OPINION
No. 04-11-00420-CR
Ricardo L. HERNANDEZ,
Appellant
v.
The STATE of Texas,
Appellee
From the 399th Judicial District Court, Bexar County, Texas
Trial Court No. 2009CR7940
Honorable Laura Parker, Judge Presiding
Opinion by: Catherine Stone, Chief Justice
Sitting: Catherine Stone, Chief Justice
Karen Angelini, Justice
Marialyn Barnard, Justice
Delivered and Filed: November 14, 2012
AFFIRMED
Ricardo Hernandez was convicted by a jury of capital murder and was sentenced to life in
prison without parole. On appeal, Hernandez challenges the admission of his confession,
asserting that he did not voluntarily, knowingly, and intelligently waive his rights under Article
38.22 of the Texas Code of Criminal Procedure and Miranda v. Arizona. Additionally,
Hernandez contends that the trial court erred in reading back to the jury portions of testimony,
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claiming no dispute existed as is required under Article 36.28 of the Texas Code of Criminal
Procedure. We overrule Hernandez’s challenges and affirm the trial court’s judgment.
BACKGROUND
On April 25, 2009, the Bexar County Sheriff’s Department was dispatched to a shooting
that occurred at a trailer park in Northwest San Antonio. The victim of the shooting, Glen
Butler, was taken to the hospital and died shortly thereafter. Detective David Davila was the
lead investigator assigned to the case. After arriving at the scene, Detective Davila spoke with
Charlie and Dewayne Jones, the men with whom Butler resided. The brothers told police that
three intruders forcibly entered their residence, and they identified Ricardo Hernandez as one of
the intruders. The Joneses also told officers Hernandez lived nearby in the trailer park and was
driving a white car when he fled the scene.
After speaking with Hernandez’s girlfriend’s mother, with whom Hernandez lived,
Detective Davila temporarily left the trailer park to locate the home of Hernandez’s mother.
Shortly thereafter, Hernandez and his girlfriend returned to the trailer park, and Hernandez was
taken into custody by other officers. Upon Detective Davila’s return to the trailer park,
Detective Davila was informed that Hernandez had already received Miranda warnings.
Nevertheless, Detective Davila had Hernandez Mirandized again in his presence. After
providing a statement at the crime scene, Hernandez was taken to the police station to have his
statement recorded.
Upon arrival at the Sheriff’s Department, but before taking Hernandez’s recorded
statement, Detective Davila gave Hernandez the warnings required by Article 38.22 of the Code
of Criminal Procedure. Hernandez orally acknowledged understanding each warning
individually and initialed next to each warning on a written copy he was provided. He then
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signed the written document entitled “Miranda,” certifying that he understood his rights and the
consequences of waiving such rights.
Prior to trial, Hernandez filed a “Motion to Suppress Written or Oral Statements of the
Defendant,” seeking suppression of the oral statements made by Hernandez to Detective Davila
during the interview at the Sheriff’s Department. Hernandez’s motion to suppress claimed,
among other things, that his confession was involuntary and taken in violation of the Fifth
Amendment of the United States Constitution and Article 38.22 of the Texas Code of Criminal
Procedure. The trial court held a hearing and denied Hernandez’s motion. Detective Davila was
the sole witness to testify at the suppression hearing.
ADMISSIBILITY OF THE STATEMENT
Hernandez does not dispute that proper warnings were given in accordance with Article
38.22 of the Code of Criminal Procedure and Miranda, nor does he contend that such warnings
were not understood. TEX. CODE CRIM. PROC. ANN. art. 38.22 (West 2005); Miranda v. Arizona,
384 U.S. 436 (1966). Instead, Hernandez claims he did not knowingly, intelligently, and
voluntarily waive his rights.
A. Standard of Review
An appellate court reviews the ruling on a motion to suppress under a bifurcated
standard. Carmouche v. State, 10 S.W.3d 323, 327 (Tex. Crim. App. 2000); Hodson v. State,
350 S.W.3d 169, 173 (Tex. App.—San Antonio 2011, pet ref’d). We defer to the trial court’s
determinations on historical facts and credibility, but we review de novo questions of law and
mixed questions of law and fact not turning on credibility assessments. Leza v. State, 351
S.W.3d 344, 349 (Tex. Crim. App. 2011); Carmouche, 10 S.W.3d at 327. Viewing the evidence
in the light most favorable to the trial court’s ruling, we will uphold the ruling if it is correct
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under any theory of law applicable to the case. Gonzales v. State, 369 S.W.3d 851, 854 (Tex.
Crim. App. 2012); State v. Iduarte, 268 S.W.3d 544, 548 (Tex. Crim. App. 2008).
B. Waiver
The State bears the burden of establishing a knowing, intelligent, and voluntary waiver of
one’s rights under Miranda and Article 38.22. Miranda, 384 U.S. 436; Leza, 351 S.W.3d at 349,
351; Joseph v. State, 309 S.W.3d 20, 24 (Tex. Crim. App. 2010). Waiver must be proven by a
preponderance of the evidence. Miranda, 384 U.S. 436; Leza, 351 S.W.3d at 349, 351; Joseph,
309 S.W.3d at 24. Without a valid waiver, a defendant’s statement is generally inadmissible.
TEX. CODE CRIM. PROC. ANN. art. 38.22 § 3(a); Berghuis v. Thompkins, 130 S. Ct. 2250, 2260
(2010); Joseph, 309 S.W.3d at 24. In determining whether there was a valid waiver of
Hernandez’s rights we must look to the totality of the circumstances, “including the background,
experience, and conduct of the accused.” North Carolina v. Butler, 441 U.S. 369, 374–75
(1979); see Leza, 351 S.W.3d at 349, 352–53; Joseph, 309 S.W.3d at 25.
A waiver can be expressly made or implied by the accused’s conduct. Berghuis, 130 S.
Ct. at 2261; Joseph, 309 S.W.3d at 24. An implied waiver of one’s rights is established upon a
showing that the accused: (1) was given the proper warnings; (2) understood the warnings and
their consequences; and (3) made an uncoerced statement. Berghuis, 130 S. Ct. at 2260–62; see
Moran v. Burbine, 475 U.S. 412, 422–23 (1986); Leza, 351 S.W.3d at 349. “As a general
proposition, the law can presume that an individual who, with a full understanding of his or her
rights, acts in a manner inconsistent with their exercise has made a deliberate choice to relinquish
the protection those rights afford.” Berghuis, 130 S. Ct. at 2262.
While it is true that a waiver cannot be presumed from an accused’s silence or the fact
that a confession was made after warnings were provided, “the general rule is that neither a
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written nor an oral express waiver is required.” Watson v. State, 762 S.W.2d 591, 601 (Tex.
Crim. App. 1988) (en banc). Simply making a statement is often the kind of conduct viewed as
indicative of one’s intention to waive her rights. See Berghuis, 130 S. Ct. at 2262; Leza, 351
S.W.3d at 348; Joseph, 309 S.W.3d at 25 n.7. This relatively low threshold for establishing
waiver is because “[t]he main purpose of Miranda is to ensure that an accused is advised of and
understands the right to remain silent and the right to counsel.” Berghuis, 130 S. Ct. at 2261
(emphasis added).
Much like the appellant in Joseph v. State, Hernandez willingly shared his version of the
events with Detective Davila immediately after receiving and acknowledging his understanding
of the warnings. Joseph, 309 S.W.3d at 26. At no time did Hernandez ask to stop the interview
or ask for counsel. Furthermore, Hernandez makes no allegations of coercion, nor does he
dispute Detective Davila’s statement that he was given Miranda warnings three times.
Additionally, there is no contention that Hernandez did not understand the warnings. In fact,
when Hernandez was taken to the police station and read the warnings mandated by Article
38.22—which substantively include all of the Miranda warnings—he verbally acknowledged
understanding each one, contemporaneously initialing next to each warning on a written
document. Hernandez was also given an opportunity to ask any questions he may have had.
After signing the warnings at the police station, Hernandez essentially provided a narrative with
very few interruptions by Detective Davila. The lack of poignant questioning by Detective
Davila coupled with Hernandez’s prolonged statement indicates an intention to voluntarily waive
his rights. Moreover, Hernandez had already made multiple statements to officers prior to
arriving at the Sheriff’s Department but subsequent to receiving Miranda warnings, evidencing
his willingness to speak with the police.
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The recording does show Hernandez asking questions about whether he had been charged
and whether he had to write a statement. However, Detective Davila immediately clarified that
he did not have to make a statement and that he was charged with unlawfully entering the
residence where Butler lived. In addition, before proceeding, Detective Davila asked several
times whether Hernandez was willing to continue the interview.
Hernandez: Umm, I was gonna say, umm, if I’m already charged then what am I
doing here? You know, and honestly, if I have to write a statement like it said . . .
Detective Davila: No, you don’t have to write a statement. No sir, no. This is,
you know, you’re going to be interviewed, you know, as I told you, you know.
This is a right you have; you can refuse to be interviewed. You know, I just want
to hear your part, like you told me out there. Okay, that’s all, what happened
tonight. Are you okay with that?”
Hernandez: Well yeah, I was kind of okay, but honestly, if . . . the whole thing I
don’t understand is why did I get charged then? If I’m just here doing a
statement, then why am I charged?
Detective Davila: Okay, you’re charged with where you went to the house.
Okay?
Hernandez: Yes, sir.
Detective Davila: And from what witnesses said. I want to hear your part. This
is the time you get the chance to tell me your part [of] what happened today. Are
you willing to do that?
Hernandez: Yeah. [nodding head]
Hernandez then began his statement, which was almost entirely free of questioning or
interruptions. Although the recording of the interview shows Hernandez was possibly uncertain
about the charge for which he was being held, the United States Supreme Court and the Court of
Criminal Appeals have concluded that statements will not be deemed involuntary merely because
questioning is based on a crime different than that for which the suspect has been arrested.
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Colorado v. Spring, 479 U.S. 564, 577 (1987); Leza, 351 S.W.3d at 350, 352 (emphasizing that
officers warned the appellant that anything he said could be used against him).
Hernandez points out that subsection 3(e) of Article 38.22 requires subsection 3(a) to be
strictly construed and alleges that the finding of an implied waiver of the rights set forth in
Article 38.22 is in contravention of this mandate. See TEX. CODE CRIM. PROC. ANN. art. 38.22
§ 3(a), (e). Such an interpretation would effectively require an express waiver, which has been
consistently rejected by the United States Supreme Court and the Court of Criminal Appeals.
Berghuis, 130 S. Ct. at 2261; Butler, 441 U.S. at 374–75; Joseph, 309 S.W.3d at 24; Watson, 762
S.W.2d at 601. Although implied waivers are not preferred under Texas law, a trial court does
not abuse its discretion when an implied waiver finding is supported by the totality of the
circumstances. Leza, 351 S.W.3d at 353; Joseph, 309 S.W.3d at 29–30 (Cochran, J.,
concurring); Watson, 762 S.W.2d at 601.
After considering the totality of the circumstances, we hold that the trial court did not
abuse its discretion in finding a voluntary, knowing, and intelligent waiver under Miranda and
Article 38.22.
C. Findings of Fact and Conclusions of Law
Hernandez briefly argues that the trial court’s findings of fact and conclusions of law are
insufficient under section 6 of Article 38.22 because the trial court did not make a specific
finding that Hernandez waived his rights. Section 6 of Article 38.22 requires a trial judge,
outside the presence of the jury, to state its conclusions about whether a statement was
voluntarily made and to put its specific findings of fact on the record. TEX. CODE CRIM. PROC.
ANN. art. 38.22 § 6. In this case, the trial court made the following conclusion of law and
finding of fact: “Then I’m going to deny the motion, and find that the State has complied with
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38.22 with regard to the statement contained in the DVD.” No objection or request for greater
specificity was made.
Hernandez did not assert this complaint as a separate point of error but, instead, makes
reference to the absence of a specific finding when arguing he did not knowingly, intelligently,
and voluntarily waive his rights. Moreover, Hernandez does not ask this court to abate the
appeal to obtain a specific finding. Texas Rule of Appellate Procedure 38.9, however, requires
briefing rules to be liberally construed to include review of subsidiary issues that can be fairly
included, even when they are not specifically raised as points of error. TEX. R. APP. P. 38.9.
Whether an appellate court must always abate and remand in the absence of sufficiently
specific findings of fact is an evolving area of the law that has drawn several dissents and has
caused disagreement among the courts. Most recent case law holds that making specific findings
of fact is mandatory, regardless of whether there was a request or objection at the trial court, and
abatement and remand is necessary when such is not done. See, e.g., Urias v. State, 155 S.W.3d
141, 142 (Tex. Crim. App. 2004) (en banc); Wicker v. State, 740 S.W.2d 779, 783 (Tex. Crim.
App. 1987) (en banc), cert. denied, 485 U.S. 938 (1988); Hester v. State, 535 S.W.2d 354, 356
(Tex. Crim. App. 1976); Vasquez v. State, 179 S.W.3d 646, 654–55 (Tex. App.—Austin 2005),
aff’d on other grounds, 225 S.W.3d 541. Because the mandatory nature of the statute
contravenes the basic rules of preservation, compare TEX. R. APP. P. 33.1 (requiring an issue to
have been timely and specifically raised in the trial court in order to complain on appeal), with
Urias, 155 S.W.3d at 142 (reaffirming that Article 38.22 § 6 is mandatory whether or not the
defendant objects), the waiver of rights issue is difficult and has caused criticism that the
statutory command is being treated as fundamental error. See Urias, 155 S.W.3d at 143 (Keller,
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P.J., dissenting from denial of reh.) (acknowledging the uncertainty of the law and suggesting
more guidance be given as to whether this is one of the few errors that is not forfeitable).
On the other hand, there is also some support for the proposition that there must be a
disputed fact issue and evidence presented on that issue in order for an abatement and remand to
be necessary. See Jackson v. Denno, 378 U.S. 368, 391 (1964); Quinn v. State, 558 S.W.2d 10,
11–12 (Tex. Crim. App. 1977); McKittrick v. State, 535 S.W.2d 873, 876 (Tex. Crim. App.
1976); Hester, 535 S.W.2d at 356; Miller v. State, 666 S.W.2d 269, 274 (Tex. App.—Dallas
1984, pet. ref’d). The facts in this case are not disputed. The point in dispute is whether a
waiver could be implied under these facts. Since this is an issue involving a mixed question of
law and fact that we review de novo, we conclude that a more specific finding by the trial court
is not necessary in this case. Our conclusion is further supported by the underlying purposes of
the statute, which are to ensure that a trial judge does not make a baseless ruling admitting an
involuntary confession and to provide reviewing courts with the basis for the ruling, the latter of
which is particularly important when the ruling could hinge on a disputed issue of fact. Hester,
535 S.W.2d at 356; Kellison v. State, No. 05-06-01117-CR, 2008 WL 44424, at *6 (Tex. App.—
Dallas Jan. 3, 2008, no pet.) (not designated for publication).
APPROPRIATENESS OF READING BACK TESTIMONY TO THE JURY
A. Standard of Review
A trial judge’s determination about whether a disagreement exists among the jury, which
determines whether testimony can be read back, is reviewed for an abuse of discretion. Howell
v. State, 175 S.W.3d 786, 790 (Tex. Crim. App. 2005); Robison v. State, 888 S.W.2d 473, 480
(Tex. Crim. App. 1994) (en banc). A trial court abuses its discretion when its ruling is so
arbitrary it is outside the zone of reasonable disagreement. Howell, 175 S.W.3d at 790.
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B. Article 36.28 of the Texas Code of Criminal Procedure
Article 36.28 of the Texas Code of Criminal Procedure provides that a witness’s
testimony may be read back to a deliberating jury only “if the jury disagree[s] as to the statement
of any witness.” TEX. CODE CRIM. PROC. ANN. art. 36.28 (West 2006). Moreover, only “that
part of such witness testimony or the particular point in dispute, and no other,” may be read back
to the jury. Id. A jury’s request for a witness’s testimony must implicitly or explicitly reflect
disagreement about a particular point in the testimony. Howell, 175 S.W.3d at 790. “A simple
request for testimony does not, by itself, reflect disagreement, implicit or express, and is not a
proper request under Article 36.28.” Id. However, where an initial request does not indicate
whether a dispute exists, the trial judge should communicate with and provide additional
instruction to the jury. Id.; Hernandez v. State, No. 04-05-00262-CR, 2006 WL 1539497, at *1
(Tex. App.—San Antonio June 7, 2006, no pet.) (mem. op., not designated for publication).
During deliberations, the jury made inquiries about several matters. One such inquiry
was a request “to see the transcript of Charlie Jones’[s] testimony regarding his confrontation of
the intruders at the front door of the trailer.” In response, the trial court sent a note, in part,
tracking the language of Article 36.28:
In the trial of a criminal case in a court of record, if the jury disagree[s] as to the
statement of any witness they may, upon applying to the court, have read to them
from the court reporter's notes that part of such witness testimony or the particular
point in dispute[,] and no other.
Do you have a dispute regarding a certain point of Charlie Jones’[s] testimony? If
yes, what point is in dispute?
The presiding juror then responded: “Whether Charlie Jones identified Ricardo L. Hernandez as
one of the intruders.” Hernandez asserts that “[t]he note does not reflect a dispute among the
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members of the jury; it merely reflects a collective failure to recall whether certain testimony
was presented on the issue of whether [Hernandez] was identified by the witness, Charles Jones.”
In Howell v. State, the Court of Criminal Appeals distinguished between a case where
“[t]the trial court made no affirmative effort to determine if there was a dispute about the
requested testimony,” simply reading back the testimony because it was requested, and a case
where the trial court communicated with the jury several times and “clearly informed the jury
that testimony would be read back only in the event of a dispute.” Howell, 175 S.W.3d at 791
(quoting Robison, 888 S.W.2d at 480) (internal quotation marks omitted); Moore v. State, 874
S.W.2d 671 (Tex. Crim. App. 1994). The case at hand is akin to the latter. In this case, the trial
judge did not allow the testimony to be read back upon the jury’s initial request; instead, the
court provided the statutory language informing the jury that there must be a disagreement and
asked whether a specific dispute existed. The presiding juror responded with the particular point
in the testimony about which the jurors could not agree.
Therefore, the trial court did not abuse its discretion in allowing Jones’s testimony to be
read back to the jury.
CONCLUSION
Because Hernandez’s confession was voluntarily made and because the jury provided a
specific part of the testimony in dispute, we overrule Hernandez’s points of error and affirm the
judgment of the trial court.
Catherine Stone, Chief Justice
PUBLISH
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Ricardo L. Hernandez v. State
Combined Opinion