Bryan Arriaga v. State

             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 

(f); 

(d). The provision applies only if the juvenile

                                           4
received a commitment or sentence to the Texas Youth Commission for the felony

adjudication. See 

(f); 

(d).

It does not apply if the felony adjudication was for a state jail felony. See 

(a).

      The juvenile judgment against Arriaga for burglary of a habitation was a

conviction of a second-degree felony for enhancement purposes. See 

(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

, 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, 

 (Tex. Crim. App. 1987)
(addressing issue of habitual-offender notice), with Crawford v. State, 

 (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, 

(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, 

 (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, 

 (quoting Hollins v. State, 

 (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, 

 (Tex. Crim. App.

[Panel Op.] 1981); Hollins, 

.              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, 

, 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, 

 (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,

; see also Hudson v. State, 

 (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, 

.

       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, 

, 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.

.


                                          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. 

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, 

 (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, 

(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, 

 (Tex. Crim. App. 1984); Lugo v.

State, 

, 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, 

 (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,

, 

 (2012), and Graham v. Florida, 

, 

 (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, 

, 

; Graham, 560 U.S.

at 55, 130 S. Ct. at 2019; see also Roper v. Simmons, 

, 

 (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, 

, 

.

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, 

, 995–96, 

(1991) (quoting Furman v. Georgia, 

, 

 (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, 

,

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, 

 (Tex. App.—El Paso

2003, pet. ref’d).   The burden rests on the appellant to establish the statute as

unconstitutional. 

 Moreover, as an intermediate appellate court, we must follow

binding precedent of the Texas Court of Criminal Appeals.            McKinney v. State,

 (Tex. App.—Houston [1st Dist.] 2005), aff’d, 

(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, 

 (Tex. Crim. App.

1976); Armendariz v. State, 

 (Tex. Crim. App. 1975); Thrash v. State,

 (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, 

, 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, 

 (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. 

 (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). 

(a); 

(f). Section 54.04(a) states that “[t]here is no right to a jury at the disposition

hearing . . . .” 

(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,

 (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, 

 (Tex. Crim. App. 2006);

Powell v. State, 

 (Tex. Crim. App. 2001); Montgomery v. State,

 (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, 

 (Tex. Crim. App. 2002); Powell, 

.

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, 

 (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, 

 (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, 

 (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, 

 (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, 

(Tex. Crim. App. 1999) (quoting Montgomery, 

).

      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, 

 (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, 

 (Tex. App.—Dallas 2003, pet. ref’d) (“For the purposes
of their admission, x-rays are treated as photographs.”); Hall v. State, 

 (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, 

 (Tex. Crim. App. 2004); King v. State,

 (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, 

 (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, 

 (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, 

 (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, 

 (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, 

 (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, 

, 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,

, 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, 

 (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, 

 (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, 

 (“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 

 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, 

 (Tex. Crim. App. 2007);

Guzman v. State, 

 (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, 

; Estrada v. State, 

 (Tex. Crim. App.

2005); Johnson v. State, 

, 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, 

 (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, 

 (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, 

 (Tex. Crim. App. 1995); see also Colorado v.

Connelly, 

, 

, 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, 

 (Tex. App.—Houston [14th Dist.] 2000, pet.

ref’d); see Gomes v. State, 

, 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, 

; see also Schneckloth v. Bustamonte, 

, 

 (1973); Creager v. State, 

 (Tex. Crim.

App. 1997).

      In determining the voluntariness of a defendant’s statement, police falsehoods

are relevant. Frazier v. Cupp, 

, 

 (1969); Green v.

State, 

 (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, 

;

Jeffley v. State, 

 (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, 

 (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, 

, 

 (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, 

, 

 (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, 

, 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, 

 (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,

 (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, 

 (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, 

 (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, 

. 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, 

, 316–17 (Tex. Crim. App. 1992); Hernandez v.

State, 

 (Tex. Crim. App. 1991). Some evidence must have been

presented to the jury that the defendant’s confession was not given voluntarily.

Alvarado, 

 n.9; Hernandez, 

. 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, 

 (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, 

, 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, 

 (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 

 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




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