Nereo Pena Garza v. State

Opinion issued March 25, 2010.

In The

Court of Appeals

For The

First District of Texas

————————————

NOS.

01-08-00529-CR

01-08-00530-CR

NEREO

PENA GARZA , Appellant

V.

THE

STATE OF TEXAS , Appellee

On Appeal from the 337th District Court

Harris

County, Texas

Trial Court Case Nos. 1118779 & 1118777

MEMORANDUM

OPINION

A jury found appellant, Nereo Pena Garza, guilty

of first-degree aggregate theft (trial court cause no. 1118777 and appeal no.

01-08-00530-CR) and second- degree aggregate theft (trial court cause no. 1118779

and appeal no. 01-08-00529-CR), and assessed punishment at 7 years’ confinement

and a $5,000 fine for the first-degree offense and 6 years’ confinement and a

$10,000 fine for the second-degree offense.

In four issues on appeal, appellant contends (1) the evidence is legally

and factually insufficient to support his convictions; (2) the trial court

erred during voir dire by explaining the concept of reasonable doubt in a way

that diminished the State’s burden of proof; and (3) the trial court erred in

denying appellant’s motion to suppress.

We affirm.

BACKGROUND

In 2000, St. Agnes High School implemented a

program requiring each incoming student class to purchase a laptop for school

use. For the first three years of the program, students purchased laptops from

Hewlett Packard. Hewlett Packard provided a four-year manufacturer’s warranty

for each computer, which would last each student through graduation. Safeware Insurance

Company [“Safeware’] offered an optional supplemental insurance policy to cover

any repairs that were not covered by Hewlett Packard's manufacturer’s warranty.

St. Agnes hired appellant as a network and software technician and assigned him

to the “C.A.V.E.,” [1] the school’s computer repair center. During the summer of 2003, a computer virus

attack infected most of the school’s laptop computers. Appellant encouraged the

school to hire Reza Haghigi Ahmadi’s [2]

company, Intelligent Interface [“I.I.”], to repair the computers. Ahmadi sent

I.I. technicians to St. Agnes, and the virus was eradicated after approximately

three weeks of work. Ahmadi did not charge the school for this repair work. Pleased

with Ahmadi’s work on the virus, St. Agnes then hired I.I. as its HP warranty

repair provider, and I.I. technicians began to work in the C.A.V.E. with

appellant full-time. Appellant was not a

certified Hewlett Packard warranty provider and was not authorized to diagnose

problems for the I.I. technicians.

Nevertheless, I.I.’s employee in the C.A.V.E., Daniel Pham, testified

that he was told to “just listen and do whatever [appellant] told him to do.”

In 2005, St. Agnes hired Jason Hyams as its technology

director. Hyams soon became concerned with Garza’s activities in the C.A.V.E. He questioned the presence of a large

inventory of replacement parts for which there were no invoices or

documentation, and also discovered that Safeware checks made payable to St.

Agnes were habitually deposited into bank accounts managed by I.I. and a business

account maintained in appellant’s wife’s name. Additionally, Hyams found lists

of laptop serial numbers, part numbers, and part descriptions organized

sequentially by date. On further investigation, Hyams discovered that the

serial numbers on the notepads were in alphabetical order by the students’ last

names. Hyams concluded that appellant

was using the serial numbers to order replacement parts for the students even

though repairs were not needed. [3] Hyams found several instances where parts

were ordered and received for specific laptops without corresponding service

tickets or student complaints matching the part orders. St. Agnes questioned Ahmadi

and appellant about the alleged rotation scheme and the replacement part

inventory. At that time, appellant admitted making unnecessary part

replacements, but told the school that they maintained the parts inventory so

that repairs could be completed more quickly. St. Agnes terminated appellant

and later replaced I.I. as its warranty repair provider. St. Agnes also

notified HP, Safeware, and the police of its concerns. Ahmadi and appellant

were subsequently arrested and indicted for theft. The two men were tried

jointly, and the jury convicted appellant of theft against both Hewlett Packard

and Safeware.

SUFFICIENCY OF THE EVIDENCE

Standard

of Review

We review the legal sufficiency of the evidence by

considering all of the evidence in the light most favorable to the verdict to

determine whether any rational trier of fact could have found the essential

elements of the offense beyond a reasonable doubt. Williams v. State,

235 S.W.3d 742, 750 (Tex. Crim. App. 2007). We “may not re-evaluate the weight

and credibility of the record evidence and thereby substitute our judgment for

that of the fact-finder.” Id. We give testimony, to weigh evidence, and to draw

reasonable inferences from the facts. Id. Our duty is to “ensure that

the evidence presented actually supports a conclusion that the defendant

committed the crime that was charged.” Id.

We begin our

factual sufficiency review with the assumption

that the evidence is legally sufficient. Laster v. State, 275 S.W.3d

512, 518 (Tex. Crim. App. 2009). Evidence

that is legally sufficient, however, can be deemed factually insufficient if

(1) the evidence supporting the conviction is “too weak” to support the fact-finder’s

verdict or (2) considering conflicting evidence, the fact-finder’s verdict is

“against the great weight and preponderance of the evidence.” Id. We

consider all of the evidence in a neutral light, as opposed to in a light most

favorable to the verdict. Id. We recognize that the fact-finder is in

the best position to evaluate the credibility of witnesses, and we afford due

deference to the fact-finder’s determinations. Marshall v. State, 210

S.W.3d 618, 625 (Tex. Crim. App. 2006). We may only find the evidence factually

insufficient when necessary to “prevent manifest injustice.” Laster, 275

S.W.3d at 518 . In such case, we must explain why the evidence is too weak to

support the verdict or why the conflicting evidence greatly weighs against the

verdict. Id.

Applicable

Law

“A

person commits an offense if he unlawfully appropriates property with intent to

deprive the owner of property.” Tex. Penal

Code Ann. § 31.03(a) (Vernon Supp. 2009). “Appropriation of property is

unlawful if it is without the owner’s effective consent.” Tex. Penal Code Ann. § 31.03(b)(1)

(Vernon Supp. 2009).

Appellant was charged with aggregate

theft in the first degree in the

Hewlett Packard case and aggregate theft in the second degree in the Safeware

Insurance case. A theft is a theft in

the first degree if the value of the property stolen is $200,000 or more. Tex. Penal Code Ann. § 31.03(e)(7)

(Vernon Supp. 2009). A theft is a theft in the second degree if the value of

the property stolen is $100,000 or more but less than $200,000. Tex. Penal Code Ann. § 31.03(e)(6)(Vernon

Supp. 2009).

The

Hewlett Packard case

In

issue one of the Hewlett Packard case, appellant contends the evidence is

legally insufficient to support the verdict.

Specifically, appellant claims that the evidence is legally insufficient

because (1) Dennis Leahy was not the legal owner of the stolen funds and (2)

“insufficient evidence was presented to distinguish between money obtained by

invalid warranty claims and funds received through honest work.”

Evidence of Ownership

The

indictment alleged that appellant unlawfully appropriated money owned by Dennis

Leahy. Appellant argues that there is

legally insufficient evidence to show that Leahy owned the stolen money.

The Texas Penal Code’s definition of “owner” includes

a person who has “a greater right of possession of the property than the

actor.” Tex. Penal Code Ann. §

1.07(a)(35)(A) (Vernon Supp. 2009). “Possession” is defined as “actual care,

custody, control, or management.” Tex.

Penal Code Ann. § 1.07(a)(39) (Vernon Supp.2009). An allegation of ownership may be alleged in

either the actual owner or a special owner.

Tex. Code Crim. Proc. Ann. art.

21.08 (Vernon 1989); Freeman v. State ,

707 S.W.2d 597, 603 (Tex. Crim. App. 1986). “A ‘special owner’ is an individual who is in custody or control of

property belonging to another person.” Harrell

v. State , 852 S.W.2d 521, 523 (Tex. Crim. App. 1993). When a corporation is

the owner of the property that has been stolen, it is the preferable pleading

practice to allege special ownership in a natural person acting for the

corporation. Simpson v. State , 648

S.W.2d 1, 2 (Tex. Crim. App. 1983); Harris

v. State , 846 S.W.2d 960, 962 (Tex. App. — Houston [1st Dist.] 1993, pet. ref’d). A person may testify as the “special

owner” of property if it is shown that he has care,

custody, or control of the property by virtue of his employment relationship

with the corporation that owns the property. See id. at 962 .

Here, Leahy testified that he was the lead global

investigator for Hewlett Packard. At the

time of trial in June 2008, Leahy had been working for Hewlett Packard for over

three years. Leahy’s duties included the

investigation of incidents involving warranty fraud. Appellant does not dispute that these duties

would be sufficient to qualify Leahy as a special owner.

Nevertheless, appellant argues that Leahy cannot

be a “special owner” of the money because he was not employed by Hewlett

Packard during the entire time the alleged thefts occurred. Specifically, appellant points out that the

alleged thefts occurred between June 2, 2003, and August 30, 2005, and that

Leahy was not employed by Hewlett Packard until sometime in early 2005. It is true that “the key to answering the

question of which person has the greater right to possession of the property is

who, at the time of the commission of the offense, had the greater right to

possession of the property. Freeman , 707 S.W.2d at 604 .

However, the State points out that this case was

charged as an aggregate theft. “When

amounts are obtained in violation of this chapter pursuant to one scheme or

continuing course of conduct, whether from the same or several sources, the

conduct may be considered as one offense and the amounts aggregated in

determining the grade of the offense.” Tex. Penal Code Ann. § 31.09 (Vernon 2005).

Section 31.09 operates to create one offense. Kellar

v. State , 108 S.W.3d 311 , 312—13 (Tex. Crim. App. 2003); Dickens v. State , 981 S.W.2d 186, 188

(Tex. Crim. App. 1998) (“Aggregate theft is the sum of all its parts. A part is a completed theft whose elements

have all been proven.”) In Tita v. State , 267 S.W.3d 33 , 35 n.1

(Tex. Crim. App. 2008), the court noted that in aggregate theft cases, the

statute of limitations does not begin to until the date of the commission of

the final incident of theft and therefore the entire theft is deemed to occur

on the date of the most recent theft.

Applying this

reasoning, we conclude that, because the State does not have to prove each

individual theft in an aggregate theft case, it likewise is not required to

prove that the special owner was an employee of the corporation during the time

of each individual theft. See State v. Weaver , 982 S.W.2d 892 , 893—95

(Tex. Crim. App. 1998) (holding venue proper in Harris County for prosecution

of aggregate theft arising out of a single scheme, even though offenses against

some complainants took place outside Harris County because alleged

out-of-county offenses arise from same scheme or continuing course of conduct

as Harris County offenses). The evidence

here showed that Leahy was a Hewlett Packard employee with a greater right of

control over the corporation’s money than appellant during commission of the

aggregate offense. As such, the

evidence is legally sufficient to show that Leahy was the owner.

Amount

Stolen

Appellant was charged with theft of over $200,000.00

from Hewlett Packard, through its special owner, Leahy. In issues one and two, appellant argues that

“by failing to present any evidence separating what [the State] conceded was

legitimate work from that which was fraud,” the State presented legally and

factually insufficient evidence “to distinguish between money obtained by

invalid warranty claims and funds received through honest work.” Essentially, appellant argues that he

“partially performed,” and that, as a result, the State was required to prove

an offset for the amount of valid work done on the computers.

Even if we were to assume that appellant is entitled

to an offset for the legitimate work performed on the computers, it would be

appellant’s burden to produce evidence of the amount of such an offset. See

Riley v. State , 2009 WL 3050878, *6 (Tex. App. — Houston [1st Dist.] Sept. 18, 2009, pet.

filed). Section 31.08(d) of the Penal

Code addresses how property is valued for purposes of the theft statute and

provides:

If the actor proves

by a preponderance of the evidence that he gave consideration for or had a

legal interest in the property or service stolen, the amount of the

consideration or the value of the interest so proven shall be deducted from the

value of the property or service ascertained . . . to determine value for

purposes of this chapter.

Tex. Penal Code Ann. § 31.08(d) (Vernon 2003) (emphasis

added).

Appellant’s claim is that he had a legal interest

in a portion of the funds taken from Hewlett Packard because some of the

warranty repair work was genuine.

However, under § 31.08(d), such a claim is an affirmative defense

placing the burden of proving appellant’s legal interest on appellant, not the

State. The State presented evidence that

Hewlett Packard paid out $761,552.50 for the fraudulent warranty work, and

appellant presented no evidence to support his claim of entitlement to an

offset on this amount.

Viewing the evidence in the light most favorable

to the verdict, there was legally sufficient circumstantial evidence of the

amount stolen. Williams , 235

S.W.3d at 750 (legal sufficiency). Similarly, after viewing all the evidence in

a neutral light, we also hold that the evidence of the amount stolen was not

factually insufficient. Laster ,

275 S.W.3d at 518 (factual sufficiency). The jury was free to determine

the credibility of the witnesses and choose whose testimony it believed. Id. Accordingly, we overrule issues one

and two in the Hewlett Packard case.

The Safeware

Insurance case

Appellant

also argues that the evidence is legally and factually insufficient to show

that he had the requisite criminal intent to deprive Safeware Insurance of its

money. Specifically, he argues that “it

was understood through verbal agreement by both parties that insurance claims

would be processed through [appellant] and it was expected that [appellant]

would receive the checks and then use the funds for repair and replacement of

the laptops.” Essentially, appellant

argues that he received the funds voluntarily, and that while he may have

failed to follow procedure by depositing the insurance checks in his personal

accounts, this is case is nothing more than a contract dispute regarding the

amount of funds owed under the insurance agreements.

A person commits theft

if he unlawfully appropriates property with intent to deprive the owner of

property. See Tex. Penal Code

Ann. § 31.03(a) (Vernon Supp. 2009). Appropriation of property is unlawful

if it is without the owner’s effective consent. See Tex. Penal Code Ann. § 31.03(b)(1)

(Vernon Supp. 2009). Consent is not effective if it is induced by

deception. See Tex. Penal Code Ann. § 31.01(3)(A)

(Vernon Supp. 2009).

Citing Phillips v. State , 640 S.W.2d 293, 294

(Tex. Crim. App. 1982) and Jacobs v.

State , 230 S.W.3d 225, 230 (Tex. App. — Houston [14th Dist.] 2006, no pet.), appellant

argues that a failure to perform a contract is not evidence that a defendant

deceived the complainant into paying him money.

However, in each of those cases, the only evidence of “theft” was a

failure to perform as contracted. Here,

there is substantially more evidence of deception than a failure to perform

under a contract. See Guevara v. State , 152 S.W.3d 45, 50 (Tex. Crim. App. 2004)

(holding criminal intent may be inferred from defendant’s conduct and

surrounding circumstances).

The State presented

evidence that every claim submitted to Safeware for payment listed a “drop” as

the cause of damage. There was also

evidence that Hewlett Packard and Safeware often paid for the same repairs to

the same computer. The State presented

evidence that appellant deposited checks from Safeware, which were made payable

to St. Agnes, into his wife’s business account and that he gave other of the

checks to Ahmadi. Appellant then used

the money in from his wife’s business account to pay his personal bills. While appellant characterizes this as a

failure to follow “procedure,” the jury could have considered this as evidence

of intent to deceive. See Bogia v. State , No. 01-02-00950-CR

at *3-4, 2004 WL 253263 (Tex. App.—Houston [1st Dist.] February 12, 2004, pet.

ref’d) (not designated for publication) (holding that violating company policy

some evidence of intent to deceive).

There was also evidence

that the students’ explanations of how their computers were damaged did not

match the repairs done on the computers or the claims sent to Safeware. For example, one students came to the

C.A.V.E. and complained that her computer would not charge. The insurance claim shows that the system

board, the LCD screen, and the plastic bottom of the computer were

replaced. The insurance claim showed

that the computer was “dropped.” Another

student complained that she could not “connect to the internet,” but the

insurance claim showed that the student hit the computer on the door and broke

the LCD screen, which was replaced.

Daniel Pham, I.I.’s worker who was assigned to work in the C.A.V.E. with

appellant, testified that he was instructed to “do whatever [appellant] told

him to do,” and that he felt like he was often instructed to replace good parts

with good parts.

Finally, the jury

heard evidence of appellant’s elaborate scheme to bill Hewlett Packard for

unnecessary warranty work by using the rotating list of serial numbers from the

tablets. The jury could have concluded

that appellant’s actions in relation to Safeware were likewise “merely a ruse

to accomplish theft by deception.” King v. State , 17 S.W.3d 7, 15 (Tex.

App.—Houston [14th Dist.] 2000, pet. ref’d).

Viewing the evidence

in the light most favorable to the verdict, there was legally sufficient

circumstantial evidence of appellant’s intent to commit theft. Williams, 235

S.W.3d at 750 (legal sufficiency). Similarly, after viewing all the evidence in

a neutral light, we also hold that the evidence of appellant’s intent to commit

theft was not factually insufficient. Laster, 275 S.W.3d at 518 (factual

sufficiency). The jury was free to determine the credibility of the witnesses

and choose whose testimony it believed. Id.

Accordingly, we overrule issues one and two in the Safeware case.

VOIR DIRE

In his third issue on appeal, appellant argues that

the trial court erred in voir dire when it explained “reasonable doubt” as

follows:

[Trial Court]: I

had mentioned to you several times that that piece of paper of the elements of

the offense have to be proven to you, whatever is alleged in that piece of

paper beyond a reasonable doubt. Here’s

the deal on reasonable doubt. The Court

is not going to — not

only here but anywhere else in this State — is not going to define for you what a reasonable

doubt is. The Court of Criminal Appeals

has told us that is up to each individual

juror to decide, this juror gets to decide in his or her own mind so that this

juror gets to decide, this juror gets to decide, this juror gets to decide

through all 12 of you. There’s not

going to be a light, no buzzer, no whistle, nothing that goes off to say, okay,

the State has met its burden. It’s up to

you to decide when you are convinced beyond a reasonable doubt as to each

element of the offense. But here’s what

the law does tell you. The law tells you

the State does not have to prove its case beyond all doubt. What would it take to convince you of

anything beyond all doubt?

[Venireperson]:

You saw it yourself.

[Trial Court]: And

what are you called if you saw it yourself?

[Venireperson]:

Eyewitness.

[Trial Court]:

Yeah, you’re a witness. You’ll be waiting in the hallway for us to get

this jury picked. And that’s why the

burden is beyond a reasonable doubt.

Nothing unique to this case, this court, this State. It’s the same everywhere. You have to be convinced beyond a reasonable

doubt as to each element of the offense.

It’s not anything in the world, but something that is alleged in here

you have to be convinced of beyond a reasonable doubt before you can find a

person guilty. If you are not convinced

beyond a reasonable doubt, what is your verdict?

[Venireperson]:

Not guilty.

Citing Wansing

v. Hargett , a case from the United States 10th Circuit Court of Appeals,

appellant argues that the trial court’s voir dire comments on reasonable doubt

diminished the State’s burden of proof because it suggested that there was “an

extraordinarily broad range of possible meanings [of reasonable doubt] including

some which are plainly unconstitutional[.]”

341 F.3d 1207, 1214 (10th Cir. 2003).

The State responds that error, if any, was waived

because appellant did not object to the trial court’s comments. Appellant, however, contends that the comment

was structural error, and did not require objection.

As a general rule, trial counsel must object to

preserve error, even if it is “incurable” or “constitutional.” Cockrell

v. State, 933 S.W.2d 73, 89 (Tex. Crim. App. 1996). However, in Blue v.

State, 41 S.W.3d 129 (Tex. Crim. App. 2000), a plurality of the Court of

Criminal Appeals held that a trial court’s comments during voir

dire, “which tainted [the defendant’s] presumption of

innocence in front of the venire, were fundamental error of constitutional

dimension and required no objection.” Id. at 132 . In Blue , the

trial court apologized to the venire for its long wait, explained that the

delay was because the defendant was indecisive on whether to accept a plea

bargain, and expressed its preference that the defendant plead guilty. Id.

at 130 . A plurality opinion is not

binding precedent and we are not obligated to follow it. See Murchison v. State, 93 S.W.3d 239,

262 (Tex. App.- — Houston

[14th Dist.] 2002, pet. ref’d). Even if Blue were binding, it is distinguishable. In Blue ,

the trial judge expressed his personal view regarding appellant’s guilt or

decision to go to trial. No such

tainting of the presumption of innocence occurred in this case. Therefore, by

failing to object to the trial court’s comments on reasonable doubt, appellant

waived error. See Tex. R. App. P. 33.1; s ee also Brumit v. State , 206 S.W.3d 639, 644-45 (Tex. Crim. App. 2006)

(staring that court did not need to decide whether objection was required to

preserve alleged error regarding comments of trial judge where record did not

reflect bias or partiality of trial court); Jasper

v. State , 61 S.W.3d 413, 421 (Tex. Crim. App. 2001) (holding that trial

judge’s comments “aimed at clearing up a point of confusion” did not “[rise] to

such a level as to bear on the presumption of innocence”).

We overrule issue three.

MOTION TO SUPPRESS

At trial, appellant brought a motion to suppress

evidence obtained as a result of videotaped questioning by the police while he

was in custody. Appellant contends that

the videotape should have been suppressed because it was taken in violation of

his rights under Miranda v. Arizona ,

384 U.S. 436 , 86 S. Ct. 1602 (1966) and Tex.

Code Crim. Proc. Ann. art. 38.22,

§ 3(a) (Vernon 2005). Specifically,

appellant contends that (1) he never expressly waived his Miranda and statutory rights and (2) his statement was involuntary

because the police used “trickery” by telling him that a co-defendant had

implicated him.

Standard

of Review

We review the trial court’s ruling on a motion to

suppress evidence for abuse of discretion, using a bifurcated standard. See

Guzman v. State, 955 S.W.2d 85, 88-89 (Tex. Crim. App. 1997). We give “almost

total deference” to the trial court’s findings of historical fact that are

supported by the record and to mixed questions of law and fact that turn on an

evaluation of credibility and demeanor. Id. at 89 . We review de novo the

trial court’s determination of the law and its application of law to facts that

do not turn upon an evaluation of credibility and demeanor. Id. When the

trial court has not made a finding on a relevant fact, we imply the finding

that supports the trial court’s ruling, so long as it finds some support in the

record. State v. Kelly, 204 S.W.3d 808, 818-19 (Tex. Crim. App. 2006); see

Moran v. State, 213 S.W.3d 917, 922 (Tex. Crim. App. 2007). We will uphold

the trial court’s ruling if it is reasonably supported by the record and is

correct under any theory of law applicable to the case. State v. Dixon,

206 S.W.3d 587, 590 (Tex. Crim. App. 2006).

Waiver of Miranda and statutory rights

An oral

statement of an accused made as a result of custodial interrogation is admissible

against the accused in a criminal proceeding if: (1) an electronic recording,

which includes a videotape, is made of the statement; (2) before the statement,

but during the recording, the accused is given the warnings required by article

38.22, section 2(a) of the Code of Criminal Procedure; and (3) the accused

knowingly, intelligently, and voluntarily waives the rights conveyed by the

warning. Tex. Code Crim. Proc. Ann. art. 38.22, § 3(a)

(Vernon 2005).

The

videotape in this case and Detective Nolan’s testimony establish that Nolan

properly advised appellant of his Article 38.22, section 2(a) rights. Before

questioning appellant, Nolan stated, “Before you are asked any questions, it is

my duty to advise you of your rights and to warn you of the consequences of

waiving these rights.” After reciting each right to appellant, Nolan stopped to

engage appellant and ask if he understood the particular right. Appellant

responded “yes” in every instance. Nolan then asked appellant, “Having received

these rights and acknowledging that you understand them, do you want to answer

any of my questions.” Appellant responded,

“Sure. Yeah. No problem.” Appellant then proceeded to answer Nolan’s questions.

Appellant never attempted to stop the questioning, never remained silent when

faced with a question, and never asked to speak with a lawyer.

Appellant contends that because he did not ever

expressly state that he waived his rights, “a presumption should exist that he

in fact invoked his rights.”

Article 38.22 does not require an express verbal statement from the accused

that he waives his rights before giving a statement. Rocha v. State, 16 S.W.3d 1, 12 (Tex. Crim.

App. 2000). The reviewing court may

determine that the accused impliedly waived his rights and voluntarily

confessed by examining the totality of the circumstances demonstrated by the

record. See Barefield v. State, 784 S.W.2d 38, 41 (Tex. Crim. App.

1989).

Any waiver of Miranda rights on behalf of

an accused must be made knowingly, intelligently, and voluntarily. See

Miranda, 384 U.S. at 475 , 86 S. Ct. at 1628 . Whether an accused effectively

waives his rights has two distinct inquiries: first, the relinquishment of the

right must have been voluntary in the sense that it was the product of a free

and deliberate choice rather than intimidation, coercion, or deception. Moran

v. Burbine, 475 U.S. 412, 421 , 106 S. Ct. 1135, 1141 (1986). Second, the waiver must have been made with a

full awareness of both the nature of the right being abandoned and the

consequences of the decision to abandon it. Id. As under Texas law, federal law does not

require an express waiver; waiver may be inferred from the actions and words of

the person interrogated. North

Carolina v. Butler, 441 U.S. 369, 373 , 99 S. Ct. 1755, 1758 (1979); Rocha

v. State, 16 S.W.3d 1, 12 (Tex. Crim. App. 2000). We consider the totality

of the circumstances when determining whether an accused has waived his Miranda

rights. Fare v. Michael C., 422 U.S. 707 , 725, 99 S. Ct. 2560, 2571-72

(1979). Simply making an inculpatory statement cannot alone indicate a waiver

of the right to remain silent, but a statement of “desire to talk” to police,

accompanied by an inculpatory statement can show the waiver of the right to

remain silent. See Butler, 441 U.S. at 372-73 , 99 S. Ct. at 1756-57 ; McDonald

v. Lucas, 677 F.2d 518, 521-22 (5th Cir.1982).

First, nothing in the record indicates that

appellant was coerced, intimidated, or deceived into giving a statement.

Detective Nolan testified that he made no promises or threats to appellant. None

of the officers in the interrogation room were armed. Appellant, in fact, does not argue that he

was coerced, threatened, or deceived into waiving his rights. While appellant argues that the officers used

deceptive techniques when questioning him, he does not argue, and there is

nothing in the record to suggest, that these interrogation techniques deceived

or induced appellant into waiving his rights.

Indeed, appellant had already indicated his willingness to speak to the

police before Nolan erroneously led appellant to believe that Ahmadi was “blaming

the whole scam on him.”

Second, the recorded confession clearly shows that

Detective Nolan read appellant his Miranda and statutory warnings, and,

immediately after being told that he had the right to remain silent and that

anything he said could be used against him in court, appellant answered affirmatively

when asked whether he wanted to “answer any of [Nolan’s] questions.” From this sequence of events, the trial court

could have reasonably concluded that appellant was aware of his rights, the

consequences of waiving those rights, and that appellant did, in fact, waive

his rights by choosing to continue to speak with police after being warned that

he did not have to do so.

Finally,

there was no issue of intoxication or any indication that appellant did not

understand what was occurring. He appears coherent and fully able to understand

the questions. His responses are articulate. The interrogation lasted a little

over an hour. Appellant was given water

when he was thirsty. Nolan testified

that appellant appeared to understand the warnings that were read to him. Appellant never indicated that he wished to

quit talking or to have an attorney present.

For

these reasons demonstrated by the record before us, we cannot say that the

trial court erred by determining, from the totality of the circumstances, that

appellant impliedly waived the rights afforded to him by Miranda or Article 38.22, section 2(a).

Involuntariness due to deceptive interrogation tactics

Appellant

also argues that his confession was involuntary because the police lied to him

and told him that Ahmadi was “blaming the whole scam on him.” However, in arguing his motion to suppress,

appellant never argued that his statement was involuntary because police lied

to him. Instead, defense counsel argued

only that appellant was (1) never affirmatively asked whether he waived his

rights, and (2) unaware that he was being videotaped. Because appellant’s issue regarding deceptive

interrogation tactics does not comport with the objection at trial, it is

waived .

See Tex. R. App. P.

33.1 (to preserve complaint for appellate review, complaint must be presented

to and ruled upon by trial court); Gallo

v. State , 239 S.W.3d 757, 763 (Tex. Crim. App. 2007) (holding appellant’s

general trial objection, in comparison with those lodged on appeal, were not

sufficiently specific to preserve error); Heidelberg

v. State , 144 S.W.3d 535, 537 (Tex. Crim. App. 2004) (holding that

complaint made on appeal must comport with complaint made

in trial court or error is forfeited). Furthermore, even if we were to consider

appellant’s argument that the failure to inform him that he was being

videotaped is a deceptive tactic that rendered his confession involuntary, he

cites no argument or authority requiring such a disclosure by police before an

interrogation.

We

overrule point of error four.

CONCLUSION

We affirm the judgment of the trial court.

Sherry

Radack

Chief

Justice

Panel

consists of Chief Justice Radack and Justices Alcala and Higley.

Do not publish.

Tex. R. App. P. 47.2( b).

[1] C.A.V.E. is an acronym for Computer Audio

Visual Equipment.

[2] Ahmadi and appellant were tried

together in the same trial. Ahmadi was

convicted, and his conviction was affirmed by the Fourteenth Court of

Appeals. See

Ahmadi v. State , 2010 WL 307909 (Tex. App—Houston [14th

Dist.] January 28, 2010, no pet. h.) (not designated for publication).

[3] There was evidence that Ahmadi was rated a

“premier” certified warranty representative for Hewlett Packard, which meant

that he was reimbursed for labor at the highest rate available. To maintain such “premier” status, there could

not be more than one part claim per computer during a 30 day period. Thus, the rotating tablet system assured that

Ahmadi would maintain his “premier” status by attributing each part ordered to

a different computer, even if that computer did not require a repair. The fact that there was an “inventory” in the

C.A.V.E. suggests that parts were ordered and Ahmadi was paid for repairs, even

though the parts were never actually put in a computer.