BORREGO v. STATE (1998)

OPINION

Appellant, John Paul Borrego, was convicted by a jury of the crime of capital murder.   Because the State did not seek the death penalty, he received a mandatory sentence of life imprisonment from the trial judge.   See Tex. Penal Code Ann. § 12.31(a) (Vernon 1994).   Appellant brings 15 points of error on appeal challenging the sufficiency of the evidence to support his conviction and the denial of the motion to suppress his confession.   We affirm.

The Facts

Twenty-five-year-old Wendy White, the complainant, and James Sifuentes, appellant's first cousin, lived together in an apartment in Houston, Texas, for six years.   James's twin brother Mark shared a nearby apartment with Gerald Vidaurre.   Appellant frequently spent the night in Vidaurre's apartment, though he was never invited to stay and never had any money for food or rent.   James and Mark Sifuentes had another brother, Gene, who had an apartment in the same complex with Wendy and James.   Wendy White knew appellant through her relationship with James.

James Sifuentes spent the night of May 8, 1994, with Wendy.   He had to be at work early on May 9, so he left while Wendy was still asleep.   He set the security alarm and locked the door on his way out at 5:45 a.m. Wendy White was fine when she spoke with her mother by telephone twice that day at 10:00 a.m. and 12:50 p.m.

James Sifuentes left work at 4:00 p.m. and arrived at his brother Gene's apartment at 5:00.   Appellant arrived, as well as James's brother-in-law, Keith Blackmon.   Gene Sifuentes wanted to roll a marihuana cigarette, but he had no papers.   Appellant went to another apartment and bought marihuana.   He had approximately thirty or forty dollars in his possession which he had not had two days earlier.   James phoned Wendy's apartment, but there was no answer.   When appellant returned to Gene's apartment, James left for Wendy's to look for rolling papers.

James Sifuentes noticed that Wendy's car was parked in front of the apartment, which he considered odd because she had not answered the telephone.   He used his key to open the locked door.   The security alarm was not on.   James went through the apartment calling Wendy's name.   He found her body underneath a pile of sheets on the bedroom floor.   James screamed and immediately reached for the phone Wendy kept by the bed, but it was gone.   He ran outside screaming for help, shouted to a neighbor to call 911, then got into his vehicle and returned to Gene's apartment.

James, Gene, Mark, Keith Blackmon, and appellant all went to Wendy's apartment.   Appellant did not go into the bedroom.   While they were there, the police and paramedics arrived.

There was no sign that the apartment had been forcibly entered, but the bedroom was in chaos.   There were blood spatters and smears on the walls and carpet.   The telephone cord had been yanked from the wall with such force that the plastic plug remained in the outlet.   The mattress was partially off the box spring and all the sheets, a comforter, and a pillow were on the floor.   The waste basket had been knocked over.

Wendy White was wearing a bra, T-shirt, shorts, socks, and tennis shoes.   Her purse, a videocassette recorder, and a telephone were missing from the apartment.

Officers found a metal steak knife in the kitchen sink.   The knife had no blood on it and was not remarkable.

An autopsy revealed three stab wounds to the complainant's chest, one of which was a fatal wound to the left lung.   There were hemorrhages, indicating asphyxiation, on the face and neck.   There were also abrasions on both sides of the neck indicative of strangulation with hands, or with something hand-held.   Even if the complainant had not been stabbed, she would have died of strangulation.   The clothes worn by Wendy White at the time of her death were turned over to police.   The medical examiner's office also submitted vaginal swabs to the police department crime lab.

Two weeks after the murder, James Sifuentes noticed that appellant had a pair of small Ray Ban sunglasses exactly like the ones Wendy kept in her purse.   Appellant said that the glasses belonged to his brother-in-law.   He would not look at James afterwards.

Police investigators interviewed appellant on July 16, 1994.   He said that he had been in Damon, Texas, visiting relatives on the day of the murder and that he went to Gene's apartment that evening before the body was discovered.   He also told police that he had purchased the sunglasses for ten dollars from a man on Kegans Ridge.   The police determined from members of appellant's family that he had not been in Damon, Texas, on May 9, 1994.

On July 29, 1994, appellant voluntarily gave blood and hair samples to the police.   Confronted with the fact that his family contradicted his alibi, appellant said that he had been with a prostitute whom he did not know how to contact.

Crime lab analysis determined that there was semen on the crotch of the complainant's shorts.   The vaginal swab was also positive for semen.   Polymerase chain reaction DNA analysis of the semen on the shorts and the vaginal swab was consistent with appellant's known DNA. Only 4% of the Hispanic population would produce the same result.   Restriction fragment length polymorphism DNA analysis of the shorts and the vaginal swab was also consistent with appellant's DNA. This test was more specific and narrowed the possible matches to one of 232 of the Hispanic population.   Another DNA comparison of the semen in the crotch of the complainant's shorts with appellant's DNA, using the restriction fragment length polymorphism method, resulted in a match that would occur with only one of 30,000 members of the Hispanic population.

Police investigators received the result of the DNA analysis on February 9, 1995, and obtained a warrant for appellant's arrest.   Appellant was arrested after a foot chase.   He was advised of his legal rights by the police and said that he understood his rights.   Appellant waived his rights and gave an oral statement which was recorded on audiotape.   Appellant was then taken to a magistrate and again advised of his rights.   Appellant's taped statement was admitted into evidence.

Appellant's version of the events both on the audiotape and from the witness stand was that he left his vehicle at Mark's apartment and walked to Wendy White's apartment at about 1:30 or 2:00 p.m. She let him in, they both removed all of their clothes, and engaged in consensual sexual intercourse.   Then they put on their clothes and appellant made a phone call to ask for a ride home.   Wendy became so enraged because he was leaving that she went to the kitchen and got a knife.   She ran at appellant with the knife in her hand, swinging it at him and screaming.   Appellant grabbed the knife and blacked out.   His next recollection was of Wendy White on the floor, stabbed and bloody.   Appellant guessed that he had stabbed and choked her, and he realized that he was in trouble.   He rinsed off the knife, put it back in the kitchen drawer, and threw the bed covers on top of the body.   In an effort to make it appear that the apartment had been burglarized, appellant put a telephone, the VCR, and the complainant's purse into a pillowcase and left the apartment.   He locked the front door with her key, walked down Wilcrest, and threw the pillowcase and its contents into a convenience store dumpster.   Appellant then walked back to Mark's apartment.

Appellant conceded that he killed the complainant, but he maintained that the sexual intercourse and the theft were entirely separate events occurring before and after the murder.

Legal and Factual Sufficiency

a. Waiver

 The State contends that appellant admitted his guilt during his testimony and waived any complaint concerning the sufficiency of the evidence, citing DeGarmo v. State, 691 S.W.2d 657, 661 (Tex.Crim.App.1985), McGlothlin v. State, 896 S.W.2d 183, 186 (Tex.Crim.App.1995), and McWhorter v. State, 911 S.W.2d 538, 539 (Tex.App.-Beaumont 1995, no pet.).

We disagree.   It is inappropriate to find DeGarmo waiver based on appellant's testimony.   Appellant admitted the killing, but testified that he did not have the requisite intent to be guilty of capital murder.   See Lee v. State, 964 S.W.2d 3 (Tex.App.-Houston [1st Dist.] pet. ref'd) (designated for publication).   Therefore, appellant's statements did not constitute an admission that he committed the crime for which he was charged and convicted, i.e., the crime of capital murder.  Id., at 7-8. See also Smyth v. State, 634 S.W.2d 721, 724 (Tex.Crim.App.1982).

We overrule the State's contention that appellant waived his right to challenge the sufficiency of the evidence.

b. Standards of Review

In points of error one, two, four, six, and eight, appellant challenges the legal sufficiency of the evidence to support his conviction.   When conducting a legal sufficiency review of the evidence, we view the evidence in the light most favorable to the prosecution.  Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979);  McDuff v. State, 939 S.W.2d 607, 614 (Tex.Crim.App.1997).   The issue is whether any rational trier of fact could find the crime's essential elements beyond a reasonable doubt.   Jackson, 443 U.S. at 319, 99 S.Ct. at 2789;  McDuff, 939 S.W.2d at 614;  Green v. State, 891 S.W.2d 289, 297 (Tex.App.-Houston [1st Dist.] 1994, pet. ref'd).   If there is evidence that establishes guilt beyond a reasonable doubt, and if the fact finder believes the evidence, we will not reverse the judgment for insufficient evidence.  Moreno v. State, 755 S.W.2d 866, 867 (Tex.Crim.App.1988);  Reece v. State, 878 S.W.2d 320, 325 (Tex.App.-Houston [1st Dist.] 1994, no pet.).

In points of error three, five, seven, and nine, appellant challenges the factual sufficiency of the evidence to support his conviction.   Since appellant's brief was filed in this Court, the Court of Criminal Appeals issued its opinion in Cain v. State, 958 S.W.2d 404 (Tex.Crim.App.1997), further explaining its opinion in Clewis v. State, 922 S.W.2d 126 (Tex.Crim.App.1996).   To conduct a factual sufficiency review, we do not view the evidence through the prism of “in the light most favorable to the prosecution.”  Cain, 958 S.W.2d at 407;  Clewis, 922 S.W.2d at 129 (Tex.Crim.App.1996);  Peoples v. State, 928 S.W.2d 112, 118 (Tex.App.-Houston [1st Dist.] 1996, pet. ref'd).   Instead, we examine all of the evidence impartially, and set aside the verdict only if it is so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust.   Cain, 958 S.W.2d at 410;  Clewis, 922 S.W.2d at 129;  Peoples, 928 S.W.2d at 118.   The jury is the judge of the facts.  Tex.Code Crim. P. Ann. art. 36.13 (Vernon 1981);  Cain, 958 S.W.2d at 407.   We must defer to jury findings, and may find the evidence factually insufficient only where necessary to prevent manifest injustice.  Cain, 958 S.W.2d at 407.

c. Manner and Means of Death

 In point of error one, appellant contends that the evidence was legally insufficient to prove beyond a reasonable doubt that the complainant's death was caused by stabbing or strangulation, as the jury was charged, because the assistant medical examiner testified that death resulted from a combination of both.

The first paragraph of the indictment charged capital murder based on the underlying offense of aggravated sexual assault.   Omitting the formalities, the paragraph alleged that appellant did:

while in the course of committing and attempting to commit the aggravated sexual assault of Wendy White, intentionally cause the death of Wendy White by stabbing Wendy White with a deadly weapon, namely, a sharp object and by strangling Wendy White with a deadly weapon, namely an unknown object.

(Emphasis added.)   The second paragraph charged capital murder with the underlying offense of robbery.   Again omitting the formal portions, the paragraph charged that appellant did:

while in the course of committing and attempting to commit the robbery of Wendy White, intentionally cause the death of Wendy White by stabbing Wendy White with a deadly weapon, namely a sharp object and by strangling Wendy White with a deadly weapon, namely an unknown object.

(Emphasis added.)   The jury was charged disjunctively, in pertinent part, as follows:

Now, if you find from the evidence beyond a reasonable doubt that on or about the 9th day of May, 1994, in Harris County, Texas, the defendant, John Paul Borrego, did then and there unlawfully, while in the course of committing or attempting to commit the aggravated sexual assault of Wendy White, intentionally cause the death of Wendy White by stabbing Wendy White with a deadly weapon, namely a sharp object or by strangling Wendy White with a deadly weapon, namely an unknown object;  or

If you find from the evidence beyond a reasonable doubt that on or about the 9th day of May, 1994, in Harris County, Texas, the defendant, John Paul Borrego, did then and there unlawfully, while in the course of committing or attempting to commit the robbery of Wendy White, intentionally cause the death of Wendy White by stabbing Wendy White with a deadly weapon, namely a sharp object or by strangling Wendy White with a deadly weapon, namely an unknown object, then you will find the defendant guilty of capital murder as charged in the indictment.

(Emphasis added.)

Appellant acknowledges that the proper practice is to plead in the conjunctive and charge in the disjunctive, as was done in this case.   See Kitchens v. State, 823 S.W.2d 256, 258 (Tex.Crim.App.1991);  Zanghetti v. State, 618 S.W.2d 383, 386-88 (Tex.Crim.App.1981);  Renfro v. State, 827 S.W.2d 532, 536 (Tex.App.-Houston [1st Dist.] 1992, pet. ref'd).   He argues, however, that measured against the disjunctive charge, the evidence in this case falls short because the complainant died from both the stabbing and the strangulation.   Appellant refers to the assistant medical examiner's testimony to that effect, and cites the Benson-Boozer line of cases.¹

Since appellant filed his brief in this Court, the Court of Criminal Appeals issued its opinion in Malik v. State, 953 S.W.2d 234 (Tex.Crim.App.1997), expressly overruling Benson and its progeny.  Malik, 953 S.W.2d at 239.   The court held that sufficiency of the evidence should be measured by the elements of the offense as defined by the hypothetically correct jury charge for the case.  Id. at 240.   See also Amos v. State, 955 S.W.2d 468, 469 (Tex.App.-Fort Worth 1997, no pet. reported).   Therefore, we no longer measure the sufficiency of the evidence by the jury charge given.

Even if we were still guided by the principles of Benson-Boozer, in this case the evidence would still be sufficient under the jury charge that was given.   The assistant medical examiner testified that each cause of death was sufficient in and of itself to kill the complainant.

We overrule point of error one.

d. Aggravated Sexual Assault

 In points of error two and four, appellant contests the legal sufficiency of the evidence to prove (1) that he committed an aggravated sexual assault of the complainant and (2) that the murder occurred during the commission or attempted commission of aggravated sexual assault.   In points of error three and five, appellant challenges the factual sufficiency of the evidence on these grounds.

Appellant committed aggravated sexual assault if he intentionally or knowingly caused the penetration of the female sexual organ of the complainant by any means without her consent while causing serious bodily injury or death in the course of the same criminal episode.   See Tex. Penal Code Ann. § 22.021(a)(1)(A), (2)(A) (Vernon 1994 & Supp.1998).   Appellant attempted to commit the offense if, with specific intent to commit the offense, he did an act amounting to more than mere preparation that tended but failed to effect the commission of the offense intended.   His conduct constituted an attempt to commit an aggravated offense if an element that aggravated the offense accompanied the attempt.   See Tex. Penal Code Ann. § 15.01(a), (b) (Vernon 1994).

Appellant bases his argument on the assistant medical examiner's testimony that the autopsy revealed no genital trauma.   This evidence, he contends, was consistent with his testimony that he and the complainant engaged in consensual sexual intercourse.

First, the assistant medical examiner stated that the fact that there were no bruises or lacerations to the complainant's vagina did not mean she had not been sexually assaulted.   Second, appellant's version of what transpired, i.e., consensual sexual intercourse followed by an unrelated murder, was not consistent with the physical evidence.   Appellant testified that he and the complainant removed all of their clothes and engaged in consensual sexual intercourse.   Then they both dressed.   It was later that she became angry and obtained a kitchen knife with which he stabbed her.

However, when she was stabbed, the complainant's bra was unfastened.   She was wearing a bra with a front closure that was open and laying to the side.   The bra was open when the complainant was stabbed in the chest because the bra had not been cut.   From the location of the stab wounds, it would have been cut had it been fastened.   Also, there were no panties found on or near the complainant's body.

 Furthermore, as the exclusive judge of the credibility of the witnesses and the weight to be given their testimony, the jury was free to reject appellant's version of the facts, whether contradicted or not.  Wilkerson v. State, 881 S.W.2d 321, 324 (Tex.Crim.App.1994);  see also Minx v. State, 615 S.W.2d 748, 749 (Tex.Crim.App.1981).

Viewed in the light most favorable to the verdict, this was evidence from which any rational trier of fact could find beyond a reasonable doubt that appellant caused the death of the complainant while in the course of committing and attempting to commit the aggravated sexual assault of the complainant.

Turning to a factual sufficiency review, appellant erroneously contends, as he did in his legal sufficiency points of error, that his testimony concerning the consensual nature of the sexual intercourse was uncontradicted.   He argues that the jury's finding against him on this issue was against the greater weight of the evidence and clearly unjust.

What weight to give contradictory testimonial evidence is within the sole province of the jury because it turns on an evaluation of credibility and demeanor.  Cain, 958 S.W.2d at 408-409.   The jury is the judge of the facts, and we must defer to the jury's determination of witness credibility.   Id. at 407.   Giving deference to the jury verdict and after examining all of the evidence impartially, we find that the verdict was not so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust.

Appellant cites Humason v. State, 728 S.W.2d 363 (Tex.Crim.App.1987), and Oaks v. State, 642 S.W.2d 174 (Tex.Crim.App.1982), which are inapposite to this appeal.   Those were circumstantial evidence cases in which acquittals for insufficient evidence were ordered based on the alternative reasonable hypothesis analytical construct disavowed in Geesa v. State, 820 S.W.2d 154, 159 (Tex.Crim.App.1991).

Appellant also cites Urbano v. State, 837 S.W.2d 114 (Tex.Crim.App.1992), for the proposition that his conviction can be sustained only by proof constituting a “high degree of certainty.”   In Urbano the Court wrote, “[W]e remain cognizant that ‘proof beyond a reasonable doubt’ means proof to a high degree of certainty,” citing Geesa v. State, 820 S.W.2d 154, 162 (Tex.Crim.App.1991).  837 S.W.2d at 116.   This citation to Geesa was erroneous.   The page of the Geesa opinion cited in Urbano set out the definitional instruction of “reasonable doubt” to be included in the jury charges of all criminal trials and does not include the words “high degree of certainty.”   In fact, they are not to be found in the Geesa opinion at all.   In Urbano the Court used the Jackson v. Virginia standard in deciding that “rational jurors could not conclude beyond a reasonable doubt” that Urbano had committed murder for remuneration.  Urbano v. State, 837 S.W.2d at 117.   We conclude that the “high degree of certainty” language in Urbano was not meant to establish a new standard of appellate review.

We overrule points of error two, three, four, and five.

The discussion of the remaining points of error does not meet the criteria for publication.  Tex.R.App. P. 47.4, and is thus ordered not published.

The judgment is affirmed.

e. Robbery

In points of error six and eight, appellant challenges the legal sufficiency of the evidence to prove (1) that he committed the offense of robbery and (2) that the murder occurred during the commission or attempted commission of robbery.   He maintains that he took the complainant's property only after her death to make it appear that the apartment had been burglarized, as he testified.   In points of error seven and nine, he contests the factual sufficiency of the evidence on these grounds.

Appellant committed robbery if, in the course of committing theft and with intent to obtain or maintain control of the property, he intentionally or knowingly caused bodily injury to the complainant.   See Tex. Penal Code Ann. § 29.02 (Vernon 1994).   Appellant attempted to commit the offense if, with specific intent to commit the offense, he did an act amounting to more than mere preparation that tended but failed to effect the commission of the offense intended.   See Tex. Penal Code Ann. § 15.01(a) (Vernon 1994).

In order for a murder to qualify as capital murder based on the underlying offense of robbery, the killer's intent to rob must be formed before or at the time of the murder.  Alvarado v. State, 912 S.W.2d 199, 207 (Tex.Crim.App.1995).   Otherwise, the offense is a first degree murder followed by theft.  Nelson v. State, 848 S.W.2d 126, 131 (Tex.Crim.App.1992).

The same argument raised by appellant in these points of error was raised and rejected in Nelson.   In that case, there was evidence that the defendant was in financial difficulties, indicating a possible motive for the crime.   The defendant also had time and opportunity to familiarize himself with the deceased's property and form the requisite intent.  Nelson v. State, 848 S.W.2d at 132.

Appellant was not working and had no money on the days preceding the murder.   He admitted during his testimony that he had been inside the complainant's apartment at other times before the day of the murder and that he stole the telephone, videocassette recorder, and the complainant's purse.   The items were never recovered.

Viewed in the light most favorable to the prosecution, this evidence was legally sufficient to establish that appellant caused the death of the complainant while in the course of committing and attempting to commit the robbery of the complainant.

Concerning the factual sufficiency of the evidence, appellant submits that there was no evidence that he used force to obtain or maintain control over any property belonging to the complainant, citing his own testimony that he appropriated the property after the complainant died to make it look like a burglary.

We must defer to the jury's determination of witness credibility.  Cain, 958 S.W.2d at 408-09.   Giving deference to the jury verdict and after examining all of the evidence impartially, we find that the verdict was not so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust.

In addition, in a capital murder prosecution the evidence need be sufficient to establish only one of the underlying felonies in the indictment.   Matamoros v. State, 901 S.W.2d 470, 474 (Tex.Crim.App.1995).   We have found that the evidence was legally and factually sufficient to support appellant's conviction based on the underlying felony of aggravated sexual assault.

We overrule points of error six, seven, eight, and nine.

Denial of the Motion to Suppress the Confession

Appellant filed a motion to suppress his confession, alleging that it was involuntary and obtained in violation of his constitutional and statutory rights.   The court heard evidence on this issue before trial, but deferred a finding.   After additional evidence was adduced in camera during the trial, the motion was denied.   Appellant brings six points of error alleging that the trial court erred.   In points ten through fourteen, he argues that his rights as guaranteed by the Fifth and Fourteenth Amendments of the United States Constitution, article 1, §§ 10 and 19, of the Texas Constitution, and articles 38.21 and 38.22 of the Texas Code of Criminal Procedure were violated.

a. The Facts

At the suppression hearing, the trial court heard the testimony of the two officers who arrested appellant and took his recorded statement, and that of appellant.

Investigator Brown and Sergeant Swaim of the Houston Police Department testified that they arrested appellant on March 8, 1995, after obtaining a warrant for his arrest from a district court judge.   They twice advised appellant of his legal rights in accordance with article 38.22, § 2(a) of the Code of Criminal Procedure (Vernon 1979) before they interviewed him.   Appellant understood and waived his rights.   The officers never threatened, intimidated or coerced appellant into making a statement, nor was he promised anything in exchange for his statement.   Appellant did not request an attorney, and he never requested to terminate the interview.   Appellant was legally warned a third time at the beginning of the audiotape on which he made his statement, in accordance with article 38.22, § 3(a)(2) of the Code of Criminal Procedure (Vernon Pamp.1998).

At the suppression hearing, appellant testified that he requested an attorney during the interview, but that one was never provided.   He testified that the officers threatened and physically intimidated him and that he made the audiotaped statement only because he was scared.

The trial judge made the following findings of fact and conclusions of law:

[T]he defendant was arrested on or about March 8th, 1995, pursuant to an arrest warrant that was issued by Judge Mary Bacon.   He was arrested in Fort Bend County at approximately 6:20 p.m., on March 8th, 1995.

Shortly thereafter he was read his rights which were in compliance with Art. 38.22 by Sergeant Swaim.   The defendant indicated at that time he understood those rights and did not indicate he was not going to talk to the officers at that point in time.

At approximately 6:55 p.m. on that date the interview began at the Fort Bend County Sheriff's Office between the defendant and Sergeant Swaim and Investigator Brown.

At approximately 9:05 p.m. the tape-recorded statement began.

During the time that taped interview was ensuing Sergeant Swaim left the room and made arrangements to provide a coke for the defendant.   At that point in time Investigator Brown and Sergeant Swaim had made accommodations for the defendant's personal comfort, i.e., they had offered him something to drink and offered him to go to the rest room during the time that they were interviewing him.

At no time did the defendant request a phone call or request an attorney or request to terminate the interview.

The officers, neither Swaim nor Brown, exercised any threats or coercion at any point in time in front of the defendant.

The defendant agreed to make a statement which has been marked as State's Exhibit No. 2.

The defendant was taken before a magistrate in Fort Bend County at approximately 10:10 p.m. on that same date and apprised of his rights under Art. 38.22 as well.

There were no promises of benefits extended to the defendant on behalf of the police department in order to induce him to make State's Exhibit No. 2, the tape-recorded statement.

Based upon those findings of fact I will conclude as a matter of law that the statement was made under voluntary conditions and will be admitted before the jury should it be offered by the State.

b. Standard of Review and Analysis

Since appellant's brief was filed, the Court of Criminal Appeals issued its opinion in Guzman v. State, 955 S.W.2d 85 (Tex.Crim.App.1997).   In that case, the court reaffirmed the long-standing rule that “appellate courts should show almost total deference to a trial court's findings of fact especially when those findings are based on an evaluation of credibility and demeanor-i.e., in reviewing a trial court's ruling on an ‘application of law to fact question,’ the appellate courts should view the evidence in the light most favorable to the trial court's ruling.”  Id. at 89.   See also State v. Chavarria, No. 01-96-01389-CR, slip op. at 4, --- S.W.2d ----, ---- (Tex.App.-Houston [1st Dist.] Nov.26, 1997) (designated for publication);  Whitten v. State, 828 S.W.2d 817, 820 (Tex.App.-Houston [1st Dist.] 1992, pet. ref'd).

However, concerning “mixed questions of law and fact” such as probable cause and reasonable suspicion for detention, the trial court's determinations should be reviewed de novo on appeal because those issues do not turn on witness credibility and demeanor.  Guzman, 955 S.W.2d at 87, citing Ornelas v. United States, 517 U.S. 690, 696-98, 116 S.Ct. 1657, 1662, 134 L.Ed.2d 911 (1996).   But the court restricted its holding:  “We merely decide that an abuse of discretion standard does not necessarily apply to ‘application of law to fact questions' the resolution of which does not turn on an evaluation of credibility and demeanor.”  Guzman, 955 S.W.2d at 89.2

Appellant's case is not one in which de novo review is appropriate because the issue of the voluntariness of his taped confession hinged on the credibility of the witnesses.   Therefore, the trial court was in an appreciably better position than a reviewing court to make the determination of voluntariness.   Accordingly, we give almost total deference to the trial court's resolution of the issues and view the evidence adduced at the suppression hearing in the light most favorable to the trial court's findings.

The record supports the trial court's findings that appellant's confession was given voluntarily, without coercion, and without promised benefit after appellant had been advised of his legal rights three times and agreed to give a statement.

Appellant's assertion that his statement was involuntary is based upon his testimony alone at the hearing.   The trial court is the sole judge of the credibility of the witnesses and the weight to be given their testimony at a suppression hearing.  Villarreal v. State, 935 S.W.2d 134, 138 (Tex.Crim.App.1996);  Lee, slip op. at 15, 964 S.W.2d at ----;  Straughter v. State, 801 S.W.2d 607, 609 (Tex.App.-Houston [1st Dist.] 1990, no pet.).   The trial judge is free to believe or disbelieve all or any part of a witness's testimony.  Lee, slip op. at 15, 964 S.W.2d at ----;  Porter v. State, 938 S.W.2d 725, 727 (Tex.App.-Houston [1st Dist.] 1996, pet. ref'd).   The trial judge in this case was therefore free to disbelieve appellant's testimony and to believe that of the officers.

We conclude that the trial court did not abuse its discretion in admitting the audiotaped confession into evidence, and that none of appellant's rights as guaranteed by the Fifth and Fourteenth Amendments of the United States Constitution, article 1, §§ 10 and 19, of the Texas Constitution, and articles 38.21 and 38.22 of the Texas Code of Criminal Procedure was abridged.

We overrule points of error 10, 11, 12, 13, and 14.

The Magistrate's Warning

In point of error fifteen, appellant submits that the trial court erred in overruling the motion to suppress his audiotaped confession because there was unnecessary delay in taking him before a magistrate after his arrest, in violation of Article 15.17(a) of the Code of Criminal Procedure.

Article 15.17(a) of the Code of Criminal Procedure reads in pertinent part:

In each case enumerated in this Code, the person making the arrest shall without unnecessary delay take the person arrested or have him taken before some magistrate of the county where the accused was arrested or, if necessary to provide more expeditiously to the person arrested the warnings described by this article, before a magistrate in a county bordering the county in which the arrest was made.

Tex.Code Crim. P. Ann. 15.17(a) (Vernon Supp.1998).

That appellant was taken to a magistrate and legally warned after his arrest is undisputed.   Appellant's complaint is that it was not “without unnecessary delay.”

The record of the suppression hearing reflects that appellant was first seen by the officers on the day of his arrest at about 6:00 p.m. in Rosenberg, Texas.   After the arrest, he was driven to the Fort Bend County Sheriff's office where he was interviewed from about 7:00 p.m. to 9:00 p.m. Appellant made his taped statement from 9:05 to 9:15 p.m. The officers then drove appellant to a magistrate who spoke to him at 10:10 p.m.

Appellant refers us to his testimony during the suppression hearing that he would not have made a statement if he had been advised of his legal rights by the magistrate beforehand.   However, appellant acknowledged at the hearing that he was advised of his legal warnings by the officers and told them that he understood his rights before he made his statement.   The warnings and appellant's response that he understood his rights are recorded at the beginning of the audiotape, in compliance with Article 38.22, § 3 of the Code of Criminal Procedure.

Absent a showing of a causal connection between an accused's confession and the failure to take him promptly before a magistrate, the validity of the confession is not affected.  Williams v. State, 692 S.W.2d 671, 675-76 (Tex.Crim.App.1984).   See also Jenkins v. State 912 S.W.2d 793, 807-08 (Tex.Crim.App.1995)(op. on reh'g);  Straughter, 801 S.W.2d at 610.

In Jenkins, 912 S.W.2d at 807, the Court of Criminal Appeals held that taking the defendant before a magistrate within approximately 16 hours after his arrest satisfied the “without unnecessary delay” requirement of article 15.17(a).   The defendant had voluntarily confessed within two hours of his arrest after being informed of his rights.   In this case, appellant voluntarily confessed approximately two hours after arriving at the Fort Bend County Sheriff's office and was taken before a magistrate within four hours after his arrest.

We find that there was no unnecessary delay in taking appellant to a magistrate after his arrest and that there was no causal connection between appellant's confession and the fact that he had not yet been warned by a magistrate.

We overrule point of error 15.

The judgment is affirmed.

I concur in the majority opinion and write separately only to address the issue of the waiver of appellant's final point of error.

The record reveals that this point of error was not preserved for our review.   The written motion to suppress does not include a complaint that there was unnecessary delay in taking appellant before a magistrate after his arrest.   This complaint was not argued at the conclusion of the suppression hearing, although defense counsel questioned appellant about whether he would have given a statement had he been taken to the magistrate first.   When the confession was offered into evidence by the State at trial, again the defense made no objection to its admission on this basis.   Therefore, this issue was never before the trial court for a ruling, and is presented for the first time on appeal.

The law is clear that even constitutional claims may be waived by failure to raise them at trial.  Broxton v. State, 909 S.W.2d 912, 918 (Tex.Crim.App.1995).   If the trial judge is not given an opportunity to rule on an issue, nothing is preserved for appellate review.   See Rezac v. State, 782 S.W.2d 869, 871 (Tex.Crim.App.1990).   An objection stating one legal theory may not be used to support a different legal theory on appeal.   Id.;  Fontenot v. State, 903 S.W.2d 413, 416 (Tex.App.-Houston [1st Dist.] 1995, pet. ref'd).   See also Tex. R.App. P. 33.1(a) (effective Sept. 1, 1997) (formerly Tex.R.App. P. 52(a)).

Because the trial judge was never asked to find appellant's audiotaped confession inadmissible on this ground, I would overrule appellant's fifteenth point of error on that basis.

FOOTNOTES

1.   Benson v. State, 661 S.W.2d 708, 715-16 (Tex.Crim.App.1982);  Boozer v. State, 717 S.W.2d 608, 610 (Tex.Crim.App.1984).

FN2.  The court also made it clear that its decision in no way affected the holdings in cases setting out the standard by which appellate courts review trial courts' evidentiary rulings, which is an abuse of discretion standard.  Guzman v. State, 955 S.W.2d 85, 89 (Tex.Crim.App.1997)..  FN2.  The court also made it clear that its decision in no way affected the holdings in cases setting out the standard by which appellate courts review trial courts' evidentiary rulings, which is an abuse of discretion standard.  Guzman v. State, 955 S.W.2d 85, 89 (Tex.Crim.App.1997).

HEDGES, Justice.

NUCHIA, J., concurs.