Ikeal Wade Gardiner v. the State of Texas

In The

Court of Appeals

Ninth District of Texas at Beaumont

__________________

NO. 09-22-00113-CR
__________________

IKEAL WADE GARDINER, Appellant

V.

THE STATE OF TEXAS, Appellee

__________________________________________________________________

On Appeal from the 1A District Court
Jasper County, Texas
Trial Cause No. 14049JD
__________________________________________________________________

MEMORANDUM OPINION

In January 2020, a grand jury indicted appellant, Ikeal Wade Gardiner, and

alleged that in a period of 30 or more days between August 1, 2017, and May 1,

2019, he committed two or more acts of sexual abuse against a child who was

identified in the indictment by her initials. Tex. Penal Code Ann. § 21.02(b)

(Continuous Sexual Abuse of Young Child). We will call the child who is identified

as the alleged victim of Gardiner’s offenses Michelle, and we note that she is

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Gardiner’s step-granddaughter.1 After a jury trial which returned a guilty verdict, the

jury sentenced Gardiner to life in prison. The judgment the trial court signed is

consistent with the jury’s verdict.

Gardiner raises five issues for our review. In his first issue, Gardiner

complains that the trial court improperly admitted outcry statements without first

conducting a hearing outside the presence of the jury to determine whether the

statements were reliable based on the time, content, and circumstances of the

statement. In his second issue, he complains the trial court erred in admitting the

written statement of an outcry witness. In his third issue, Gardiner complains that

the trial court erred in admitting the testimony of Michelle’s licensed counselor

concerning the statements about the sexual abuse Michelle made to the counselor.

In his fourth issue, Gardiner complains that the trial court erred in admitting a

recorded telephone call and in-person interview he made with the investigating

police officer. Finally, Gardiner complains that the admission of the evidence he

complains of was harmful because it affected his trial strategy.

For the reasons discussed below, we affirm the trial court’s judgment.

1We have used pseudonyms to protect the privacy of several individuals who

are mentioned in the opinion. See Tex. Const. art. I, § 30 (granting crime victims
“the right to be treated with fairness and with respect to the victim’s dignity and
privacy throughout the criminal justice process”). We identify that we have used a
pseudonym in lieu of the actual name with italics when the person is first mentioned
in the opinion.
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Background

On September 30, 2019, Michelle made an outcry statement to her school

counselor, Lacy Girola, about alleged sexual abuse by her step-grandfather, Ikeal

Wade Gardiner. At the conclusion of her conversation with Michelle, Girola drafted

a written statement in accordance with school protocol. Girola notified the principal

and the superintendent of the school district, who contacted the sheriff’s department.

The sheriff’s office referred the case to Jason McClelland, then a lieutenant

investigator with the Jasper County Sheriff’s Office. McClelland first met with

Michelle’s mother, Barbara, who was instructed by McClelland to take Michelle to

the hospital for a forensic examination to be conducted by a Sexual Assault Nurse

Examiner (“SANE”). He also scheduled Michelle for a forensic interview with the

Garth House.

Barbara took Michelle to the hospital that same day where Syrena Krummel,

a forensic nurse, examined Michelle. Krummel first took a verbal medical history

from Michelle and then performed a physical examination of Michelle’s entire body,

including her genital areas. She did not find an injury on the body or genital area but

said that she wasn’t surprised by the absence of injury, as “[m]ost of the time there

is not any injury.” She documented her findings in a sexual assault examination and

forensic report which was admitted into evidence without objection.

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McClelland contacted Gardiner on October 2 after learning that Gardiner was

very depressed and that he had learned of the outcry. He first reached out to Gardiner

on the telephone. During the call, Gardiner agreed to visit McClelland in person at

the sheriff’s office. Both the telephone call and the in-person interview were

recorded.

At trial, Michelle described how the sexual abuse started when she was around

eight or nine years old. It began with kissing and touching, but thereafter escalated.

Michelle testified that Gardiner put his fingers in her vagina several times in several

different locations. Michelle said that Gardiner tried to put his penis “on” or “inside”

her vagina, but he was unsuccessful because she fended him off. According to her

testimony, Gardiner also put his penis inside Michelle’s mouth a couple of times in

her grandparents’ guest bedroom. Michelle testified that Gardiner put his mouth on

her vagina “more than once.”

Gardiner took the stand in his defense. He denied many of the allegations

made against him by the State but did admit to touching Michelle’s vagina with his

hand on more than one occasion. He also admitted to putting his mouth on Michelle’s

vagina. He testified that it all started with Michelle climbing on his lap and moving

side to side on his leg. On another occasion, Michelle climbed up on his recliner and

started moving side to side on his leg. That, according to Gardiner, is when the hand

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fondling began. Gardiner also claimed that Michelle pulled her shorts halfway down.

Gardiner believed that both he and Michelle shared fault for what happened.

At the conclusion of trial, the jury found Gardiner guilty of the offense of

continuous sexual abuse of a child. After the presentation of evidence during the

punishment stage, the jury decided that Gardiner should serve a life sentence in the

Institutional Division of the Texas Department of Criminal Justice. This appeal

followed.

Analysis

Outcry Statements

In his first issue, Gardiner complains that the trial court erred in admitting the

testimony of Lacy Girola, the junior high school counselor, and Magan Bonner, a

forensic interviewer at Garth House, concerning what Michelle told them. More

specifically, he contends that the trial court failed to conduct a hearing outside the

presence of the jury to determine whether the statements Michelle made to Girola

and Bonner were reliable based on their time, content, and circumstances. In his

second issue, he complains that the trial court erred in admitting Girola’s written

statement because it constituted double hearsay that did not fall within any of the

exceptions to the general rule that hearsay is inadmissible. Because these two issues

are substantially related, we address them together.

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Girola was the first witness to testify. She testified that on September 30,

2019, Michelle came to her office to speak with her. Before Girola testified regarding

what Michelle told her, defense counsel objected to Girola’s testimony as hearsay.

The State responded that Girola had been designated as an outcry witness. The trial

court overruled the objection, and Girola was allowed to testify that Michelle said

that her grandfather was sexually harassing her by physically touching her. Before

testifying about the details of the conversation, Girola explained that she had

prepared a written statement at the conclusion of the conversation pursuant to school

protocol and because she believed it was the right thing to do.

When Girola’s written statement was offered into evidence, Gardiner objected

on the grounds of hearsay, lack of proper predicate, and the best evidence rule. The

trial court overruled the objection and Girola’s statement was read into evidence.

Girola’s written statement included details of Michelle’s conversation with

Girola. According to the statement, Michelle told Girola that her grandfather touched

her in inappropriate places, such as the breast area and genital area. Michelle told

Girola that her grandfather tried to have sexual intercourse with her, but Michelle

would not let him get that far. The sexual abuse occurred at her grandparents’ house,

mostly when her grandmother was out. But if her grandmother was at home, her

grandfather would make her go to the shed with him.

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Bonner testified about her interview of Michelle at the Garth House.

According to Bonner, Michelle “said that she was sexually harassed and she

explained that that was being touched where she didn’t want to be touched and she

talked about certain touches and she also talked about the grandpa putting his -- like,

licking her genital area.” Bonner testified Michelle told her this happened “a lot of

times.”

Hearsay is an out of court statement offered at trial for the truth of the matter

asserted in the statement. Tex. R. Evid. 801(d). The State has not indicated any

reason for proffering the statements other than for the truth of the matters asserted

therein. A witness’s prior statement is hearsay if it is consistent with her trial

testimony and is offered for the purpose of “bolstering” the witness’s credibility. Id.

801(e)(1)(B); Hammons v. State, 239 S.W.3d 798, 805 n.17 (Tex. Crim. App. 2007).

Therefore, Michelle’s out of court statements to Girola and Bonner were hearsay,

and Girola’s written statement detailing what Michelle told her was hearsay

containing hearsay. Hearsay is generally inadmissible unless an exception applies.

Hammons, 239 S.W.3d at 802.

To preserve a complaint for our review, a party must have presented to the

trial court a timely request, objection, or motion stating the specific grounds, if not

apparent from the context, for the desired ruling. Tex. R. App. P. 33.1(a)(1); Thomas

v. State, 505 S.W.3d 916, 924 (Tex. Crim. App. 2016). “[A]n objection must be

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specific in order to inform the trial judge of the basis of the objection and to afford

counsel the opportunity to remove the objection or supply other testimony.” Long v.

State, 800 S.W.2d 545, 548 (Tex. Crim. App. 1990).

The State correctly points out that there was no objection to Bonner’s

testimony. Therefore, we hold that Gardiner failed to preserve any complaint

regarding Bonner’s testimony. However, as explained below, we hold that Gardiner

properly preserved error as to his complaints about Girola’s testimony and written

statement.

Gardiner’s “hearsay” objections to Girola’s testimony and written statement

were specific enough to inform the court of the basis of his objection, placing the

burden on the State to establish the applicability of an exception which would allow

the admission of hearsay. Id.; see also Cordero v. State, 444 S.W.3d 812, 818 (Tex.

App.—Beaumont 2014, pet. ref’d).

The State argues Girola’s written statement was admissible as a present sense

impression under Texas Rule of Evidence 803(1). A present sense impression is “[a]

statement describing or explaining an event or condition, made while or immediately

after the declarant perceived it.” Tex. R. Evid. 803(1). It is questionable whether

Girola’s narrative statement qualified as a present sense impression. See, e.g.,

Fischer v. State, 207 S.W.3d 846, 859 (Tex. App.—Houston [14th Dist.] 2006),

aff’d, 252 S.W.3d 375 (Tex. Crim. App. 2008); Fields v. State, 515 S.W.3d 47, 55

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(Tex. App.—San Antonio 2016, no pet.). But even if it were, Girola’s written

statement recounts Michelle’s hearsay statement to Girola, which is an additional

level of hearsay for which an exception is required before Girola’s written statement

would be admissible. Tex. R. Evid. 805. Michelle’s hearsay statement to Girola was

not a present sense impression, since it was not made while or immediately after the

events she was describing to Girola. Therefore, the present sense impression

exception does not support the admission of Girola’s written statement.

The State also argues Girola’s written statement was admissible as a recorded

recollection under Texas Rule of Evidence 803(5). A recorded recollection is “[a]

record that: (A) is on a matter the witness once knew about but now cannot recall

well enough to testify fully and accurately; (B) was made or adopted by the witness

when the matter was fresh in the witness’s memory; and (C) accurately reflects the

witness’s knowledge, unless the circumstances of the record’s preparation cast doubt

on its trustworthiness.” Id. 803(5). Gardiner’s objection that “the proper predicate

has not been laid” was well-founded, because there was no testimony that Girola

was unable to recall her conversation with Michelle well enough to testify fully and

accurately about it. Moreover, even if the statement qualified as a recorded

recollection, the Rule provides, “If admitted, the record may be read into evidence

but may be received as an exhibit only if offered by an adverse party.” Id. Lastly,

Girola’s written statement contains Michelle’s statement, an additional level of

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hearsay to which the recorded recollection exception does not apply. Therefore, Rule

803(5) does not support the trial court’s admission of Girola’s written statement.

The State also asserts that Girola’s testimony and written statement were

admissible under Texas Code of Criminal Procedure article 38.072 which provides

a statutory exception to the hearsay rule. The statute allows a trial court to admit a

child’s statement describing sexual abuse to an outcry witness. Tex. Code Crim.

Proc. Ann. art. 38.072. An outcry witness is the first person over the age of eighteen,

other than the defendant, to whom the child spoke about the offense. Id. art. 38.072,

§ 2(a)(3). Among other requirements, the statute indicates the trial court must hold

a hearing outside the presence of the jury to determine whether the hearsay statement

is “reliable based on time, content, and circumstances of the statement.” Id. art.

38.072, § 2(b)(2). “These provisions of the statute are mandatory and must be

satisfied for the article 38.072 exception to be applied.” Cordero, 444 S.W.3d at 816.

The State asserts Gardiner failed to preserve his complaints about the trial

court’s failure to hold an Article 38.072 hearing prior to admitting Girola’s

testimony and written statement. The record reflects, and Gardiner concedes, that

although he objected both to Girola’s testimony and written statement as hearsay, he

did not request an Article 38.072 hearing.

Our analysis is controlled by Long and Cordero. In Long, the defendant’s

hearsay objection, without requesting an Article 38.072 hearing, was held to have

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been sufficient to preserve the issue for appellate review. 800 S.W.2d at 548. And,

as we held in Cordero, once the defendant objects on the basis of hearsay, the State,

as the proponent of the outcry statement’s admission, bears the burden to establish

the applicability of Article 38.072. 444 S.W.3d at 816. Therefore, it was the State’s

burden, not Gardiner’s, to request that the court conduct a hearing outside the

presence of the jury so that the State could establish the reliability of the statements

pursuant to Article 38.072. We hold Gardiner properly preserved his complaints

regarding Girola’s testimony and written statement, and that the trial court abused

its discretion when it overruled Gardiner’s hearsay objections without first

conducting an article 38.072 hearing.

Next, we must consider whether Gardiner was harmed by the admission of

Girola’s testimony and written statement. Duncan v. State, 95 S.W.3d 669, 672 (Tex.

App.—Houston [1st Dist.] 2002, pet. ref’d); see also Cordero, 444 S.W.3d at 819.

Because such error is non-constitutional error, we apply the harm analysis set forth

in rule 44.2(b). Id.; see also Tex. R. App. P. 44.2(b).

Non-constitutional error must be disregarded unless it affects substantial

rights of the defendant. Johnson v. State, 43 S.W.3d 1, 4 (Tex. Crim. App. 2001). A

substantial right is affected when the error had a substantial and injurious effect or

influence in determining the jury’s verdict. King v. State, 953 S.W.2d 266, 271 (Tex.

Crim. App. 1997); Duncan, 95 S.W.3d at 672. An appellate court should not

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overturn a criminal conviction for non-constitutional error “‘if the appellate court,

after examining the record as a whole, has fair assurance that the error did not

influence the jury, or influenced the jury only slightly.’” Barshaw v. State, 342

S.W.3d 91, 93 (Tex. Crim. App. 2011) (quoting Schutz v. State, 63 S.W.3d 442, 444

(Tex. Crim. App. 2001)). The improper admission of evidence is harmless when the

same facts are proven by other properly admitted evidence. Brooks v. State, 990

S.W.2d 278, 287 (Tex. Crim. App. 1999). Moreover, “[i]t is well settled that an error

in admission of evidence is cured where the same evidence comes in elsewhere

without objection; defense counsel must object every time allegedly inadmissible

evidence is offered.” Hudson v. State, 675 S.W.2d 507, 511 (Tex. Crim. App. 1984).

The record reveals four other prior consistent statements made by Michelle

that were introduced into evidence without objection. Michelle’s mother, Barbara,

testified, without objection, that she received a call from a school counselor who told

her that Michelle “had made an outcry to her that she was being sexually assaulted

by her Pawpaw.” As noted above, Bonner testified in detail, without objection, how

Michelle told her that Gardiner sexually harassed her, touching her in places she did

not want to be touched, including licking her genital area. The SANE nurse, Syrena

Krummel, testified, without objection, that Michelle told her that her grandfather

touched her genital area with his hands and put his mouth in her genital area on

multiple occasions. Lastly, Julie Prudhome, the clinical director at Garth House who

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conducted counseling and therapy sessions with Michelle, testified without

objection that Michelle described being sexually abused by her step-grandfather and

told her about being in a shed with him on multiple occasions when he would do

sexual things to her, including oral sex.

Michelle testified, without objection, that she told her school counselor about

her step-grandfather “sexually abusing [] or harassing” her. She also testified about

being examined by a nurse, having an interview at the Garth House, and seeing a

counselor named Julie.

Michelle told the jury that the events with her step-grandfather started with

“innocent hugs, kisses, stuff like that” but later “escalated into more touching, and,

like, more kissing[.]” Michelle testified that Gardiner kissed her on the mouth, put

his hand on her breast and genital areas, put his fingers inside her vagina, put his

mouth on her breast, and tried to put his penis on or inside her vagina but Michelle

“refused not [sic] to let that happen[.]” Michelle also testified that Gardiner put his

penis in her mouth and put his mouth on her vagina.

Michelle described to the jury the different locations where the abuse

occurred. She described it happening on a couch at her grandmother’s house when

“Nana was in the kitchen and she wasn’t paying attention or if she wasn’t at home

at the time[.]” She also recounted how the abuse would occur in the shed, the water

shed, in Gardiner’s truck, on the four-wheeler, and at the hunting lease. In many

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respects, Michelle’s testimony at trial was more detailed than that of Girola or her

written statement regarding the specifics of the sexual contact and the events

surrounding the sexual contact.

After examining the record as a whole, we are fairly assured that admitting

Girola’s testimony and written statement did not influence the jury or had but a slight

effect. Therefore, we hold that the trial court’s error in failing to conduct a hearing

prior to the admission of such evidence was harmless.

We overrule Gardiner’s first and second issues.

Testimony of Julie Prudhome

In his third issue, Gardiner argues that the trial court erred in admitting the

testimony of Julie Prudhome who testified that Michelle described the acts of sexual

abuse Gardiner performed on her. On appeal, Gardiner claims the statements made

by Prudhome were inadmissible hearsay. See Tex. R. Evid. 802. Texas Rule of

Evidence 803(4) allows for the admission of a hearsay statement if it “(A) is made

for—and is reasonably pertinent to—medical diagnosis or treatment; and (B)

describes medical history; past or present symptoms or sensations; their inception;

or their general cause.” Gardiner argues that this exception does not apply to

Prudhome’s testimony because the record does not reflect that the statements were

made for the purpose of making a diagnosis or treatment plan. See id. 803(4).

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Gardiner did not preserve this issue for appeal. At trial, Gardiner not only

stipulated that Prudhome was qualified to testify as an expert, but also failed to object

to the admission of Prudhome’s records of her approximately fifty visits with

Michelle from October 2019 to September 2020. Nor was there any objection when

Prudhome went on to describe what Michelle told her during those visits. To

preserve a complaint for appeal, a party must first present a timely request, objection,

or motion in the trial court that states the specific grounds for the desired ruling if it

isn’t apparent from the context of the record to avoid forfeiting the right to raise it

on appeal. Tex. R. App. P. 33.1. The trial court must have also ruled on the request,

objection, or motion, either expressly or implicitly, or the complaining party must

have objected to the trial court’s refusal to rule. Id. Almost every right – whether

constitutional or statutory – is waivable if the party fails to object, move for relief,

or ask the trial court for relief before complaining about the alleged error in a later

appeal. Smith v. State, 721 S.W.2d 844, 855 (Tex. Crim. App. 1986); Sartin v. State,

680 S.W.3d 663, 667 (Tex. App.—Beaumont 2023, no pet.). There are, however,

two relatively small categories of errors that are exceptions to the general rule: (1)

violations of rights which are waivable-only; and (2) denials of absolute systemic

requirements. Saldano v. State, 70 S.W.3d 873, 888 (Tex. Crim. App. 2002) (cleaned

up). Waivable-only rights are “‘rights of litigants which must be implemented by the

system unless expressly waived.’” Mendez v. State, 138 S.W.3d 334, 340 (Tex.

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Crim. App. 2004) (quoting Marin v. State, 851 S.W.2d 275, 279 (Tex. Crim. App.

1993), overruled on other grounds by Cain v. State, 947 S.W.2d 262 (Tex. Crim.

App. 1997)); Saldano, 70 S.W.3d at 888.

Even if we were to assume that Michelle’s statements to Prudhome were not

made for medical diagnosis or treatment, evidentiary complaints such as the one

Gardiner raises in his third issue are forfeited in the absence of a proper and timely

objection to the evidence during trial. See Saldano, 70 S.W.3d at 889 (observing that

under the Marin framework, a defendant’s “failure to object in a timely and specific

manner during trial forfeits complaints about the admissibility of evidence[]”).

Because Gardiner failed to object to Prudhome’s testimony at trial, he failed to

preserve his complaint for appellate review. Issue three is overruled.

Admission of the Recorded Phone Call and Interview

In his fourth issue, Gardiner complains that the trial court erred in admitting

a recording of a telephone call and an interview between Gardiner and Lieutenant

McClelland. He asserts that the statements made in the recording were not voluntary

for several reasons. First, he argues that he was “misled” and points to his trial

testimony to show that he did not understand what was going on when he was talking

with McClelland. Next, he argues that because McClelland never informed Gardiner

that their conversation was being recorded, the trial court should have excluded the

video. Finally, he argues that he made the statements without counsel present.

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Gardiner filed a motion to suppress the recordings, and we construe

Gardiner’s fourth issue as challenging the denial of his motion to suppress as well

as the overruling of his objections at trial. During the suppression hearing,

McClelland testified that he had heard that Gardiner knew of the outcry statement

and was depressed, so he called Gardiner on the phone. Gardiner spoke to

McClelland voluntarily over the phone. McClelland asked Gardiner if he wanted to

come in and talk to him in person, and Gardiner agreed. The phone conversation and

in-person interview took place prior to McClelland’s obtaining an arrest warrant for

Gardiner.

McClelland testified that Gardiner voluntarily came to the sub-courthouse

with his mother, who stayed outside during the interview, to talk to him in his office.

McClelland said Gardiner was free to get up and leave at any point during the

interview; Gardiner was neither under arrest nor detained. McClelland read Gardiner

his Miranda warnings prior to the interview, even though Gardiner was not in

custody, because McClelland wanted Gardiner to be aware of his rights and did not

need to make a statement at all. At no point during the interview did Gardiner request

an attorney.

The State offered the recorded phone call and interview McClelland

conducted with Gardiner at the hearing. The recorded in-person interview showed

that McClelland read Gardiner his Miranda rights. Gardiner affirmatively nodded

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his head when asked if he understood his rights. When McClelland asked Gardiner

if he wanted to talk to him, Gardiner responded, “I don’t know what to do, I’ve never

been in this situation before.” McClelland told Gardiner that Michelle had already

explained everything that had happened, and Gardiner admitted to touching

Michelle’s vaginal area and putting his mouth on Michelle’s vagina. Gardiner again

repeated the statement, “I don’t know what to do,” to which McClelland responded,

“I can’t tell you what to do.”

During the interview, Gardiner’s phone rang, and he was able to answer it and

talk to the person on the other end of the line. Near the end of the video, McClelland

told Gardiner that he did the right thing and McClelland was going to let Gardiner

take his mother back home. Gardiner asked McClelland, “Do I need to get a lawyer

or anything?” McClelland told him, “That’s totally up to you. I can’t give you legal

advice.” He also told Gardiner that if he wanted a lawyer, it was totally up to

Gardiner. Gardiner repeated, “I don’t know what to do.” McClelland escorted

Gardiner out of his office, and the interview ended.

Gardiner’s attorney did not ask McClelland any questions and did not call any

witnesses but argued that McClelland manipulated and intimidated Gardiner and did

not offer Gardiner an attorney. After hearing arguments from both counsel, the trial

court denied the motion to suppress.

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At trial, McClelland testified regarding the recordings. Both recordings were

offered into evidence, and Gardiner renewed the objections he made during the

motion to suppress hearing. The trial court overruled the objections and admitted the

recordings.

“We review a trial court’s ruling on a motion to suppress evidence under a

bifurcated standard of review.” Lerma v. State, 543 S.W.3d 184, 189-90 (Tex. Crim.

App. 2018). A trial court’s decision to grant or deny a motion to suppress is reviewed

under an abuse of discretion standard. Villarreal v. State, 935 S.W.2d 134, 138 (Tex.

Crim. App. 1996); Layton v. State, 280 S.W.3d 235, 240 (Tex. Crim. App. 2009). At

a suppression hearing, the trial court is the exclusive trier of fact and judge of the

credibility of witnesses. See id. An appellate court affords almost total deference to

a trial court’s determination of the historical facts supported by the record, especially

when the trial court’s findings are based on an evaluation of credibility and

demeanor. Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim. App. 1997); Monjaras

v. State, 664 S.W.3d 921 (Tex. Crim. App. 2022). The appellate court also affords

the same amount of deference to a trial court’s ruling on “application of law to fact

questions,” also known as “mixed questions of law and fact,” if the resolution of

those questions turns on an evaluation of credibility and demeanor. Id. The court

reviews de novo those questions not turning on credibility and demeanor. Id. When

there are no written findings in the record, an appellate court is to view the evidence

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in the light most favorable to the trial court’s ruling and uphold the ruling on any

theory of law applicable to the case. State v. Ross, 32 S.W.3d 853, 855 (Tex. Crim.

App. 2000); Lerma v. State, 543 S.W.3d at 184.

In determining whether the trial court’s ruling on a motion to suppress is

supported by the record, we generally consider only the evidence adduced at the

hearing on the motion unless the suppression issues have been consensually

relitigated by the parties during the trial on the merits. Rachal v. State, 917 S.W.2d

799, 809 (Tex. Crim. App. 1996); Arguellez v. State, 409 S.W.3d 657, 662 (Tex.

Crim. App. 2013). Because the parties in this case consensually relitigated the

suppression issues at trial, we will examine the trial evidence as well as the evidence

from the suppression hearing.

First, we address Gardiner’s contention that because McClelland did not

inform him that their conversation was being recorded, the trial court should have

excluded the video. Article 38.22, section 3 of the Texas Code of Criminal Procedure

governs the admissibility of oral statements made by an accused in a criminal

proceeding. Tex. Code Crim. Proc. Ann. art. 38.22, § 3. That section provides that

no oral statement of an accused made as a result of custodial interrogation shall be

admissible unless certain requirements are met, which are: (1) an electronic

recording is made of the statement; (2) prior to the statement but during the recording

the accused is given the warning in section 2, subsection (a) of the article and the

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accused knowingly, intelligently, and voluntarily waives any rights set out in the

warning; (3) the recording device was capable of making an accurate recording, the

operator was competent, and the recording is accurate and has not been altered; (4)

all voices on the recording are identified; and (5) not later than the 20th day before

the date of the proceeding, the attorney representing the defendant is provided with

a true, complete, and accurate copy of all recordings of the defendant made under

this article. Id. No portion of the statute requires the accused to be informed that the

statement is being recorded. Id.; Moore v. State, 882 S.W.2d 844, 846 (Tex. Crim.

App. 1994). Although article 38.22 does not apply since Gardiner was not in custody

at the time of his interview, there is simply nothing that required McClelland to

inform him that his statement was being recorded.

Gardiner complains that the trial court erred in admitting the video recording

because he didn’t have counsel present during his interview. The Fifth Amendment

right to have an attorney present during police interrogation applies to any offense

about which the police might wish to question a suspect. McNeil v. Wisconsin, 501

U.S. 171, 176 (1991); State v. Gobert, 275 S.W.3d 888, 892 (Tex. Crim. App. 2009).

An accused has a Fifth Amendment right to have counsel present during a custodial

interrogation. Miranda v. Arizona, 384 U.S. 436, 471 (1966). “Once the suspect has

invoked his Fifth Amendment right to counsel, police interrogation must cease until

counsel has been provided or the suspect himself reinitiates a dialogue.” Gobert, 275

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S.W.3d at 892. “The right to counsel is considered invoked where a person indicates

he or she desires to speak to an attorney or have an attorney present during

questioning.” Dinkins v. State, 894 S.W.2d 330, 351 (Tex. Crim. App. 1995)

(quoting Lucas v. State, 791 S.W.2d 35, 45 (Tex. Crim. App. 1989)). “An invocation

must be clear and unambiguous; the mere mention of the word ‘attorney’ or ‘lawyer’

without more, does not automatically invoke the right to counsel.” Id. Rather, the

right to counsel is considered invoked when the accused indicates that he wants to

speak to an attorney or have an attorney present during questioning. Lucas, 791

S.W.2d at 45.

In reviewing an alleged invocation of the right to counsel, a reviewing court

must look at the totality of the circumstances surrounding the interrogation and

alleged invocation to determine whether an accused’s statement can be construed as

an actual invocation of the right. Dinkins, 894 S.W.2d at 351. The inquiry is an

objective one: whether a reasonable officer, under similar circumstances, would

have understood the statement to be a request for an attorney or merely one that

might be invoking the right to counsel. Id.

Gardiner does not point to any specific testimony at trial, or any specific

statement made in the recorded phone call or video interview which shows a clear

request for an attorney. Instead, our review of the phone call and video shows that

there was no clear invocation of Gardiner’s Fifth Amendment right to counsel.

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During the recorded phone call, Gardiner said, “I need to talk to somebody; I don’t

know what to do. I don’t know if I need to have a lawyer or…I don’t know what

I’ve got to do.” McClelland responded, “Well, if you come up here, I can talk to

you.” At the end of the video interview, as Gardiner was leaving, Gardiner said, “Do

I need to get a lawyer? I don’t know what I am supposed to do.” McClelland

responded, “That’s totally up to you.” That was the only mention of an attorney

during the interview.

Here, Gardiner did not make an unequivocal request to speak to an attorney,

but simply asked if he needed to get a lawyer. This statement was not a clear

invocation of the right to counsel because it did not indicate that Gardiner wanted to

speak to an attorney nor that he wanted an attorney to be present during questioning.

See Lucas, 791 S.W.2d at 45. Therefore, McClelland was free to continue

questioning Gardiner. Nothing on the videotape indicates that McClelland

discouraged Gardiner from speaking with an attorney. In fact, McClelland told

Gardiner that it was “totally up to [Gardiner]” if he wanted to get an attorney.

Therefore, Gardiner’s statements were not obtained in violation of his Fifth

Amendment right to counsel, and the trial court did not abuse its discretion in

denying Gardiner’s motion to suppress on this basis.

Article 38.21 states that, “[a] statement of an accused may be used in evidence

against him if it appears that the same was freely and voluntarily made without

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compulsion or persuasion, under the rules hereafter prescribed.” Tex. Code Crim.

Proc. Ann. art. 38.21. Article 38.22 contains those prescribed rules. Id. art. 38.22, §

6. Section 6, the “general voluntariness” provision of Article 38.22, states in relevant

part that:

In all cases where a question is raised as to the voluntariness of a
statement of an accused, the court must make an independent finding
in the absence of the jury as to whether the statement was made under
voluntary conditions.

If the statement has been found to have been voluntarily made and held
admissible as a matter of law and fact by the court in a hearing in the
absence of a jury, the court must enter an order stating its conclusion as
to whether or not the statement was voluntarily made, along with
specific findings of fact upon which the conclusion was based, which
order shall be filed among the papers of the cause.

….

Upon the finding by the judge as matter of law and fact that the
statement was voluntarily made, evidence pertaining to such matter
may be submitted to the jury and it shall be instructed unless the jury
believes beyond a reasonable doubt that the statement was voluntarily
made, the jury shall not consider such statement for any purpose nor
any evidence obtained as a result thereof. 2

Id. Article 38.22, Section 6, applies to “all cases where a question is raised as to the

voluntariness of a statement of an accused.” Terrazas, 4 S.W.3d 720, 727 (Tex.

2The trial court in this case did not “enter an order” containing its findings of

fact and conclusions of law. However, neither party has complained about the
absence of findings and conclusions. “The ‘right’ to findings and conclusions is a
statutory ‘right’ which is forfeited by a party’s failure to insist upon its
implementation.” State v. Terrazas, 4 S.W.3d 720, 728 (Tex. Crim. App. 1999).
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Crim. App. 1999). A confession may be found involuntary when “the totality of the

circumstances demonstrates that the confessor did not make the decision to confess

of his own free will.” Green v. State, 934 S.W.2d 92, 99 (Tex. Crim. App. 1996);

Delao v. State, 235 S.W.3d 235, 239 (Tex. Crim. App. 2007). “The ultimate question

is whether the suspect’s will was overborne.” Creager v. State, 952 S.W.2d 852, 856

(Tex. Crim. App. 1997); Martinez v. State, 513 S.W.3d 87, 93 (Tex. App.—Houston

[14th Dist.] 2016, no pet.).

“In Texas, it is well established that confessions given by adults are to be

evaluated with the totality of the circumstances standard.” Delao, 235 S.W.3d at 239.

The issue of involuntariness “can be, but need not be, predicated on police

overreaching.” Oursbourn v. State, 259 S.W.3d 159, 172 (Tex. Crim. App. 2008).

Thus, Section 6 protects people from police overreaching, a private threat, and even

themselves. See id. at 172.

Oursbourn and other decisions provide guidance on the appropriate factors to

be considered when determining if a confession is voluntary. The Court of Criminal

Appeals identified a number of fact scenarios in which the defendant’s statement

was held involuntary under Miranda or the Due Process Clause because of police

overreaching. See id. at 170-71. That decision also identified fact scenarios that

could raise state-law claims of involuntariness. See id. at 172-73. The court

suggested that “youth, intoxication, mental retardation, and other disabilities…are

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factors that a jury, armed with a proper instruction, is entitled to consider.” Id. at

173.

Gardiner argues in his brief that his statements were not made voluntarily

because he was never informed that his conversation was being recorded, that he

didn’t understand what McClelland was talking about because he was “distraught”

and had “never been in that situation before.” Reviewed in the light most favorable

to Gardiner, this evidence would not enable a reasonable jury to conclude that his

confession was involuntary. He does not point to any evidence suggesting that he

was intoxicated, mentally impaired, of low intelligence, ignorant of the situation, or

threatened with physical violence of any kind, or that the officer made promises or

misrepresentations that were calculated to induce him to make a false statement. See

Oursbourn, 259 S.W.3d at 169-73; see also Estrada v. State, 313 S.W.3d 274, 299-

300 (Tex. Crim. App. 2010).

In fact, the recorded video shows quite the opposite. The video shows that

Gardiner was free to answer a telephone call during the middle of the interview; the

tone of the conversation between McClelland and Gardiner was neither forceful,

coercive, or misleading; the interview lasted approximately twenty-eight minutes;

Gardiner never asked to leave the interview; and McClelland was the one who ended

the interview because he wanted to assure that Gardiner was able to take his mother

home after she had been sitting on a hard wood bench outside of McClelland’s office.

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Moreover, it is clear from the recording that Gardiner understood what was

going on. Gardiner understood his rights when he affirmatively nodded after

McClelland read them to him. He knew who Michelle was without McClelland’s

saying her name and acknowledged that she was his step-granddaughter; he

answered McClelland’s questions in a responsive manner; and he provided the

different locations the abuse took place.

Viewing the totality of the circumstances, we conclude the entirety of

Gardiner’s recorded interview was voluntary. The trial court did not abuse its

discretion in denying Gardiner’s motion to suppress nor in overruling Gardiner’s

objections at trial. We overrule his fourth issue.

Gardiner’s Decision to Testify

In Gardiner’s fifth issue, he complains that the cumulative effect of the

erroneous admission of all of the evidence about which he complains on appeal –

the testimony from outcry witnesses, Lacy Girola and Magan Bonner, the written

statement by Girola, the testimony of Julie Prudhome, and the recorded telephone

call and interview – was harmful because it greatly affected his trial strategy.

Gardiner claims that after the “improper[] buttressing” of Michelle’s testimony by

an “avalanche of improper statements,” he felt “absolutely compelled to take the

stand and testify in his defense” in violation of his Fifth Amendment right to remain

silent.

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The Fifth Amendment to the United States Constitution provides that “[n]o

person…shall be compelled in any criminal case to be a witness against himself.”

U.S. CONST. amend. V. This guarantee was made applicable to the states by the Due

Process Clause of the Fourteenth Amendment. Mallory v. Hogan, 378 U.S. 1, 8

(1964). A defendant’s right not to testify may be waived only if the defendant’s

waiver is knowing, intelligent, and voluntary. Brown v. State, 617 S.W.2d 234, 236

(Tex. Crim. App. 1981); Birdsong v. State, 82 S.W.3d 538, 541-544 (Tex. App.—

Austin 2002, no pet.). The right may be waived when the defendant voluntarily takes

the stand. Brumfield v. State, 445 S.W.2d 732, 735 (Tex. Crim. App. 1969).

After the State called its first five witnesses, the trial court made the following

comment after noting that defense counsel had not cross-examined any of these

witnesses:

I just want that to be on the record and to be very clear that counsel is
drawing his strategies from his client and he is – he is talking with his
client about these things, from my standpoint. Again, I’m not going to
try and get into your strategy; but I just wanted that on the record.

Defense counsel responded:

Yeah. That’s fine. I don’t mind saying that my client tells me “Just let
it go. We don’t have any questions. Just let it go,” because he wants to
tell his side of the story.

At that point of the trial, Girola had testified, the court had admitted Girola’s

written statement, McClelland had testified, the court had admitted the recordings of

Gardiner’s phone call and interview, and three other witnesses, including Michelle’s
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mother, Barbara, had testified. Neither Michelle, Bonner nor Prudhome had testified

yet. So, the only potentially improper “buttressing” of Michelle’s upcoming

testimony at that point were Girola’s testimony and written statement, the admission

of which we have already held to have been harmless, and the recordings of

Gardiner’s own statements to McClelland, the admission of which we have already

held to have been within the trial court’s discretion.

Gardiner’s claim that he felt compelled to take the stand due to the cumulative

effect of all of the out-of-court statements is neither supported by the record, nor the

result of harmful error. Gardiner’s fifth issue is overruled.

Conclusion

Having overruled all of Gardiner’s issues, the judgment of the trial court is

affirmed.

AFFIRMED.

KENT CHAMBERS
Justice

Submitted on March 20, 2024
Opinion Delivered July 31, 2024
Do Not Publish

Before Golemon, C.J., Wright and Chambers, JJ.

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