had earlier presented a photographic line-up to Rapp and another witness. Although a photograph of appellant was included in the line-up, neither witness identified appellant as the robber. Officer Guidry told appellant, however, that he had been identified as the robber. After this, appellant admitted to the robbery and stated facts that corroborated the version of events that Rapp had given to the police.
Appellant has been diagnosed with a bipolar disorder. Appellant’s mother testified that on the day of the robbery and on the day that she picked appellant up from the police, appellant had been exhibiting manic behavior and that this could have affected the voluntariness of appellant’s confession.
At trial, appellant raised a challenge to the voluntariness of his custodial confession. The trial court held a hearing and overruled appellant’s motion to suppress. The issue of the voluntariness of appellant’s confession was then raised before the jury during the trial.
Findings of Fact and Conclusions of Law
In his first point of error, appellant argues that the trial court erred in failing to file written findings of fact and conclusions of law concerning the voluntariness of his confession. After a hearing on the voluntariness of a custodial confession, the trial court is required to file written findings of fact and conclusions of law. Tex. Code Ceim. PeoC. Ann. art. 38.22 § 6 (Vernon 2005). On this Court’s own motion, we abated the case and remanded it to the trial court to file written findings of fact and conclusions of law. Pursuant to our order, the trial court entered the appropriate findings and conclusions.
Appellant’s first point of error is overruled as moot. Rocha v. State, 16 S.W.3d 1,10 (Tex.Crim.App.2000).
Admission of Custodial Confession
In his third and fourth points of error, appellant argues that the trial court erred in admitting his custodial confession into evidence. Specifically, appellant argues that he had not voluntarily, knowingly, and intelligently waived his rights and that the interrogating officer overbore his will to obtain the confession.
A. Standard of Review
We review the trial court’s ruling on a motion to suppress evidence for an abuse of discretion. Villarreal v. State, 935 S.W.2d 134, 138 (Tex.Crim.App.1996). “At the hearing on the motion, the trial court is the sole judge of the credibility of the witnesses and the weight to be given their testimony.” Id. In reviewing the record, we defer to the trial court’s determination of facts, particularly when the trial court’s findings turn on an evaluation of the credibility and demeanor of the witnesses. Guzman v. State, 955 S.W.2d 85, 89 (Tex.Crim.App.1997). We apply the same deference in reviewing the trial court’s rulings on mixed questions of law [555]*555and fact if they turn upon a similar credibility evaluation. Id. If a mixed question of law and fact does not turn on a witness’s credibility and demeanor, however, we review the trial court’s determination de novo. Id.
B. Analysis
Under both points of error, appellant relies on federal cases analyzing confession law under constitutional standards. See, e.g., Mincey v. Arizona, 437 U.S. 385, 397-98, 98 S.Ct. 2408,2416, 57 L.Ed.2d 290 (1978); Henry v. Dees, 658 F.2d 406, 411 (5th Cir.1981).1 To challenge the volun-tariness of a custodial confession under federal constitutional law, there must be a showing of improper police conduct. Colorado v. Connelly, 479 U.S. 157,163-67,107 S.Ct. 515, 519-22, 93 L.Ed.2d 473 (1986); Lane v. State, 933 S.W.2d 504, 511-12 (Tex.Crim.App.1996).
During the hearing, appellant argued that the confession was involuntary because appellant has a bipolar disorder and was exhibiting symptoms of this disorder during the videotaped confession. On appeal, appellant also argues that his confession was involuntary because he was injured at the time and experiencing some pain and because Officer Guidry falsely told him that he had been identified in a photographic line-up by some witnesses.
The State argues that appellant did not present any evidence of improper police conduct during the hearing. The fact that Officer Guidry’s statement that appellant had been identified by witnesses was false was not established until after the videotaped confession had been admitted into evidence during the trial and published to the jury.
“The burden of proof at the hearing on admissibility is on the prosecution, which must prove by a preponderance of the evidence that the defendant’s statement was given voluntarily.” Alvarado v. State, 912 S.W.2d 199, 211 (Tex.Crim.App.1995). During the hearing, Officer Guidry testified about her interrogation of appellant. Her testimony was uncontroverted and no other evidence was presented to suggest that there was any improper police conduct. The evidence, therefore, supports the trial court’s findings that Officer Guidry informed appellant of his rights and that she did not threaten him or offer him any inducements. Accordingly, the State met its burden at the hearing, and the trial court acted in its discretion concluding that appellant’s confession was voluntary and admissible.
On appeal, appellant cites Officer Gui-dry’s admission that during the interrogation she falsely told him that he had been identified in a photographic line-up by some witnesses as proof of improper police conduct. However, this admission only came after the videotape had been admitted into evidence at trial and had been published to the jury. Appellant never re-urged his motion after this point and never asked the court to consider this as improper police conduct for purposes of suppression.
We review the trial court’s ruling in light of what was before the trial court at the time the ruling was made. Weatherred v. State, 15 S.W.3d 540, 542 (Tex.Crim.App.2000). Accordingly, the trial court did not abuse its discretion in admitting appellant’s videotaped custodial confession into evidence.2
[556]*556We overrule appellant’s third and fourth points of error.
Jury Charge
In his second point of error, appellant argues that the trial court erred in failing to provide jury instructions sua sponte on the law of voluntariness of custodial confessions.
The Court of Criminal Appeals has recently recognized a potential conflict in the law regarding whether the trial court is required to include sua sponte a jury instruction on the voluntariness of a custodial confession when the issue is raised by the evidence. Perry v. State, 158 S.W.3d 438, 443 & n. 1 (Tex.Crim.App.2004).3 One line of cases is represented by Mendoza v. State, 88 S.W.3d 236, 239 (Tex.Crim.App.2002).4 The other line of cases is represented by Thomas v. State, 723 S.W.2d 696, 707 (Tex.Crim.App.1986).5
Under Mendoza, “[t]he trial court must instruct the jury to disregard illegally obtained evidence if the defendant [1] raises a fact issue concerning the manner in which the evidence was obtained and [2] requests the instruction.” Mendoza, 88 S.W.3d at 239. Without a request from the defendant, the trial court is not required to include an instruction on volun-tariness, and there is no error. See id.
Under Thomas, “where jury charge error is first raised on appeal, this Court will consider the complaint, albeit under a more exacting harm analysis if error is found.... Therefore, whether appellant properly preserved any asserted jury charge error will only be relevant should we find that error actually occurred.” Thomas, 723 S.W.2d at 707. Under this standard, the trial court is required to include an instruction on voluntariness, although the standard of review for harm is elevated if the defendant does not also request an instruction. See id.
Both standards require the issue of vol-untariness to be raised by the evidence.6 Mendoza, 88 S.W.3d at 239; Thomas, 723 5.W.2d at 707. The distinction between them is that one requires the defendant to request an instruction before error can be [557]*557found, and the other changes the standard of review for harm if the defendant does not request an instruction. For reasons given below, we follow the Mendoza line of cases based on our belief that such cases present the more appropriate standard for appellate analysis. First, however, we must discuss two issues raised by the State.
1. State’s Arguments
The State argues that we need not reach the issue of whether the trial court should have sua sponte included a jury instruction on voluntariness because there was no factual dispute “with respect to the manner in which the confession was obtained.” We disagree.
We are asked to determine whether an instruction on voluntariness should have been included in the charge to the jury — whether the jury should have been permitted to decide whether the confession was voluntary. When the trial court is asked to submit instructions on defensive issues, the standard is whether there is some evidence to support a jury finding on that issue. Brown v. State, 955 S.W.2d 276, 279 (Tex.Crim.App.1997). For defensive issues, instructions are required regardless of whether the evidence raised “is strong, feeble, unimpeached, or contradicted, and even if the trial court is of the opinion that the testimony is not entitled to belief.” Id. (quoting Williams v. State, 630 S.W.2d 640, 643 (Tex.Crim.App.1982)). The Court of Criminal Appeals has recognized a challenge of the voluntariness of a confession to be a defensive issue. Mendoza, 88 S.W.3d at 239. Accordingly, we only review the record for some evidence of a factual dispute.
Under that standard, there was evidence presented before the jury that appellant was in pain, was lied to about the evidence against him, and displayed characteristics of being in a vulnerable mental state due to his bipolar disorder. On the other hand, there was also testimony that appellant was calm, able to understand the questions asked of him and respond intelligently, and was not exhibiting signs of either severe depression or mania during the interrogation. We hold that there was some evidence to raise the issue of volun-tariness and to create a factual dispute as to voluntariness.
The State also argues that an instruction on voluntariness due to appellant’s bipolar disorder would be an impermissible comment on the weight of the evidence. The State correctly asserts that an instruction focusing on illness as a factor would constitute an impermissible comment on the weight of the evidence. Rocha, 16 S.W.3d at 21. However, we do not read appellant’s point of error so broadly. Appellant argues only that an instruction on the law of voluntariness should have been included in the jury charge. This is permissible. Mendoza, 88 S.W.3d at 239. Appellant refers only to his bipolar disorder as a part of the fact issue that raised voluntariness, not as to what should have been included in the instruction itself.
2. Standard for Instruction on Vol-untariness
There are three reasons that lead us to the conclusion that the Mendoza line of cases should apply to considering issues of voluntariness instructions in the jury charge. First, the Court of Criminal Appeals has expressed a preference for Mendoza. Second, the Court of Criminal Appeals has treated a challenge to the voluntariness of a custodial confession as a defensive issue, which must be requested to be included in the jury charge. Third, the language in article 38.22 of the Code of Criminal Procedure supports a requirement of a request before error is found in the jury charge.
a. Favorability of Mendoza
[558]*558Even in Perry, in which the Court of Criminal Appeals raised the issue of a potential conflict between Mendoza and Thomas, the court indicated a preference for Mendoza. Perry, 158 S.W.3d at 443. In Perry, the court first stated the Mendoza standard as the correct form of analysis and then cited Thomas as a possible conflict to this standard. Id. This preference is supported by the case law.
As an initial matter, it is important to note that the Mendoza line of cases has been consistently applied to issues of vol-untariness instructions in the jury charge. See, e.g., Perry, 158 S.W.3d at 443 (considering whether there were disputed facts relevant to voluntariness of oral statement); Mendoza, 88 S.W.3d at 238 (considering whether proposed instructions applying law on voluntariness to facts of case were properly excluded); Muniz v. State, 851 S.W.2d 238, 254 (Tex.Crim.App.1993) (considering whether “the trial court erred in refusing to submit to the jury a question about whether he had confessed voluntarily or only as the result of coercion and/or promises”).
On the other hand, it appears that the Thomas line of cases has never been applied to issues of voluntariness. See, e.g., Pickens v. State, 165 S.W.3d 675, 680 (Tex.Crim.App.2005) (considering trial court’s failure to sua sponte include instruction on disregarding evidence unless jury found search of car to be legal); Thomas, 723 S.W.2d at 706 (considering whether trial court erred in refusing to instruct jury to consider whether request for counsel constituted a refusal to provide breath sample); Almanza v. State, 686 S.W.2d 157, 159 (Tex.Crim.App.1985) (considering standard of review for error in jury charge when aggravation feature was disjoined from rape).
The confusion over the applicability of Thomas apparently stems from two circumstances. First, both lines of cases analyze error in the jury charge under Code of Criminal Procedure article 38.23. Tex. Code Crim. Proo. Am art. 38.23 (Vernon 2005); Mendoza, 88 S.W.3d at 239; Thomas, 723 S.W.2d at 707. Cases involving issues of error in the jury charge are commonly analyzed under article 38.23 using the Thomas/Almanza standard of review. Analyzing the Mendoza line of cases under article 38.23, but using a different standard of review, has allowed for confusion over a conflict in the law.
Second, when the Court stated the standard of review in Mendoza, it cited Thomas as authority. Mendoza, 88 S.W.3d at 239. Athough Muniz was cited, it was not cited for that point of law. Id. This conflated the two separate lines of cases into one, and the current confusion resulted. However, the Court of Criminal Appeals has continued to indicate its preference for Mendoza in voluntariness cases. Perry, 158 S.W.3d at 443.
b. Voluntariness as a Defensive Issue
In the Mendoza line of cases, the Court of Criminal Appeals has treated a challenge to the voluntariness of a confession as a defensive theory. See, e.g., Mendoza, 88 S.W.3d at 239; Muniz, 851 5.W.2d at 254. To be included in the jury charge, a defensive issue must be formally requested. Tex.Code Crim. Proo. Ann. art. 36.14 (Vernon Supp.2005); Posey v. State, 966 S.W.2d 57, 60-61 (Tex.Crim.App.1998). Without a formal request, there is no error in the jury charge and Almanza does not apply. Id. at 61.
c. Language of Article 38.22, Section 6, of the Code of Criminal Procedure
Article 36.14 of the Code of Criminal Procedure requires a party to make specific objections to the charge. Tex.Code Crim. Proc. Ann. art. 36.14. Without this objection, there is no error in the charge. Posey, 966 S.W.2d at 61. Ar-[559]*559tide 38.22 section 6 requires a trial court to include an instruction on voluntariness in the charge. Tex.Code Crim. Proc. Ann. art. 38.22, § 6 (Vernon 2005). However, this requirement does not take effect until the defendant submits to the jury evidence that would raise a fact issue about volun-tariness. Id. Because the trial court’s obligation does not arise until the defendant meets his obligation, it is appropriate to require the defendant to bring to the trial court’s attention that his obligations have been met. Otherwise, there is no error. See Posey, 966 S.W.2d at 61.
The record reflects that appellant did not object to the jury charge or in any way call to the attention of the trial court that he had adequately raised the issue of vol-untariness before the jury. Accordingly, we find no error in the charge. Mendoza, 88 S.W.3d at 239.
We overrule appellant’s second point of error.
Conclusion
We affirm the judgment of the trial court.
Justice JENNINGS, dissenting.