Sergio Herrera v. State

COURT OF APPEALS
EIGHTH DISTRICT OF TEXAS
EL PASO, TEXAS

SERGIO HERRERA, §
No. 08-11-00193-CR
Appellant, §
Appeal from the
v. §
243rd District Court
THE STATE OF TEXAS, §
of El Paso County, Texas
Appellee. §
(TC# 20100D00593)
§

OPINION

A jury convicted Sergio Herrera, Appellant, of aggravated sexual assault of an elderly

individual, and assessed punishment at twenty-three years’ imprisonment. In three issues on

appeal, Appellant complains of (1) the admission of statements the victim made to a

sexual-assault nurse examiner and a psychologist, (2) the admission of Appellant’s recorded

statements to police, and (3) the admission of those portions of his recorded statements invoking

his right to counsel. For the following reasons, we affirm.

BACKGROUND

Because Appellant does not challenge the sufficiency of the evidence to support his
conviction, only a brief recitation of the facts is necessary. On September 17, 2009, City of El

Paso Police Detectives Deanne Hicks and Jimmy Aguirre arrested Appellant pursuant to an

arrest warrant1 for the aggravated sexual assault of Joyce Stautzenberger (hereinafter J.S.), an

eighty-five-year-old woman.2 While Appellant was being transported to the police station,

Appellant was asked to read aloud a card containing his Miranda 3 warnings. Appellant

complied and then signed the card. During this time, Appellant was not questioned by police.

At the police station, after Appellant agreed to give a recorded statement, he was again

asked to read aloud a Miranda warning card. Appellant read the Miranda warning card for the

second time and told detectives that he wanted to know what the allegations were before

deciding whether or not to obtain the services of an attorney. After the allegations were

explained to him, Appellant continued the interview and denied having any sexual contact with

J.S. At the end of the interview, Appellant invoked his right to counsel and the detectives

refrained from further questioning. Appellant was then placed in a holding cell while the

booking paperwork was completed.

While in the holding cell, Appellant signaled to Detective Aguirre and stated that he had

been embarrassed by the presence of the female detective, but he “wished to plead guilty to

consensual sex . . . .” Prior to giving a second recorded statement, Appellant again read aloud

and signed a Miranda warning card. Appellant told Detective Aguirre that he understood his

rights and was willing to speak to him.

Appellant was charged by indictment with the aggravated sexual assault of an elderly

individual. See TEX. PENAL CODE ANN. § 22.021(a)(2)(A), (C) (West 2011). Prior to trial,

1
Appellant was also arrested for outstanding traffic warrants.
2
Shortly after the incident, J.S. was diagnosed with cancer and passed away.
3
Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).
2
Appellant moved to suppress the two recorded statements he gave to police claiming violations

of articles 38.22 and 38.23 of the Code of Criminal Procedure and violations of his right to

counsel. The trial court denied Appellant’s motion to suppress and entered findings of fact and

conclusions of law. At trial, Appellant pleaded not guilty to the alleged offense. The Miranda

warning cards signed by Appellant and his recorded statements to police were admitted into

evidence over the objections of Appellant.

DISCUSSION

CONFRONTATION RIGHTS

In Issue One, Appellant contends that his Sixth and Fourteenth Amendment rights were

violated by the admission of statements made by J.S., who was unavailable for confrontation and

cross-examination due to her death, to Kathleen Justice, a sexual-assault nurse examiner

(SANE), and Diane Bryan, a clinical psychologist. Outside the presence of the jury, the State

argued that J.S.’s statements were admissible under Rule 803(4) of the Texas Rules of Evidence.

See TEX. R. EVID. 803(4) (providing that hearsay statements meeting the following criteria are

not excluded by the hearsay rule: “Statements made for purposes of medical diagnosis or

treatment and describing medical history, or past or present symptoms, pain, or sensations, or the

inception or general character of the cause or external source thereof insofar as reasonably

pertinent to diagnosis or treatment.”). On appeal, Appellant argues that J.S.’s statements to

Nurse Justice were not made for purposes of medical diagnosis and treatment, but were made for

purposes of investigating a sexual assault allegation. Similarly, Appellant asserts that J.S.’s

statements to Dr. Bryan do not fit any hearsay exception because Dr. Bryan counseled J.S. long

after the alleged sexual assault occurred.

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 Standard of Review and Applicable Law

The Confrontation Clause of the Sixth Amendment provides that in all criminal

prosecutions, the accused shall enjoy the right to be confronted with the witnesses. Langham v.

State, 305 S.W.3d 568, 575 (Tex.Crim.App. 2010); see also U.S. CONST. amend. VI. The

Confrontation Clause is binding on the states under the Fourteenth Amendment. Michigan v.

Bryant, 131 S.Ct. 1143, 1152, 179 L.Ed.2d 93 (2011). In Crawford v. Washington, the

Supreme Court held that the Confrontation Clause bars out-of-court statements that are

testimonial, unless the declarant is unavailable and the defendant had a prior opportunity to

cross-examine the declarant. 541 U.S. 36, 59, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004).

The threshold inquiry for supposed Confrontation Clause violations is whether the

admitted statements are testimonial or nontestimonial in nature. Vinson v. State, 252 S.W.3d

336, 338 (Tex.Crim.App. 2008); Lollis v. State, 232 S.W.3d 803, 805-06 (Tex.App. – Texarkana

2007, pet. ref’d). Whether a statement is testimonial or nontestimonial is a question of law that

we review de novo. Langham, 305 S.W.3d at 576; see also Wall v. State, 184 S.W.3d 730, 742

(Tex.Crim.App. 2006). Statements are testimonial if “the primary purpose of the interrogation

is to establish or prove past events potentially relevant to later criminal prosecution.” Davis v.

Washington, 547 U.S. 813, 822, 126 S.Ct. 2266, 165 L.Ed.2d 224 (2006). When out-of-court

statements in the context of an interview are made primarily for the purpose of medical diagnosis

and treatment, they are not testimonial. See Melendez-Diaz v. Massachusetts, 557 U.S. 305,

312 n.2, 129 S.Ct. 2527, 174 L.Ed.2d 314 (2009) (medical records created for purposes of

treatment are not testimonial within the meaning of Crawford); Berkley v. State, 298 S.W.3d

712, 715 (Tex.App. – San Antonio 2009, pet. ref’d) (holding that SANE’s report was

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nontestimonial where State presented evidence that purpose of report was to render proper

medical diagnosis and treatment).

It appears to be undisputed that Appellant did not have a prior opportunity to

cross-examine J.S. Thus, we must determine whether J.S.’s statements were testimonial or

non-testimonial in order to decide whether Appellant’s confrontation rights were violated.

Nurse Justice’s Testimony

At trial, Nurse Justice testified that she was employed by Sierra Medical Center. She

further testified that she was not aligned with law enforcement and was not biased in favor of the

prosecution. Nurse Justice explained that a SANE exam is performed to evaluate and treat the

victim. She explained that as part of the SANE exam which is documented in a medical record,

she obtains a history from the patient which includes a history of allergies, medications,

illnesses, surgeries, what happened to the patient, where it happened, when it happened, and

whether the patient was injured or in any pain. The purpose of obtaining a patient history is to

evaluate the patient, provide care, and formulate a diagnosis. Nurse Justice examined J.S. at the

hospital the day after the alleged sexual assault occurred. At trial, she identified and explained

the medical records relating to J.S.’s SANE exam. According to Nurse Justice, J.S. an

eighty-five-year-old resident of an assisted living facility, reported that the previous night, a male

had entered her room, made her lay down on the bed, and raped her despite her protests for him

to stop. Nurse Justice observed redness and tears inside J.S.’s genitalia and testified that J.S.’s

injuries were consistent with sexual assault. The records from Sierra Medical Center and Nurse

Justice’s testimony regarding J.S.’s statements were admitted in evidence over Appellant’s

objections.

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 Dr. Bryan’s Testimony

Dr. Bryan testified that she was contacted by J.S’s daughter regarding her mother.4 Dr.

Bryan explained that in order to treat patients for intervention and trauma, she has to know what

happened to them in order to know where to take the treatment to and to know what to do with

the patients. After two extensive sessions with J.S., Dr. Bryan diagnosed J.S. with

Posttraumatic Stress Syndrome (PTSD). The root cause of J.S.’s PTSD was the rape. J.S. told

Dr. Bryan that a man, who she later recognized as someone who had provided physical therapy

to her at another facility, came into her apartment, threw her on the bed, took off her clothes, and

raped her. Dr. Bryan worked with J.S. to detox her of the trauma from the rape. Dr. Bryan’s

records and testimony regarding J.S.’s statements were admitted over Appellant’s objections.

We conclude that the records and testimony from Nurse Justice and Dr. Bryan did not

violate Appellant’s confrontation rights because J.S.’s statements were not testimonial, but rather

her statements were made for medical diagnosis and treatment. The primary purpose of the

statements made to Nurse Justice and the SANE exam were to allow Nurse Justice to evaluate

J.S., formulate a diagnosis, and provide care. After Nurse Justice obtained J.S.’s history, she

was able to administer the appropriate antibiotic for treatment of possible sexually-transmitted

diseases. Similarly, Dr. Bryan acquired J.S.’s history for purposes of treating her for

intervention and trauma. With the information J.S. provided to Dr. Bryan during their

counseling sessions, Dr. Bryan was able to diagnosis and treat J.S. for PTSD.

The records and statements J.S. made to Nurse Justice and Dr. Bryan were made with a

primary purpose of medical diagnosis and treatment, and not criminal investigation thus, they are

4
Karen Meister, J.S.’s daughter, testified that after the sexual assault, her mother was unhappy and withdrawn.
Meister hired Dr. Bryan to help her mother.
6
nontestimonial in nature. See Melendez-Diaz, 557 U.S. at 312 n.2; Berkley, 298 S.W.3d at 715;

see also Lollis, 232 S.W.3d at 808-10 (finding statements made by children to counselor were

nontestimonal because statements were made during course of treatment for behavioral problems

and abuse issues). Accordingly, we conclude that the trial court did not violate Appellant’s

confrontation rights by admitting the complained-of evidence. See Lollis, 232 S.W.3d at

809-10; see also Morrison v. State, No. 2-05-443-CR, 2007 WL 614143, at *4 (Tex.App. – Fort

Worth Mar. 1, 2007, pet. ref’d) (mem. op.) (not designated for publication) (child’s statements to

SANE during exam held to be nontestimonial because purpose of SANE exam was to ascertain

whether child had been sexually assaulted and needed treatment). Issue One is overruled.

APPELLANT’S RECORDED STATEMENTS TO POLICE

In Issues Two and Three, Appellant challenges the admission of his recorded statements

to police. In Issue Two, Appellant contends that the trial court erred by admitting the two

recorded statements he made to police because the State failed to establish that he voluntarily

waived his rights as required by article 38.22 of the Code of Criminal Procedure. In Issue

Three, Appellant asserts that he was deprived of a fair trial because the trial court admitted his

invocation of the right to counsel.

Standard of Review

We review a trial court’s ruling on a motion to suppress using the bifurcated standard

articulated in Guzman v. State, 955 S.W.2d 85 (Tex.Crim.App. 1997). See Carmouche v.

State, 10 S.W.3d 323, 327 (Tex.Crim.App. 2000); Krug v. State, 86 S.W.3d 764, 765 (Tex.App.

– El Paso 2002, pet. ref’d). We do not engage in our own factual review because at a

suppression hearing, the trial judge is the sole trier of fact and judge of the credibility of the

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witnesses and the weight to be given to their testimony. See State v. Ross, 32 S.W.3d 853, 855

(Tex.Crim.App.2000); Romero v. State, 800 S.W.2d 539, 543 (Tex.Crim.App. 1990). We give

almost total deference to the trial court’s ruling on (1) questions of historical fact and (2)

application-of-law-to-fact questions that turn on an evaluation of credibility and demeanor.

Johnson v. State, 68 S.W.3d 644, 652–53 (Tex.Crim.App. 2002); Best v. State, 118 S.W.3d 857,

861-62 (Tex.App. – Fort Worth 2003, no pet.). We review de novo a trial court’s rulings on

mixed questions of law and fact if they do not turn on the credibility and demeanor of witnesses.

Johnson, 68 S.W.3d at 652–53. If the trial court’s ruling on the admissibility of a custodial

statement turns on an evaluation of credibility and demeanor, we are not at liberty to disturb any

finding which is supported by the record. See Dewberry v. State, 4 S.W.3d 735, 747-48

(Tex.Crim.App. 1999). Generally, we only consider the evidence adduced at the suppression

hearing; however, where, as here, the parties relitigate the suppression issue at the trial on the

merits, we consider all the evidence, from both the pretrial hearing and the trial, in our review of

the trial court’s ruling. See Gutierrez v. State, 221 S.W.3d 680, 687 (Tex.Crim.App. 2007).

Article 38.22

In Issue Two, Appellant argues that because the record before us is devoid of an express

waiver of Appellant’s rights, the State failed to establish that Appellant knowingly, intelligently,

and voluntarily waived his rights. Article 38.22 proscribes the admissibility of oral statements

made during custodial interrogation unless (1) those statements were recorded and (2) prior to

making the statements but during the recording, the accused was warned of his rights and

knowingly, intelligently, and voluntarily waived those rights. See TEX. CODE CRIM. PROC.

ANN. art. 38.22, § 3 (West 2005). Those warnings include that:

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 (1) [the accused] has the right to remain silent and not make any statement at all and that
any statement he makes may be used against him at his trial;

(2) any statement he makes may be used as evidence against him in court;

(3) he has the right to have a lawyer present to advise him prior to and during any
questioning;

(4) if he is unable to employ a lawyer, he has the right to have a lawyer appointed
to advise him prior to and during any questioning; and

(5) he has the right to terminate the interview at any time[.]

Id. at 38.22, § 2 (West 2005).

In Joseph v. State, the Court of Criminal Appeals reiterated ‘“that neither a written nor an

oral express waiver is required”’ before a statement is admissible under the mandates of article

38.22 of the Code of Criminal Procedure. 309 S.W.3d 20, 24 (Tex.Crim.App. 2010) (quoting

Watson v. State, 762 S.W.2d 591, 601 (Tex.Crim.App. 1988)); see Barefield v. State, 784 S.W.2d

38, 40-41 (Tex.Crim.App. 1989) (noting that the oral confession statute does not require an

“express verbal statement from an accused that he waives his rights prior to giving the

statement”), overruled on other grounds, Zimmerman v. State, 860 S.W.2d 89, 94

(Tex.Crim.App. 1993); State v. Oliver, 29 S.W.3d 190, 192 (Tex.App. – San Antonio 2000, pet.

ref’d) (noting that there is no “additional language . . . required before a trial court could infer the

defendant had waived his rights pursuant to art. 38.22”). Rather, that waiver may simply be

“‘inferred from the actions and words of the person interrogated.’” Joseph, 309 S.W.3d at 24-25

(quoting North Carolina v. Butler, 441 U.S. 369, 373, 99 S.Ct. 1755, 60 L.Ed.2d 286 (1979)).

But that waiver must still be knowingly, intelligently, and voluntarily made. Id. We look at

the totality of the circumstances in reaching the voluntariness of a confession. See Moran v.

Burbine, 475 U.S. 412, 421, 106 S.Ct. 1135, 89 L.Ed.2d 410 (1986); Barefield, 784 S.W.2d at

9
41. In reviewing the totality of the circumstances, we may consider the defendant’s

background, experience, and conduct. Joseph, 309 S.W.3d at 25 (citing Fare v. Michael C.,

442 U.S. 707, 725, 99 S.Ct. 2560, 61 L.Ed.2d 197 (1979)).

We are not persuaded by Appellant’s argument that in light of the absence of an express

waiver of his rights, the State failed to establish that Appellant knowingly, intelligently, and

voluntarily waived his rights because, as noted above, an explicit waiver of rights is not required.

See id. at 24; Oliver, 29 S.W.3d at 192. The record shows that Appellant read his Miranda

warnings aloud from a card on three different occasions. While at the police station, Appellant

agreed to give two recorded statements, and after reading his Miranda rights both times, he

indicated that he understood his rights. At the suppression hearing, Detective Hicks testified that

Appellant was not coerced or threatened into giving a statement and explained that after

Appellant read his rights, Appellant continued speaking with the detectives.5 At trial, Appellant

testified that he read and signed the Miranda warnings card, and told the detectives that he

understood his rights. However, he explained that he forgot to tell detectives that although he

understood what he was reading, “[it was not] sinking in.” Appellant also agreed that during

his first recorded statement, he told the detectives that he wanted to know what the allegation

against him was so that he could decide if he wanted to continue talking to them or if he wanted

to get a lawyer. Appellant continued talking to the detectives and later terminated that first

recorded interview by stating “if that’s the allegation, then, you know, I don’t have any other

choice but to talk to a lawyer. Get me a lawyer.” Detective Aguirre testified at both the

suppression hearing and trial that after the termination of the first recorded interview, Appellant

5
At trial, Detective Aguirre similarly testified that Appellant voluntarily agreed to give a recorded statement.
10
reinitiated contact with Detective Aguirre by motioning to him while Appellant was in the

holding cell and told him that he wanted to plead guilty to consensual sex.

In its findings of fact and conclusion as to voluntariness, the trial court found that:

Appellant read his rights aloud from a Miranda warning card while being transported to the

police station and again during the first and second interviews; after the detectives explained the

nature of the allegation to Appellant, Appellant answered all of the detectives’ questions; at the

end of the interview, Appellant invoked his right to counsel and all questioning ceased;

Appellant later reinitiated contact with Detective Aguirre, provided a second statement in which

he answered all of Detective Aguirre’s questions, and admitted that he engaged in consensual sex

with J.S. The trial court concluded that: (1) Appellant was under arrest and in custody when

Appellant gave the two recorded statements to police, (2) Appellant intentionally, knowingly,

and voluntarily waived his rights during the first and second statements, and (3) both statements

made by Appellant complied with the provisions of article 38.22 of the Code of Criminal

Procedure.

We conclude that the trial court’s findings are supported by the record. In applying the

appropriate standard of review to this case, we accord almost total deference to the trial court’s

determination regarding the credibility and demeanor of the witnesses. See Johnson, 68 S.W.3d

at 652-53; Best, 118 S.W.3d at 861-62; Oliver, 29 S.W.3d at 191. Looking at the totality of the

circumstances, we hold that the trial court did not err by concluding that Appellant knowingly,

intelligently, and voluntarily waived his rights under article 38.22. See Turner v. State, 252

S.W.3d 571, 583 (Tex.App. – Houston [14th Dist.] 2008, pet. ref’d) (concluding defendant’s

rights were validly waived where he indicated he understood his rights and proceeded to answer

11
questions); Hargrove v. State, 162 S.W.3d 313, 318-19 (Tex.App. – Fort Worth 2005, pet. ref’d)

(finding the defendant validly waived his rights despite a lack of explicit waiver); Oliver, 29

S.W.3d at 193 (defendant knowingly, intelligently, and voluntarily gave a statement, despite lack

of explicit waiver, where he indicated he understood his rights and proceeded to discuss details

of murder with police). Issue Two is overruled.

Invocation of Appellant’s Right to Counsel

In Issue Three, Appellant asserts that he was deprived of a fair trial because the trial court

admitted his invocation of the right to counsel.

Right to Counsel

Once a suspect invokes his right to counsel, interrogation must cease until counsel has

been provided, or the accused himself initiates further communication. Minnick v. Mississippi,

498 U.S. 146, 151-52, 111 S.Ct. 486, 112 L.Ed.2d 489 (1990); Edwards v. Arizona, 451 U.S.

477, 484-85, 101 S.Ct. 1880, 68 L.Ed.2d 378 (1981). A request for counsel must be

unambiguous, meaning the suspect must “articulate his desire to have counsel present

sufficiently clearly that a reasonable police officer in the circumstances would understand the

statement to be a request for an attorney.” Davis v. United States, 512 U.S. 452, 459, 114 S.Ct.

2350, 129 L.Ed.2d 362 (1994). Not every mention of a lawyer is sufficient to invoke one’s

Fifth Amendment right to counsel during an interrogation. State v. Gobert, 275 S.W.3d 888,

892 (Tex.Crim.App. 2009). If the suspect’s statement is not an unambiguous or unequivocal

request for counsel, the police officers do not have to seek clarification or much less stop

questioning the suspect. Id. Whether a suspect has unequivocally requested an attorney

depends on whether he expressed a definite desire to speak to someone, and that person be an

12
attorney. Dinkins v. State, 894 S.W.2d 330, 352 (Tex.Crim.App. 1995). When reviewing

alleged invocations of the right to counsel, we look at the totality of the circumstances

surrounding the interrogation, as well as the alleged invocation, to determine whether a suspect’s

statement can be construed as an actual invocation of his right to counsel. Dinkins, 894 S.W.2d

at 351; Castillo v. State, 742 S.W.2d 1, 4 (Tex.Crim.App. 1987).

The State cannot inform the jury that the accused invoked his constitutional rights

because the jury can improperly consider the invocation as an inference of guilt. Hardie v.

State, 807 S.W.2d 319, 322 (Tex.Crim.App. 1991). Nevertheless, where the suspect

subsequently waives his previously invoked right, there is no error. See Campbell v. State, No.

04-08-00193-CR, 2009 WL 2265472, at *4 (Tex.App. – San Antonio July 29, 2009, pet. ref’d)

(mem. op.) (not designated for publication) (holding trial court did not err by admitting

appellant’s recorded statement which included his initial invocation of the right to counsel where

he later waived that right).

We first review the record to determine whether Appellant’s comments were a clear and

unequivocal invocation of his right to counsel. The record demonstrates that prior to

Appellant’s interrogation by Detectives Hicks and Aguirre, Appellant spoke to his spouse on his

cell phone in the presence of the detectives. During this time, the recording system in the

interview room was turned on and Appellant’s cell phone conversation was recorded. While

on the phone, Appellant asked his spouse to get information about legal prepay. After

Appellant hung up the call, he commented: “Let me see if we can get a lawyer or something,

because I don’t like the way this is going.” Afterwards, Appellant’s cell phone rang and

Appellant then asked his spouse to call the lawyer. The detectives commenced the interview by

13
having Appellant read a Miranda warning card aloud and asking him if he understood his rights.

Appellant indicated that he understood his rights. At the suppression hearing, Detective Hicks

testified that when she and Detective Aguirre first walked into the interview room, Appellant

was on the phone and that was when he first mentioned an attorney. Appellant did not request

an attorney at that time. According to Detective Hicks, Appellant did not invoke his right to

counsel until the very end of the first recorded statement. On cross-examination, Detective

Hicks stated that she heard Appellant make the “Let me see” statement, but explained that she

did not consider that to be a request for an attorney. She stated that if Appellant had requested

an attorney at that time, they would have stopped the interview. She further explained that

Appellant did not request an attorney, but mentioned trying to obtain one.

At trial, on cross-examination, Detective Aguirre maintained that Appellant was not

trying to obtain an attorney when he made the “Let me see” comment. He clarified that

Appellant’s statement was not directed to them, but rather Appellant was questioning himself as

to whether he should get an attorney.

The State argues that the trial court did not err in admitting the statements Appellant

made during his telephone conversation with his spouse because those statements did not

constitute a clear and unequivocal invocation of his right to counsel. We agree. In Dalton v.

State, the Austin Court of Appeals concluded that the appellant’s statement to the police officer to

ask or tell his friends to get him a lawyer was not an invocation of the right to counsel. 248

S.W.3d 866, 873 (Tex.App. – Austin 2008, pet. ref’d), cert. denied, 130 S.Ct. 555, 175 L.Ed.2d

386 (2009). The Dalton court held that, at most, the appellant’s statement was an “equivocal and

ambiguous statement that he might want the services of an attorney at some point.” Id. Like

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Dalton, Appellant’s “Let me see” statement is not an unequivocal and unambiguous invocation of

his right to counsel, but, at most, recounted Appellant’s telephone conversation and indicated that

he wanted to see if he could get an attorney at some point. See id. After Appellant made the

statement, he answered his cell phone and asked his spouse to call the lawyer. Appellant then

read his Miranda rights, indicated he understood them, and told the detectives that he wanted to

know what the allegations were before deciding whether he wanted to get an attorney. In the

context presented, Appellant’s statement was ambiguous and equivocal and would not reasonably

have been construed as a request for an attorney. See Davis, 512 U.S. at 459, 462 (holding

suspect’s statement, “Maybe I should talk to a lawyer,” was not a request for an attorney);

Huckaby v. State, No. 2-01-301-CR, 2003 WL 21235588, at *5 (Tex.App. – Fort Worth May 29,

2003, pet. ref’d) (not designated for publication) (concluding that the phrase “I will call my

attorney” after appellant agreed to be photographed “was more an after-the-fact expression” of

appellant’s discomfort with being photographed and his desire not to speak further with police

than an invocation of the right to an attorney).

A review of the totality of the circumstances surrounding the interrogation, the telephone

conversation between Appellant and his spouse, and the comments Appellant made, indicate that

Appellant did not clearly and unambiguously invoke his right to counsel. See Dinkins, 894

S.W.2d at 351.

Appellant also argues that the invocation of his right to counsel at the beginning of the

first recorded statement and at the end of that same recording, were tantamount to post-arrest

silence and that the admission of those recorded statements in evidence violated his due process

rights. In Garcia v. State, the defendant argued that the trial court abused its discretion by

15
overruling his objection to the State’s comments on his right to remain silence in violation of his

Fifth Amendment right. 126 S.W.3d 921, 923-24 (Tex.Crim.App. 2004). The Court of

Criminal Appeals rejected defendant’s argument as “nonsensical” because he had “waived his

post-arrest right to silence when he agreed to give a written statement to police after being

warned of his constitutional rights.” Id. at 924. In other words, a defendant’s post-arrest

silence cannot improperly be commented upon when defendant did not remain silent. Salazar

v. State, 131 S.W.3d 210, 215 (Tex.App. – Fort Worth 2004, pet. ref’d).

Appellant’s argument is based on the premise that he remained silent after invoking his

constitutional rights. However, Appellant does not dispute that he voluntarily reinitiated

contact with Detective Aguirre after he terminated the first interview. Because Appellant

waived his rights by reinitiating contact with Detective Aguirre, the complained-of statements by

Appellant were not tantamount to post-arrest silence. See Garcia, 126 S.W.3d at 924; Salazar,

131 S.W.3d at 215. The trial court’s finding that following Appellant’s invocation of his right

to counsel at the end of the first recorded statement, Appellant reinitiated contact with Detective

Aguirre and agreed to give a second recorded statement is supported by the record.

Accordingly, we conclude that (1) Appellant did not clearly and unambiguously invoke the right

to counsel at the beginning of the recorded statement, and (2) he later waived that right by

reinitiating contact with Detective Aguirre. Thus, the trial court did not abuse its discretion in

admitting Appellant’s recorded statements. See Torres v. State, 71 S.W.3d 758, 760

(Tex.Crim.App. 2002) (we review trial court’s decision to admit or exclude evidence for abuse

of discretion); Campbell, 2009 WL 2265472, at *4. Issue Three is overruled.

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 REFORMATION

Finally, we note that the written judgment incorrectly indicates that Appellant pleaded

“guilty” to charged offense. However, the record reflects that Appellant entered a plea of “not

guilty” at trial. We have the authority to reform a judgment to make the record speak the truth

when the matter has been called to its attention by any source. See TEX. R. APP. P. 43.2(b);

French v. State, 830 S.W.2d 607, 609 (Tex. Crim. App. 1992). Further, we may act sua sponte

to reform an incorrect judgment and may have a duty to do so. Asberry v. State, 813 S.W.2d

526, 530 (Tex.App. – Dallas 1991, pet. ref’d); see French, 830 S.W.2d at 609. Accordingly, we

reform the judgment to reflect Appellant’s plea of “not guilty” to the charged offense.

CONCLUSION

Having overruled Appellant’s issues, we affirm the trial court’s judgment as reformed.

GUADALUPE RIVERA, Justice
September 11, 2013

Before McClure, C.J., Rivera, and Antcliff, JJ.
Antcliff, J., not participating

(Do Not Publish)

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