Opinion issued June 11, 2015
In The
Court of Appeals
For The
First District of Texas
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NO. 01-14-00579-CR
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MAYRA FLORES, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 339th District Court
Harris County, Texas
Trial Court Case No. 1280239
MEMORANDUM OPINION
Appellant, Mayra Flores, was charged by indictment with murder. 1 The jury
found her guilty, and the trial court assessed punishment at 25 years’ confinement.
1
See TEX. PENAL CODE ANN. § 19.02(b) (Vernon 2011).
In one issue, Appellant argues the trial court abused its discretion by admitting the
two audio recordings of her custodial interrogation.
We affirm.
Background
On October 3, 2010, Appellant and her boyfriend, Francisco Castellano,
were arguing. In the course of the argument, Appellant stabbed Castellano,
ultimately killing him. Officers W. Kuhlman and R. Hunter interrogated
Appellant. Officer Kuhlman recorded the interview. Thirty-six minutes into the
interrogation, the recording device stopped. About 20 minutes after that, Officer
Kuhlman began recording again. The interrogation lasted for another 53 minutes
before the recording device stopped again.
At trial, Appellant sought to suppress the admission of the two audio
recordings, claiming the recording device cutting off between the first and second
recording prevented the State from establishing the admissibility requirements for
both recordings. The trial court overruled the objection and admitted both
recordings.
Motion to Suppress Interrogation Audio Recordings
In her sole issue on appeal, Appellant argues the trial court abused its
discretion by admitting the two audio recordings of her custodial interrogation.
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A. Standard of Review
We review a trial court’s denial of a motion to suppress under a bifurcated
standard of review. Turrubiate v. State, 399 S.W.3d 147, 150 (Tex. Crim. App.
2013). We review the trial court’s factual findings for abuse of discretion and
review the trial court’s application of the law to the facts de novo. Id. Almost total
deference should be given to a trial court’s determination of historical facts,
especially those based on an evaluation of witness credibility or demeanor.
Gonzales v. State, 369 S.W.3d 851, 854 (Tex. Crim. App. 2012). At a suppression
hearing, the trial court is the sole and exclusive trier of fact and judge of the
witnesses’ credibility and may choose to believe or disbelieve all or any part of the
witnesses’ testimony. Maxwell v. State, 73 S.W.3d 278, 281 (Tex. Crim. App.
2002); State v. Ross, 32 S.W.3d 853, 855 (Tex. Crim. App. 2000).
Where, as here, a trial judge does not make explicit findings of fact, we
review the evidence in the light most favorable to the trial court’s ruling. Walter v.
State, 28 S.W.3d 538, 540 (Tex. Crim. App. 2000). We will defer to the trial
court’s fact findings and not disturb the findings on appeal unless the trial court
abused its discretion in making a finding not supported by the record. Cantu v.
State, 817 S.W.2d 74, 77 (Tex. Crim. App. 1991).
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B. Analysis
Appellant’s objection to the two audio recordings is based on article 38.22 of
the Texas Code of Criminal Procedure. See TEX. CODE CRIM. PROC. ANN. art.
38.22 (Vernon Supp. 2014). Section three of article 38.22 establishes certain
requirements for the admissibility of the recording of a custodial interrogation. Id.
art. 38.22, § 3(a). One of the requirements is “the recording device was capable of
making an accurate recording, the operator was competent, and the recording is
accurate and has not been altered.” Id. art 38.22, § 3(a)(3). Appellant argues that,
because the recording device stopped recording and left a 20-minute portion of the
interrogation unrecorded, the recording of the interrogation is not accurate.
As an initial matter, we disagree with Appellant’s characterization of the
length of time Appellant and Officers Kuhlman and Hunter talked after the first
recording stopped. Appellant asserts in her brief that they continued to talk for 20
minutes after the recorder stopped, that they discussed the events surrounding
Castellano’s death, and that she made exculpatory statements that are not otherwise
in the recordings. While Appellant testified to these facts during her examination
and cross-examination at trial, this testimony was not before the trial court at the
time Appellant raised the motion to suppress earlier in the trial. Because this
evidence was not before the trial court, it is not part of our appellate review. See
Weatherred v. State, 15 S.W.3d 540, 542 (Tex. Crim. App. 2000) (holding
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appellate court reviews trial court’s ruling on admissibility of evidence “in light of
what was before the trial court at the time the ruling was made”).
The only description of events between the two recordings that was before
the trial court at the time of the ruling comes from the second recording. At the
start of the recording, Officer Kuhlman states that, after the first recording stopped,
everyone stopped talking, Appellant took a restroom break, and everyone got
something to drink. Appellant was present when Officer Kuhlman made that
statement and did not make any corrections to those statements. After Officer
Kuhlman read Appellant her statutory warning again, Officer Hunter identified the
last topic discussed when they “left off”, which concerned when Appellant and
Castellano had kids. That matched what Officer Hunter and Appellant were
discussing at the time the first recording stopped.
In Quinones, the defendant claimed his recorded statement was inadmissible
because, in part, “the tape had been altered by [a] fifteen second tapeover.”
Quinones v. State, 592 S.W.2d 933, 943 (Tex. Crim. App. 1980). The Court of
Criminal Appeals held that “any alteration in a tape [does not] render[] the tape per
se inadmissible. If the alteration is accidental and is sufficiently explained so that
its presence does not affect the reliability and trustworthiness of the evidence, the
recording can still be admitted.” Id. at 944.
5
Quinones was decided under a framework that predates article 38.22. See id.
at 943 (citing Edwards v. State, 551 S.W.2d 731, 733 (Tex. Crim. App. 1977)).
Since the enactment of article 38.22, however, the Court of Criminal Appeals has
confirmed that inadvertent anomalies that do not affect the overall reliability of the
recording do not constitute the impermissible sort of alteration contemplated by
section 3 of article 38.22. See Maldonado v. State, 998 S.W.2d 239, 244–46 (Tex.
Crim. App. 1999) (citing CRIM. PROC. art. 38.22, § 3; Quinones, 592 S.W.2d at
944); see also Martines v. State, 371 S.W.3d 232, 244 (Tex. App.—Houston [1st
Dist.] 2011, no pet.) (citing Maldonado and Quinones for same proposition).
In Maldonado, the defendant complained of a three-second and a one-second
portion of the recording of his statement that had been “over-recorded.” Id. at 244.
The Court of Criminal Appeals noted there was no evidence that the over-
recordings were intentional and they did not occur during his admission to killing
the victim. Id. at 244–45. Based on this, the court held, “There is adequate
evidence here to support the . . . conclusion that the anomalies were merely
inadvertent and did not affect the overall reliability of the tape.” Id. at 245.
The same is true here. The evidence in the record at the time of the trial
court’s ruling established that the tape stopped recording on accident, that the
parties stopped talking after the recording stopped, and that the parties were
discussing incidental matters at the time the recording stopped. We hold this does
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not undermine the reliability of the recording. See Maldonado, 998 S.W.2d at
245–46; Quinones, 592 S.W.2d at 944.
We overrule Appellant’s sole issue.
Conclusion
We affirm the judgment of the trial court.
Laura Carter Higley
Justice
Panel consists of Chief Justice Radack and Justices Higley and Massengale.
Do not publish. TEX. R. APP. P. 47.2(b).
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