Case Information

*1 902-15

ORIGINAL

To the Court of Criminal Abseats

of Years

LARRY W. BENSON (ABDELLES)

RECEIVED IN COLLAT OF CRIMINAL APPEALS

SEP 18, 2015

Abel Acosta, Clark

FILED IN SQUART OF CRIMINAL APPEALS

SEP 18, 2015

Abel Acosta, Clerk

PERSON

ON PERSON FROM THE 17th

COURS OF APPEALS, ATTENING

SUBMED OF CUNST IN CANCE

2311001 OF DISTRICT COURS

EXSTAND. HONORNCE SOREN

R. HENOD T/ST DISTRICT.

LARRY W. BENSON (PRASE)

RUSSEL D. THOMMSON (DISTRICT ANT)

*2

TRBLE OF CONDONS

INDEX OF ADMONDIONS ..... iii ORAL ANCHMANY SOMME MENY ..... iv STIMMENY OF TIME CASE ..... iv PROCEDURAL AN SPORE ..... iv GROUND FOR REVIEW ..... V ANCHMANY ..... $1-4$ REMONO FOR REVIEW ..... 1 FORCEW BRECKOND ..... $1-4$ THE COURT OF APPRESS Earnings in MOCDINE THAT THE CONFESSOR/ SOMMEENY WAS LEEMELY OBGNMED PER ORCING LAM, CED 38.22 THAN COURT SMOULD HOW SURRESED SOMMEMENY. PUMBER FOR RELIEF ..... 4 THAN 9.4 COMPLIANCE ..... 5 CENTRICATE OF SERVICE ..... 5.6

*3

Index of Aromatios

CASES:

BALERINE V SOMME 715 W 34163 (Nieman V Aerz. 394 U 3436 (3)

SOMEBUEY V. CALIE. 511 U 318,322 (3)

CODES: C.CP 38.228 (1)

*4

Gmement Regretine Oren Aboumen Apeclant requests Oren Abou- ment To ald the count in its ANALYSIS. APECLANT is in cUSSEDly AND Is PROCEDURE PRO SE. Apeclant will REPURE APPORT- MENT OF CONSER IF ORAL ABEW- MENTE ARE GANITED.

SOMENEAS OF CASE Apeclant was canRced with CONTINUous sENAL ABUSE OF A Yours CHILD. THE INDICOMENT WAS IS SUED ON JUNE II, 2013. (C.R.I, 4) APECLANT WENT TO TRIAL BY JUNY. ON OCEDEER 8, 2013 A JUNY REVIENED A CHILD VERDICT. (CR.I, 36) THE JUNCE THE SENTEACED APECLANT TO A LIFE SENTEACED (CR.I, 37) APPECLANT WAS ATTENED BY APPECLANE COURT.

SOMENEAS OF REOCEDING ABSTANEY THE ITM COURT OF APPECLS (iv)

*5 APMANED TME TETAL COURT SUBMENO OF CULT IN AN UNDULUSATED MEMORING UN ORIGIN DATED, JUNE 18, 2015, BENTON V. STATE No. 11-18-00308-CR, SEE: (ANTHERED EXHIBIT)

MO MOOROI FOR REMEMBING WAS FICED. APPELING'S DEGION FOR DISCRETION MY REVIEW WAS FICED ON OR BEFORE SEAT EMERGEN 18, 2015 AS PERE COURT'S RUCKING ON MOGION FOR EXTENSION OF TIME.

GROUND FOR REVIEW

THE H3M COURT OF APPELINS EFFERD IN HOLDING THAT TETAL COURT'S DECISION NOT TO SURRES ORAL STATEMENT'S OF TME VIDEOS WAS NOT AN ABUSE OF DISCRETION. STATEMENT'S SNOUED HANE BEEN SURRESSED.

*6

AReGment

REVISONE OF REVEAL:

THE COURT OF APPRENLS HAS DECIDED IN A WAY TENST CONFICUS WITHY HE SINRIT OF THE LAW. IT CANNUT BE KNOWL TENST A DERSON HAS BEEN NOVISED OF ALL HAS CONSTTUTONAL RIGHTS IF THE RIGHTS ARE NOT READ TO DEPENDANT ON THE VIDEO. SO ORERON LAW DOES NOT PRETECT A DERSON FROM OMMSTONS OF CONSTTONTIONAL RIGHTS.

PROMIER RECEIVENDS:

THE ORERON PERCE OFTICK (SUCCHAN) ADDRESS TENST MIRANON WANNITLS WERE NOT CHANG ON THE VIDEO. THE RECOURS SUIPEDS THIS APPRENINT WAS DISORD IN REME OF PERCE UNIT, WAS HANS CUFFED HAS SEPARATED FROM HIS OWN VENICE.

THE RECORD S HOWS TENST THE STATE CONSTANDS TENST ORERON LAW WAS PROPERLY FOCOWED THUS ALLOWING VIDEO SOPERTHEN BY WAY OF 38.22 CUP SECTION (1)

*7 The record seow's 5949 offece Suuivani, after before mHIIG 5949 He will No Jokis D:cStoria Power To As on CRIMES 7949 REPORTEOLY oCe URED IN TEMPS, CENTINUED WITH AN INVESTIGATION. Ie S HOULD BE CEEER FROM 5949 FREES 5949. THOSELLANT WAS WAND CUPED AND DUNED IN REER SEAT OF PULCE CARE APPEL ANTHAS SEPRADED FROM HIS OWU VERTILEE APPELANO WAS BROUGHTTO A PULCE S 5949 HAS APPLICANT COULD NOT LEAUCE AS HE HAD NO VERTILE AND WAS DEMEND ENT ON PULCE FOR A RIDE HOME, THESE FACIOUS WOULD CAUSE ANY REASONABLE PERSON TO THINK 5949 HIS PERBOM HAND BEEN DERIVED IN SIGNIFICANT WAS. IT'S CLEAR 5949 THE SOTTE MENYS USED IS THIS CASE CERE FROM A CUSODING INVERGGRATION.

EVERY OWING REPOS ON THE TEST MONT OF AN OVER ZENOUS, OFFCEER WHO CLEMENT SOTES THAN HE HODED TO ILLICUY IAN CRIMINARING EUDENCE FROM APPLICANT.

*8 THE RECORD REFERTS THAT THERE IS NO WAY TO KNOW IF APPRELANT WAS ADVISED WEE ENOUCH TO PROCITED HUM FROM INVOCUTAKELY GUCKG INCKIMINATING TESTIMONI ARAINST HIMSET IF ORGON CAW ALLOWS STATEMENTS WITHOUT TAE DEPENDANTS WAKNING BERNG A FACT OF THE RECORDING IT CAN'T PAsS MUSSEL. THERE AE SERIOUS PROBLEMS WITH THE BASIC CONSTTUTORAL IS SUES IN THIS CASE. SEE: MIRAND A V. ARTZONA 3 P 4 US 436 AND SYMSEUCH V. CALIE. $51\cup 5318;32.2$ THE ORGONS TESTIMONY CONCELNING THE APPRELANTS "VOLUNTANT' STATEMENT FL 168 IN THE FACE OF LOGIC. NO PERSON IN THER REKNSTMING IS GONE TO VOLUNTMULI MAKE INCKIMINATING STATEMENTS AFANSST THEREGUEST. ALLE "PACTS" IN THIS INSTANCE MAE DEPENDENT UPON THE UNPREVEM TESTIMENT OF SUCLIVAN. (3)

*9

IT IS MPossible To KNoun if APPELANT WAS CHEN AN'S WANING'S. I ARE WAS NO RECORD OF TME RIGHTS THAT THE OFFICER MADE ANM AWARD OF IF ANV. THE COURT OF APPELAS SHOULD NOT HAVE FOWD THAT THE TRE TRE TRE TRE TRE TRE TRE SOMMENENT'S. SEE EALENTINE V SOME 715 W3d 763.

PENER

FOR THE REASON'S SEY TOTOR IN PETITION, APPELANT ASKS THE COURT TO SYSTEM THE IS SUE PRESENTED HEREN. APPELANT PRANS THAT THE IUDGMENT BE REVERSED, SET ASIDE AND VAPATED. APPELANT ASKS THAT A IUDGMENT OF A CAUTTAL BE ENTERED IN MS FAVOR. I N THE ALTERNATIVE APPELANT ASKS THAT THE COURT REVERSE THE IUDGMENT AS IT DEEAS APROPRIATE AND GRANT ANV AND ALL GENERAL RELIEF APPELANT MAY BE EACTICED

*10

Erecutd on this tEutH(lo) dAY of SEtent er Sois

LARY W. BENTON

CERTIFICATE OF CONDCLANCE

I LARY W BENTON DO MEXEY CERTIFY THAT THE WORD COUNY IN THIS DOCUMENT FOR MATTERS NOT EXCUDED BY RULE 9.4 IS LESS THAN THE LIMIT REAURED OF A PETTON FOR DISCRETION MY REVIEW $X$ W. Sendan LARY W BENTON

U.S. MALE CERTIFICATE OF SERVICE

I LARY W. BENTON CERTIFY THAT A COPY WAS MALEED TO AMELLES COUNSE AT:

SMEDY ADMNS RUSSAC TRONASON ENTLAND COUNY CONDVANCE 100 WEST MANN SUNE 204 ENTLAND, TEXAS 76448

*11 BY US. MAIL, POMME PREPAID RECEVED ON THIS IOTH DAN OF SEPPMBER, 2015

$$\&\text{Y.}\frac{\text{P.}}{LAKKYW.}\text{BENYON}\backslash \&3060\text{F.}3514\backslash \&\text{BEHUMON, TEXAS}\backslash \&77705$$

*12

Opinion filed June 18, 2015

In The

(Fiehenth Court of &;ppeals

No. 11-13-00308-CR

LARRY WAYNE BENTON, Appellant V.

THE STATE OF TEXAS, Appellee

On Appeal from the 91st District Court
Eastland County, Texas
Trial Court Cause No. 23111

MEMORANDUM OPINION

The jury found Larry Wayne Benton guilty of the offense of continuous sexual abuse of a young child. The trial court assessed punishment and sentenced Appellant to life imprisonment. In his sole issue on appeal, Appellant asserts that the trial court abused its discretion when it overruled his motion to suppress evidence. We affirm.

I. Background and Evidence at Suppression Hearing

Jane Doe, ^[1] Appellant's daughter, was eleven years old when she moved with her family and Appellant to Eastland. They eventually moved to Oregon. After they

*13 moved to Oregon, Doe alleged that Appellant first had sexual intercourse with her in Eastland, Texas, when she was eleven years old and that the abuse occurred several times. Doe's mother called the police, and Officer Jeremy Sullivan responded to the call.

Officer Sullivan testified that, when he arrived at Appellant's home, he met with Appellant. After an initial visit, Officer Sullivan determined that he could not arrest Appellant because he did not think that any crime had occurred in Oregon. Officer Sullivan asked Appellant whether he would cooperate and give him a statement. Officer Sullivan testified that, even though he had not yet "custodially detained" Appellant, he read Appellant his Miranda ^[2] rights because he "just had a hunch that it was going to lead to something" and because "it's good to get it . . . out in the forefront."

After he had informed Appellant of his Miranda rights, Officer Sullivan turned on the camera audio system in his vehicle, and Appellant acknowledged that Officer Sullivan had read him his Miranda rights and that he understood his rights. ^[3] Appellant subsequently confessed that he had had sexual intercourse with Doe.

Officer Sullivan testified that he asked Appellant whether he was willing to go to the police station to visit more; Appellant voluntarily agreed to go. Officer Sullivan offered Appellant a ride to the police station but explained that, although Appellant was not under arrest nor was he going to jail, police department policy was that all passengers in police vehicles must be handcuffed and placed in the backseat. Appellant accepted Officer Sullivan's offer. Officer Sullivan removed the handcuffs from Appellant when they arrived at the police station.

*14

After they arrived at the police station, Officer Sullivan took Appellant into an interview room, interviewed him a second time, and recorded that interview. Before he interviewed Appellant, Officer Sullivan told Appellant that he had the right to remain silent; that anything he said could be used against him in a court of law; that he had the right to an attorney; and that, if he could not afford an attorney, one would be appointed to represent him. Officer Sullivan confirmed that Appellant understood his rights. After Officer Sullivan concluded the second interview, he received information from a forensic interviewer who had interviewed Doe. The forensic interviewer said that Doe had been the victim of sexual abuse by Appellant when they were in a neighboring city. Officer Sullivan subsequently arrested Appellant based on that new information. Appellant filed a motion to suppress all statements made by him to police, which the trial court overruled. He later objected to their admission, and the trial court overruled those objections.

II. Analysis

Appellant contends that Officer Sullivan did not comply with Article 38.22 of the Texas Code of Criminal Procedure because Officer Sullivan did not record, on video, his review with Appellant of Appellant's rights under Miranda in the first interview and because Officer Sullivan did not tell Appellant in either interview that Appellant could terminate the interview at any time. Therefore, Appellant argues that the oral statements on the videos are inadmissible and that the trial court erred when it admitted the videos. We review a trial court's ruling on a motion to suppress for an abuse of discretion. Balentine v. State, 71 S.W.3d 763, 768 (Tex. Crim. App. 2002). We must view the evidence in the light most favorable to the trial court's ruling. State v. Kelly, 204 S.W.3d 808, 818 (Tex. Crim. App. 2006). We defer to the trial court's findings of historical facts and review de novo the trial court's application of the law. Wiede v. State, 214 S.W.3d 17, 25 (Tex. Crim. App. 2007).

Under Texas law, a statement made by an accused in a custodial interrogation generally cannot be used as evidence against him at his trial unless he was given

*15 proper warnings under Article 38.22 and unless he knowingly, intelligently, and voluntarily waived the rights contained in the warnings. CRIM. Proc. art. 38.22. If the statement does not stem from custodial interrogation, the warnings are not required and the statement can be used against the accused at trial. Id. Additionally, Article 38.22 allows for the admission of oral statements obtained as a result of custodial interrogations in another state if the statements were obtained in compliance with the laws of that state. Id. § 8(1).

Oregon requires that a peace officer advise a person, pursuant to Miranda, "that he or she has a right to remain silent and to consult with counsel and that any statements that the person makes may be used against the person in a criminal prosecution" and obtain a valid waiver before a custodial interrogation. Avila-Nava, 341 P.3d 719-20 (quoting State v. Vondehn, 236 P.3d 691, 699 (Or. 2010)); see also Miranda, 384 U.S. at 444-45. A valid waiver is determined from the totality of the circumstances and consists of a person understanding his rights and voluntarily talking with the interviewer. State v. Meade, 963 P.2d 656, 660 (Or. 1998). Oregon also requires that certain custodial interviews conducted by a peace officer in a law enforcement facility be electronically recorded. See OR. REV. Stat. Ann. § 133.400.

Appellant contends that he was in custody during both interviews and that Officer Sullivan did not comply with Article 38.22 because he did not record Appellant's rights in the first interview or inform Appellant at either interview that Appellant could terminate the interview at any time. If Appellant was not in custody, the statements are admissible. See CRIM. Proc. art. 38.22. If Appellant was in custody, the statements are admissible if Officer Sullivan complied with Oregon law to obtain the statements. See id. § 8(1).

Officer Sullivan read Appellant his rights, according to Oregon law, at Appellant's house and at the police station and made sure that Appellant understood his rights. Appellant voluntarily spoke to Officer Sullivan and complied with his requests. Officer Sullivan electronically recorded the interview at the police station.

*16

Officer Sullivan complied with Oregon law to obtain Appellant's statements; therefore, whether Appellant was in custody or not, the statements were admissible pursuant to Article 38.22, section 8(1). See Or. Rev. Stat. Ann. § 133.400; AvilaNava, 341 P.3d at 719-20. Appellant has not challenged that Officer Sullivan failed to comply with Oregon law or with Miranda; he only challenges the correct application of Article 38.22. We hold that the trial court did not abuse its discretion when it admitted into evidence the videos that contained Appellant's statements. See Balentine, 71 S.W.3d at 768. We overrule Appellant's sole issue on appeal.

III. This Court's Ruling

We affirm the judgment of the trial court.

MIKE WILLSON
JUSTICE

June 18, 2015 Do not publish. See Tex. R. App. P. 47.2(b). Panel consists of: Wright, C.J., Willson, J., and McCall. ^[4] Bailey, J., not participating.

NOTES

${}^1$ The indictment used the pseudonym "Jane Doe" to refer to the victim.

${}^2$ See Miranda v. Arizona, 384 U.S. 436 (1966). Officer Sullivan testified that Oregon law does not require that the person's rights be read on video. See OR. REV. Stat. ANN. § 133.400 (West, Westlaw through Ch. 275 of the 2015 Reg. Sess.); State v. Avila-Nava, 341 P.3d 714, 719-20 (Or. 2014); cf. TEX. CODE CRIm. Proc. Ann. art. 38.22 (West Supp. 2014).

${}^3$ Although Appellant and Officer Sullivan cannot be seen in the video, their voices can be heard.

${}^4$ Terry McCall, Retired Justice, Court of Appeals, 11th District of Texas at Eastland, sitting by assignment.