PD-0078-15
COURT OF CRIMINAL APPEALS
AUSTIN, TEXAS
Transmitted 5/12/2015 1:03:05 PM
Accepted 5/12/2015 2:19:17 PM
May 12, 2015 No. PD-0078-15 ABEL ACOSTA
CLERK
In the
Court of Criminal Appeals
No. 14-12-00096-CR
In the Court of Appeals for the Fourteenth District of Texas at Houston
No. 1333231
th
In the 228 District Court of Harris County, Texas
JOSE VASQUEZ
Appellant
V.
THE STATE OF TEXAS
Appellee
STATE’S BRIEF ON DISCRETIONARY REVIEW
DEVON ANDERSON
District Attorney
Harris County, Texas
ERIC KUGLER
Assistant District Attorney
Harris County, Texas
TBC No. 796910
kugler_eric@dao.hctx.net
1201 Franklin, Suite 600
Houston, Texas 77002
Tel.: 713-755-5826
FAX: 713-755-5809
Counsel for Appellee
ORAL ARGUMENT PERMITTED
STATEMENT REGARDING ORAL ARGUMENT
This Court has permitted oral argument in this case.
IDENTIFICATION OF THE PARTIES
Counsel for the State:
Devon Anderson District Attorney of Harris County
Eric Kugler Assistant District Attorney on appeal
Eric Devlin Assistant District Attorney at trial
Appellant or criminal defendant:
Jose Vasquez
Counsel for Appellant:
Mark Kratovil Assistant Public Defender on appeal
James Stafford; Marcy Kurtz Counsel at trial
Trial Judge:
Hon. Marc Carter Presiding Judge
TABLE OF CONTENTS
STATEMENT REGARDING ORAL ARGUMENT ................................................. 1
IDENTIFICATION OF THE PARTIES .................................................................... 1
INDEX OF AUTHORITIES ...................................................................................... 3
STATEMENT OF THE CASE................................................................................... 5
ISSUES PRESENTED............................................................................................... 6
A. The lower court’s majority opinion erred in holding that the appellant
preserved his two-step interrogation complaint for appellate review. ...................6
B. The lower court’s majority opinion erred in holding that the appellant was
subject to custodial interrogation prior to receiving and waiving his legal rights. 6
C. The lower court’s majority opinion erred in holding that a two-step
interrogation technique was deliberately employed by the police. ........................6
D. The lower court’s majority opinion erred in holding that the appellant was
harmed by the admission of his statement when there was overwhelming
evidence of the appellant’s guilt independent of his statement to the police. ........6
STATEMENT OF FACTS ......................................................................................... 6
SUMMARY OF THE ARGUMENT ....................................................................... 11
ARGUMENT ........................................................................................................... 11
PRAYER .................................................................................................................. 25
CERTIFICATE OF SERVICE AND COMPLIANCE............................................. 26
2
INDEX OF AUTHORITIES
CASES
Barfield v. State,
416 S.W.3d 743 (Tex. App.—
Houston [14th Dist.] 2013, no pet.)......................................................................14
Batiste v. State,
AP-76,600, 2013 WL 2424134 (Tex. Crim. App. June 5, 2013)
cert. denied, 134 S. Ct. 1000 (U.S. 2014) ..................................................... 14, 18
Carmouche v. State,
10 S.W.3d 323 (Tex. Crim. App. 2000)................................................................19
Carter v. State,
309 S.W.3d 31 (Tex. Crim. App. 2010)................................................... 14, 21, 22
Manzi v. State,
88 S.W.3d 240 (Tex. Crim. App. 2002)................................................................20
Maxwell v. State,
73 S.W.3d 278 (Tex. Crim. App. 2002)................................................................19
Missouri v. Seibert,
542 U.S. 600 (2004) .............................................................................................14
Nguyen v. State,
292 S.W.3d 671 (Tex. Crim. App. 2009) ..............................................................15
Oregon v. Elstad,
470 U.S. 298 (1985) .............................................................................................21
People v. Delatorre,
B230591, 2012 WL 909659 (Cal. Ct. App. Mar. 19, 2012) .................................23
Phillips v. Bramlett,
288 S.W.3d 876 (Tex. 2009).................................................................................17
Resendez v. State,
256 S.W.3d 315 (Tex. App.—
Houston [14th Dist.] 2007)...................................................................................16
3
State v. Hughes,
272 S.W.3d 246 (Mo. Ct. App. 2008) ..................................................................23
Vasquez v. State,
397 S.W.3d 850 (Tex. App.—
Houston [14th Dist.] March 28, 2013, pet. granted) ..............................................5
Vasquez v. State,
411 S.W.3d 918 (Tex. Crim. App. 2013) ................................................................5
Vasquez v. State,
453 S.W.3d 555 (Tex. App.—
Houston [14th Dist.] 2014, pet. granted)............................................. 5, 14, 19, 22
STATUTES
TEX. CODE CRIM. PROC. art. 38.22 §3 (West 2010) .......................................... 15, 16
RULES
TEX. R. APP. P. 33.1(a) ....................................................................................... 17, 18
4
TO THE HONORABLE COURT OF CRIMINAL APPEALS OF TEXAS:
STATEMENT OF THE CASE
The appellant was charged with the capital murder of Suu Nguyen and
Aleksander Lobos (CR – 2). He pled “not guilty” to the charge, and the case was
tried to a jury (CR – 159). The jury found the appellant guilty, and the court
thereafter assessed punishment at life in prison (CR – 159). The appellant
appealed, and the court of appeals reversed the conviction, finding that the
appellant’s statement to the police was the result of a two-step interrogation and
that he was harmed by the admission of that statement. Vasquez v. State, 397
S.W.3d 850 (Tex. App.—Houston [14th Dist.] March 28, 2013, pet. granted). This
Court vacated and remanded for the trial court to make factual findings. Vasquez v.
State, 411 S.W.3d 918 (Tex. Crim. App. 2013). After the trial court made findings
supporting the admission of the statement, the court of appeals again reversed the
conviction in a published case over a strong dissent. Vasquez v. State, 453 S.W.3d
555 (Tex. App.—Houston [14th Dist.] 2014, pet. granted). This Court granted
review.
5
ISSUES PRESENTED
A. The lower court’s majority opinion erred in holding that the
appellant preserved his two-step interrogation complaint
for appellate review.
B. The lower court’s majority opinion erred in holding that the
appellant was subject to custodial interrogation prior to
receiving and waiving his legal rights.
C. The lower court’s majority opinion erred in holding that a
two-step interrogation technique was deliberately employed
by the police.
D. The lower court’s majority opinion erred in holding that the
appellant was harmed by the admission of his statement
when there was overwhelming evidence of the appellant’s
guilt independent of his statement to the police.
STATEMENT OF FACTS
Walter Gallo was a security guard from Miami; but he was working in
Houston in 2010 (RR. III – 188-189). One of his friends from high school was
Luis Ollevera (RR. III – 191, 257-258). Another friend was Walter Martinez,
whom Gallo had met through his boss, Martinez’s mother (RR. III – 192-193).
The appellant was a very close friend of Martinez (RR. IV – 35).
On April 1, 2010, Gallo and Ollevera wanted some marijuana, so Gallo
called Martinez in order to get one pound of “hydro,” a higher-quality type of
marijuana (RR. III – 193-195, 263-264). Martinez apparently set up a meeting
with Suu Nguyen and Aleksander Lobos to acquire the marijuana (St. Ex. 150).
6
Nguyen drove a Toyota Scion, and Lobos owned an Infiniti G35 (RR. IV – 32) (St.
Ex. 77).
When Martinez went to meet Nguyen and Lobos, the appellant and some
other friends accompanied him (St. Ex. 150). There were two cars parked on the
street at the meeting place on Carvel Lane, Lobos’s Infiniti and Nguyen’s Scion;
both Nguyen and Lobos were sitting in the Scion (St. Ex. 59-78, 150). The
appellant was carrying a revolver in his waistband (St. Ex. 150). At some point
during the transaction, the appellant pulled out his revolver, pushed open the
Scion’s door, and shot both Nguyen and Lobos (St. Ex. 150) (RR. V – 52). The
appellant was not sure whether he emptied the gun or not (St. Ex. 150) (RR. V –
52). The appellant or his accomplices then stole the marijuana and the Infiniti G35
(RR. III – 224, 269-270) (RR. V – 52, 55) (St. Ex. 35-38).
Lobos sustained two gunshot wounds (St. Ex. 108) (RR. IV – 156). The first
bullet entered near the base of his skull, caused extensive disruption and
hemorrhaging to his brain, and exited through the top of his forehead (St. Ex. 108)
(RR. IV – 58, 157-160). The second bullet entered on the upper right side of his
chest, perforated his right clavicle, right lung, and left rib, and caused bleeding
around his heart (St. Ex. 108) (RR. IV – 163-165). One bullet also grazed his right
hand (St. Ex. 108) (RR. IV – 165). No drugs were detected in his system (St. Ex.
108). Nguyen suffered two gunshot wounds (St. Ex. 109). One was to the back of
7
his head; the bullet sent a cone of bone fragments through his brain (St. Ex. 109)
(RR. IV – 138-142). The gun was fired anywhere from two inches to four feet
from Nguyen’s head (RR. IV – 142-144). The second bullet went through his right
shoulder blade, perforated his right lung, fractured his third rib, and was lodged in
his pericardial sac (St. Ex. 109) (RR. IV – 145-147). There was a small amount of
cocaine metabolite in Nguyen’s blood, but it would not have been affecting his
behavior at the time of the murder (RR. IV – 183).
Joe Christie lived near the intersection of Baneway and Carvel Lane (RR. III
– 161). When he heard the gunshots, he rolled off his bed, grabbed his AR-15
assault rifle, and headed outside to provide assistance (RR. III – 162-163). When
he got outside, he saw a Toyota Scion parked at the end of the block with its hazard
lights on (RR. III – 164, 301-303). He also saw a man stumbling toward the bayou
(RR. III – 164). Christie jumped in his pickup truck and drove down to the Scion
(RR. III – 165). He noticed that the vehicle had been shot up with bullets and that
there were two dead bodies inside, so he drove back home to call 911 (RR. III –
165-166). On the way back to his house, Christie saw a number of people running
on the street and trying to hide underneath cars that were parked in driveways (RR.
III – 167-168). The people ran into Martinez’s house on Carvel Lane (RR. III –
168-169) (St. Ex. 6). Christie saw there was an Infiniti G35 parked in the
driveway, and the garage door was open (RR. III – 169).
8
After the shooting, the appellant ran down along the bayou, pulled out the
gun, and threw it away (St. Ex. 150). He then allegedly took a turn on Boone
Street, ran to a gas station, and called a friend (St. Ex. 150). Meanwhile, Martinez
told Gallo to be at his house off of the bayou on Carvel Lane at around 11:00 p.m.
that evening (RR. III – 199, 262, 264). He also told Gallo to enter the house
through the back yard (RR. III – 201-202, 265).
Gallo and Ollevera entered Martinez’s house through the back door as
instructed, and they saw about ten guys, including the appellant, who appeared to
be “hyped up,” jumpy, and celebrating (RR. III – 204-205, 211, 219, 261, 266-267,
305). The appellant stated that he had shot and killed two people for a bag of weed
(RR. III – 205, 214, 268) (RR. IV – 34-35). The appellant was holding a bag of
marijuana, and he showed it to Gallo (RR. III – 211, 223, 269). Gallo stated,
“Y’all murdered these people for that, for that bag?” (RR. III – 225). But Gallo
also saw the Infiniti G35 inside the garage and learned that the car had been taken
during the murders (RR. III – 224, 269-270) (St. Ex. 35-38). The appellant did not
appear to be remorseful over the killings (RR. III – 272).
Darren Chippi with the Houston Police Department was dispatched to the
scene after Christie called 911 (RR. III – 300). He saw that Nguyen and Lobos
were lying dead in the Scion and talked to Christie about what he had seen (RR. III
– 301-303). There was a lot of blood inside the Scion, and three marijuana bulbs
9
were in the gearshift console (RR. III – 118, 122). The lead core of a bullet was
near the gearshift console, and a copper jacket fragment was in the back seat (RR.
III – 123). Christie pointed out Martinez’s house to the police (RR. III – 170-171).
Gallo had been inside Martinez’s house for about ten minutes before the
police arrived (RR. III – 225, 272). He was so paranoid that he jumped the fence
into the neighbor’s yard and ran away, but he was eventually caught (RR. III –
226-228). Ollevera did the same with the same result (RR. III – 273-275). The
officers entered Martinez’s house and found a large bag of marijuana on top of the
living-room sofa (RR. IV – 30). The Infiniti parked in the garage belonged to
Lobos (RR. IV – 32). A police dog named Rocket was brought to the scene to look
for the murder weapon (RR. III – 145). He followed a trail down the bayou but
never found the gun (RR. III – 147-151) (RR. IV – 36-39) (St. Ex. 96-106).
More than two weeks after the murders, the police tracked the appellant to
an apartment complex on South Post Oak (RR. IV – 65, 81). They knocked on the
front door to the apartment, and a woman answered a few minutes later (RR. IV –
68). As the officers entered the apartment, a neighbor yelled that some guys were
jumping off of the second-story balcony at the back of the apartment (RR. IV –
70). The suspects, including the appellant, started running down Post Oak, but the
police chased them to a nearby gas station where the appellant was finally detained
(RR. IV – 70-71). The appellant then gave a videotaped statement to homicide
10
detective Richard Bolton in which he admitted to shooting both of the victims (St.
Ex. 150).
SUMMARY OF THE ARGUMENT
The majority opinion below mistakenly held that the two-step-interrogation
issue was preserved for appellate review when the trial court thought that the
appellant was making a different objection. Furthermore, the majority opinion
failed to defer to the explicit factual findings of the trial court where there was
evidence in the record that the appellant was not subject to custodial interrogation
prior to receiving his legal rights. The majority opinion also erred in finding
deliberate misconduct by the police when there was no support in the record for
such a conclusion. Finally, the majority opinion erred in holding that the appellant
was harmed by the admission of his statement to the police when he bragged of his
crime to numerous friends, showed the fruits of the crime, and ran from the police.
ARGUMENT
The appellant filed a written pre-trial motion to suppress his confession,
claiming that his statement was taken without a proper warning of his
constitutional and statutory rights and that he was illegally arrested (CR – 54-55).
11
The trial court carried the motion with the trial; when Detective Bolton was called
to testify, the trial court held a hearing outside the presence of the jury at which the
appellant and Bolton were the only witnesses (RR. IV – 79, 95). The trial court
apparently believed that the only purpose of the hearing was to address the
voluntariness of the appellant’s statement (RR. IV – 80-81).
Detective Bolton testified that the appellant was initially interviewed on
April 16 and that Bolton was called in to conduct the formal interview that evening
(RR. IV – 81, 85). Bolton testified that his partner, Investigator Padilla, had
interviewed the appellant prior to the formal statement and that Bolton had
monitored the interview, although there was conflicting evidence on that issue
(RR. IV – 86, 87, 89). During the following exchange with the appellant’s
counsel, Bolton testified that Padilla had given the appellant his legal warnings
prior to questioning him:
Q. So, there was a time when both individuals were telling you
they were not involved and didn’t know what you were talking about.
A. The defendants?
Q. Yes.
A. Yes.
Q. That be fair to say?
A. Yes, sir.
12
Q. And when any other officers read them their Miranda
warnings, you don’t know or if they were read at all ‘cause you
weren’t there?
A. Yes, I was there. I was in the monitoring room. When they
entered the room, you know, they read the defendant – and when they
interviewed Mr. Martinez, they also read him his legal warnings as
well.
(RR. IV – 87). The trial court found, based on its evaluation of the witnesses’
testimony and credibility, that “Bolton credibly testified that Padilla had given the
defendant his legal warnings prior to questioning him,” and that “any statements
indicating that Padilla had not given the defendant his legal warnings prior to
questioning him are not credible.” (CR Supp. – 23).
Bolton did not start talking to the appellant until 10:00 or 10:30 p.m., and
did not take the formal videotaped statement until around midnight (RR. IV – 90-
91). He stated that he gave the appellant his legal warnings, and indeed the video
begins with Bolton stating, “I’m gonna read your rights to you like I did a little
earlier.” (St. Ex. 150). He testified that the delay in taking the formal interview
was an effort to build rapport with the appellant (RR. IV – 88).
The appellant testified during the suppression hearing that the officers never
read him his legal warnings when they first started talking to him (RR. IV – 97-
98). The appellant further claimed that he repeatedly told the officers that he did
not want to talk to them (RR. IV – 99). He admitted that he knew his rights
because he had been placed in a homicide office once before (RR. IV – 99). But
13
the trial court found that the appellant’s testimony was not credible (CR Supp. –
23-24).
The appellant’s argument on appeal, and the basis for the lower court’s
reversal, was Missouri v. Seibert, 542 U.S. 600 (2004). See Vasquez, 453 S.W.3d
at 563 (citing Seibert and Carter v. State, 309 S.W.3d 31, 36–37 (Tex. Crim. App.
2010)). But the appellant’s two pre-trial motions to suppress made no mention of
Seibert or “midstream warnings” or a “two-step interrogation.” (CR – 54, 76). See
Barfield v. State, 416 S.W.3d 743, 749 (Tex. App.—Houston [14th Dist.] 2013, no
pet.) (citing Batiste v. State, AP-76,600, 2013 WL 2424134, *16 (Tex. Crim. App.
June 5, 2013) cert. denied, 134 S. Ct. 1000 (U.S. 2014) (“At trial, appellant did not
make any reference to Seibert, Carter, “two-step questioning,” “question first,
warn later,” or any other argument that might raise an issue under Seibert.”)).
It was not until closing argument at the suppression hearing, after the trial
court had already ruled on the briefed suppression issue, that the appellant first
mentioned a “two-step interview.” (RR. IV – 105). Even at that point, the
appellant made no mention of Seibert, and it was clear that the trial court did not
understand the nature of the objection. Rather, the trial court believed that it was
merely another aspect of the briefed issue.
The focus of the written suppression motions was the voluntariness of the
appellant’s statement and the State’s compliance with Article 38.22 of the Code of
14
Criminal Procedure, which governs the admission of oral statements. See TEX.
CODE CRIM. PROC. art. 38.22 §3 (West 2010). The appellant began his closing
argument at the suppression hearing by citing Nguyen v. State, 292 S.W.3d 671
(Tex. Crim. App. 2009), which deals with Article 38.22 but makes no mention of
Seibert and is not a “midstream warnings” case (RR. IV – 104-105). The trial
court overruled the appellant’s complaint, and the appellant then claimed that it
was a “two-step interview.” (RR. IV – 105-106). The trial court responded,
All right. Only the video statements are admissible. Statements
that he made that were not videoed are not admissible in the State’s
case in chief. But any statements that he made outside the video still
could fall under, you know, 613 impeachment, in the event that he
should testify. And then he could be impeached on inconsistency
under 613. Otherwise, they don’t come in.
All right. So, I guess what I’m doing is I’m granting your
motion in part. All right. So, any statements that he makes outside the
video, outside of the Miranda warnings that were stated on the video
do not come in. I’m still leaving it open in the event that it might be
inconsistent. It could come in for some other purpose.
(RR. IV – 106) (emphasis added). The trial prosecutor then confirmed that he only
intended to “introduce the officer, circumstances and play the video.” (RR. IV –
107) (emphasis added).
Neither the trial court nor the trial prosecutor understood the nature of the
appellant’s new Seibert objection, which was being raised for the first time at the
end of the suppression hearing. The trial court thought that the appellant’s “two-
step” objection referred to the fact that some of the interview was videotaped and
15
some of the interview was not because Article 38.22 requires that the entire
statement be recorded. See TEX. CODE CRIM. PROC. art. 38.22 §3 (West 2010).
The trial court’s response focused on the videotape, which is crucial to an
Article 38.22 Section 3 challenge. See TEX. CODE CRIM. PROC. art. 38.22 §3 (West
2010) (“No oral or sign language statement of an accused made as a result of
custodial interrogation shall be admissible against the accused in a criminal
proceeding unless: (1) an electronic recording, which may include motion picture,
video tape, or other visual recording, is made of the statement.”). But the presence
of a videotape is irrelevant in a Seibert analysis. See Carter, 309 S.W.3d at 38
(“We therefore join numerous state and federal jurisdictions in adopting Justice
Kennedy’s concurrence in Seibert because it is narrower in scope than the plurality
opinion and applies only to two-step interrogations involving deliberate police
misconduct.”).
Furthermore, the trial court believed that it was “granting [the] motion in
part,” which makes sense in the context of Article 38.22 but makes absolutely no
sense in the context of a Seibert motion. If there were a violation of Article 38.22,
then the trial court could suppress that portion of the statement that was
involuntary or that was not recorded. See, e.g., Resendez v. State, 256 S.W.3d 315,
327 (Tex. App.—Houston [14th Dist.] 2007) rev’d on other grounds, 306 S.W.3d
308 (Tex. Crim. App. 2009) (“Because the interrogation of appellant was custodial
16
from the point after which appellant admitted he shot the complainant, the trial
court erred in denying appellant’s motion to suppress this part of appellant’s
statement based on appellant’s failure to receive the required warnings from the
law enforcement officers or waive his rights.”) (citing TEX. CRIM. PROC. CODE art.
38.22, § 3). But if there were a Seibert violation, then the entire statement should
be suppressed. Carter, 309 S.W.3d at 37 (“the interrogation technique used with
Seibert undermined the goals of Miranda and thus required suppression.”).
The appellant did nothing to correct the trial court’s mistaken impression
concerning the nature of the second objection, and the trial prosecutor did not
recognize it as a veiled Seibert issue. Fortunately, the appellant cannot profit by
his failure to clarify the issue for the trial court. See TEX. R. APP. P. 33.1(a) (“As a
prerequisite to presenting a complaint for appellate review, the record must show
that: (1) the complaint was made to the trial court by a timely request, objection, or
motion that: (A) stated the grounds for the ruling that the complaining party sought
from the trial court with sufficient specificity to make the trial court aware of the
complaint, unless the specific grounds were apparent from the context…”)
(emphasis added).
In Phillips v. Bramlett, 288 S.W.3d 876, 882-83 (Tex. 2009), the defense
counsel objected to closing argument as follows: “Judge, I object to any testimony
about the propriety of other trials and the verdicts reached by other juries in
17
Lubbock.” The trial court responded: “This is his argument, and it is not
testimony.” The defense counsel did not offer any further explanation of his
objection, and the plaintiffs’ counsel thereafter continued to argue that the jury
needed to send a message to the doctors of Lubbock without further objection. On
appeal, the appellant complained about the improper argument. The Texas
Supreme Court cited Rule 33.1 and agreed that “the asserted error was not
preserved because the trial court’s response indicated that it did not understand the
objection, and counsel made no further attempt to clarify the court’s understanding
or obtain a ruling on his objection.” Phillips, 288 S.W.3d at 883.
In the present case, the appellant never referenced Seibert, Carter, “question
first, warn later,” or “mid-stream warnings” in either of his written motions to
suppress or at any time during the proceedings. See Batiste, 2013 WL 2424134,
*16 (“At trial, appellant did not make any reference to Seibert, Carter, “two-step
questioning,” “question first, warn later,” or any other argument that might raise an
issue under Seibert.”). He waited until after the trial court had overruled his
Article 38.22 argument to finally mention the term “two-step interview.” (RR. IV –
105). But the trial court’s response showed that it mistakenly believed that the
appellant was still objecting based on Article 38.22. Therefore, the appellant failed
to object with sufficient specificity to make the trial court aware of the complaint,
and his sole point of error should have been overruled. See TEX. R. APP. P. 33.1(a);
18
Phillips, 288 S.W.3d at 883; Vasquez, 453 S.W.3d at 577-580 (Frost, J., dissenting)
(“Because appellant did not timely raise the ‘question first, warn later’ complaint,
he failed to preserve error in the trial court, and this court may not reverse the trial
court’s judgment based on this complaint.”).
Even if the appellant had properly preserved his appellate complaint, the
majority opinion nevertheless erred in finding a Seibert violation. As stated
previously, the trial court made the factual finding that Padilla had given the
defendant his legal warnings prior to questioning and that any statements to the
contrary were not credible. (CR. Supp. – 23). The majority opinion erred in failing
to respect the trial court’s authority to make such findings. Maxwell v. State, 73
S.W.3d 278, 281 (Tex. Crim. App. 2002) (“At a suppression hearing, the trial
judge is the sole and exclusive trier of fact and judge of the credibility of the
witnesses and their testimony.”).
The court of appeals cited Carmouche v. State, 10 S.W.3d 323 (Tex. Crim.
App. 2000), in support of its holding that there was “indisputable” evidence to the
contrary of the trial court’s findings. But the Carmouche court stated that “the
videotape presents indisputable visual evidence contradicting essential portions of
Williams’ testimony. In these narrow circumstances, we cannot blind ourselves to
the videotape evidence simply because Williams’ testimony may, by itself, be read
to support the Court of Appeals’ holding.” Carmouche, 10 S.W.3d at 332
19
(emphasis added). In the present case, there was no indisputable visual evidence
contradicting essential portions of Bolton’s testimony. Therefore, the trial court
could not have abused its discretion in making the credibility findings based on its
observations of the witnesses’ credibility and demeanor. See Manzi v. State, 88
S.W.3d 240, 244 (Tex. Crim. App. 2002) (“Trial courts are the traditional finders
of fact, and their determinations of historical fact are entitled to deference.”).
There is no need for this Court to “blind itself” to indisputable visual
evidence contradicting Bolton’s testimony that Padilla “read the defendant…his
legal warnings.” (RR. IV – 87). While Bolton’s later testimony may have been
inconsistent with the cited statement regarding Padilla’s warnings, it was not
indisputable visual evidence. Rather, it was merely additional testimony subject to
credibility determinations, and the trial court explicitly found that such testimony
was not credible (CR Supp – 23). Therefore, Carmouche did not allow the lower
court to brush aside the trial court’s findings that are based on the trial court’s
observation of the witnesses’ demeanor and its evaluation of their credibility.
The majority opinion also failed to respect the trial court’s discretion in
finding that “any delay in the administration of Miranda warnings was due to an
effort to build rapport with the defendant rather than to intentionally circumvent
the protections of Miranda.” (CR. Supp. – 25-26). The central question when
determining the admissibility of post-Miranda warning confessions made after
20
Miranda violations is whether the evidence shows that the officer deliberately
employed a two-step “question first, warn later” interrogation technique to
circumvent the suspect’s Miranda protections. Carter v. State, 309 S.W.3d 31, 36–
37 (Tex. Crim. App. 2010). Because the question of whether the interrogating
officer deliberately employed such a technique “will invariably turn on the
credibility of the officer’s testimony in light of the totality of the circumstances
surrounding the interrogation,” a factual finding regarding the officer’s credibility
is entitled to “highly deferential review.” Id., 309 S.W.3d at 40.
When a two-step questioning tactic has not been deliberately employed, “a
suspect who has once responded to unwarned yet uncoercive questioning is not
thereby disabled from waiving his rights and confessing after he has been given the
requisite Miranda warnings.” Oregon v. Elstad, 470 U.S. 298, 318 (1985). When
the first statement is unwarned but not coerced, the admissibility of any subsequent
statement turns on whether it is knowingly and voluntarily made. Id., 470 U.S. at
309; Carter, 309 S.W.3d at 32.
In the present case, the only evidence that the appellant was subject to
custodial interrogation prior to receiving his legal warnings came from the
appellant’s mouth (RR. IV – 97-98). But the trial court explicitly disbelieved the
appellant’s testimony at the suppression hearing (CR. Supp. 23-24). See Guzman,
955 S.W.2d at 89; Ervin, 333 S.W.3d at 213–14 (“Because the trial court found
21
credible the officers’ testimony that appellant was not in custody ... even if the
officers erred in their belief that she was not in custody, that error does not amount
to a deliberate tactic to circumvent Miranda.”).
The majority opinion concluded, contrary to the trial court’s findings, that
the fact that the appellant was in custody and gave both statements to officers at a
police station “indicates that the absence of Miranda warnings before the
beginning of the interrogation process was not a mistake but rather a conscious
choice.” Vasquez, 453 S.W.3d at 572. But as this Court has related, “the trial
judge’s assessment of the interrogating officer’s subjective intent is especially
important under Justice Kennedy’s approach in Seibert…We therefore adopt the
position of those federal and state courts that have applied a highly deferential
review—similar to our Guzman standard—of the question of an officer’s
subjective ‘deliberateness’ in the ‘question first, warn later’ context.” Carter, 309
S.W.3d at 40.
In Seibert, the interrogating officer testified at the suppression hearing that
he made a “conscious decision” to withhold Miranda warnings, thus resorting to an
interrogation technique he had been taught: question first, then give the warnings,
and then repeat the question “until I get the answer that she’s already provided
once.” Seibert, 542 U.S. at 605-06. That was sufficient to show a deliberate intent
to circumvent the protections of Miranda. Id.
22
In the present case, Detective Bolton testified that the delay in taking the
appellant’s formal interview was an effort to build rapport with the appellant (RR.
IV – 88). He stated that, “sometimes it’s like hours, you know, just to get – to
build rapport with the individual. You know, we talk to them about a number of
things, about family.” (RR. IV – 88). Furthermore, the trial court explicitly found
that “any delay in the administration of Miranda warnings was due to an effort to
build rapport with the defendant rather than to intentionally circumvent the
protections of Miranda.” (CR. Supp. – 25-26). Therefore, any delay in
administering legal warnings to the appellant in the present case was due to
permissible rapport-building rather than to the impermissible activity of Seibert.
See, e.g., People v. Delatorre, B230591, 2012 WL 909659, *5 (Cal. Ct. App. Mar.
19, 2012) (finding no Seibert violation where officer testified that the
“conversation began, we began talking, a rapport was built, and it wasn’t until
some facts started to come out that I realized I had forgotten to Miranda.”); State v.
Hughes, 272 S.W.3d 246, 255 (Mo. Ct. App. 2008) (finding no Seibert violation
where officers’ pre-waiver questioning was to build a rapport). The trial court’s
ruling should have been upheld.
Finally, even if the majority opinion below were correct on the Seibert
violation, it nevertheless erred in determining that the appellant was harmed by the
admission of his statement. The evidence supporting the appellant’s guilt,
23
independent of his recorded statement, was overwhelming. Both Gallo and
Ollevera testified that the appellant was at Martinez’s house shortly after the
murder, and the appellant was bragging about having shot and killed two people
for a bag of weed (RR. III – 204-205, 211, 214, 219, 261, 266-268, 305) (RR. IV –
34-35). The appellant was holding a bag of marijuana; he showed it to Gallo and
did not appear to be remorseful over the murders (RR. III – 211, 223, 269, 272).
Furthermore, the appellant fled from the police who were investigating these
murders (RR. IV – 70-71). Finally, even the appellant’s own witness admitted that
the appellant had taken the marijuana from Nguyen and Lobos (RR. V – 49-50).
Thus, it is unlikely that the admission of the appellant’s videotaped statement had
more than a slight effect on the jury’s verdict, and the majority opinion below erred
in holding otherwise.
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PRAYER
It is respectfully requested that the opinion of the court of appeals should be
reversed and the conviction affirmed.
DEVON ANDERSON
District Attorney
Harris County, Texas
/s/ Eric Kugler
ERIC KUGLER
Assistant District Attorney
Harris County, Texas
1201 Franklin, Suite 600
Houston, Texas 77002
(713) 755-5826
kugler_eric@dao.hctx.net
TBC No. 796910
25
CERTIFICATE OF SERVICE AND COMPLIANCE
This is to certify that: (a) the word count function of the computer program
used to prepare this document reports that there are 5,581 words in it; and (b) a
copy of the foregoing instrument will be served by efile.txcourts.gov to:
Mark Kratovil Lisa McMinn
Assistant Public Defender State Prosecuting Attorney
Harris County, Texas P.O. Box 13046
1201 Franklin, 13th Floor Austin, Texas 78711
Houston, Texas 77002 Lisa.McMinn@SPA.texas.gov
Mark.kratovil@pdo.hctx.net
/s/ Eric Kugler
ERIC KUGLER
Assistant District Attorney
Harris County, Texas
1201 Franklin, Suite 600
Houston, Texas 77002
(713) 755-5826
TBC No. 796910
Date: May 12, 2015
26