Pena, Manuel

/0H-f5
COURT OF CRIMINAL APPEALS

PETITION FOR DISCRETIONARY REVIEl

WITH A PETITION BRIEF

COURT OF CRWAL APPEALS
MANUEL PENA,
[Appellant Pro Se] SEP 18 2015
US .
Abel Acoste, Clerk
THE STATE OF TEXAS

TRIAL COURT CAUSE NO. 2009-CR-1438-A
COA CASE NO. 13-14-00175-CR
107th JUDICIAL DISTRICT COURT
CAMERON COUNTY, TEXAS

Hon. BENJAMIN EURESTI

FILED IN
COURT OF CRIMINAL APPEALS
SEP 18 2015

Abel Acosta, Clerk
 TABLE OF CONTENTS PAGE

IDENTIFICATIONS OF THE PARTIES 77
INDEX OF AUTHORITIES

STATEMENT OF THE CASE
J—
ISSUE PRESENTED
The court of Appeals did err by holding
that the Appellant's Sixth Amendment
waiver was valid.

STATEMENT OF THE FACTS

SUMMARY OF THE ARGUMENT
ill
STANDARD OF REVIEW
Ail
ARGUMENT
J{_
HARM ANALYSIS s
PRAYER s
CERTIFICATE OF SERVICE s

(i)
 IDENTIFICATION OF THE PARTIES

APPELLANT Pro Se

Manuel Pena
TDCO #1910565
Conn ally Unit
R99FM632
Kenedy , Texas 78119

CAMERON COUNTY DISTRICT ATTORNEY

Luis V. Saenz
964 E. Harrison St,
Brownsville, Texas 78520

(ii)
 INDEX OF AUTHORITIES

PAGE

Bremer v, State 430 U.S. 3B7, 97S.Ct. 1232 (1977) :. y
Carter v. State 309 SU3d 31 (Tex.Crim.App. 2010) _3
Douthitt 931 5LJ2d at 257 _3
Fulminante 499 U.S. at 296, 111 S.Ct. at 1257
W
Guzman v. 5tate 955 SU2d 85 (Tex.Crim.App 1997) X
Herrera 241 SU3d at 526 S
Hill v. Bartlette 181 SU3d 541 (Tex. App. 2005) ^/
Jones 119 SU3d at 777 S
Kirby v. Illinois 406 U.S. 682 (1972) y
Martinez 272 SU3d at 619 £~3
Miranda v. arizona 384 U.S. 436 %'$
Patterson v. Illinois 487 U.S. 285 (19B6) */
Seibert 542 U.S. at 622 3
State v. ross 32 SU3d B53 (Tex.Crim.App. 2000) 7
St.George v. State 237 SU3d 720 (Tex.Crim.App. 2007) «#
Upton v. State B53 SW2d 553 (Tex.Crim.App. 1993) S
U.S. v. Polanco 93 F3d 555 (9th Cir. 1996)

STATUTES

Texas Code of Criminal Procedures 38.22
fL
Texas Rules of Appellate Procedures 44.2 5_

(iii)
 STATEMENT OF THE CASE

NATURE OF THE CASE Appellant was charged by indictment for the
offense of capital murder.

TRIAL COURT 107th Judicial District Court

Cameron County, Texas
Hon. Benjamin Euresti, Presiding Judge

PROCEEDINGS Appellant pleaded "Not Guilty" to the offense of

capital murder. A jury was selected for the trial
on the merits, guilt/innocence phase. On February
24, 2014, the trial began, and.continued until
February 27, 2014, when., a verdict was •reached.

TRIAL COURT DISPOSITION: The jury found Appellant guilty of
capital murder. The trial judge sente
nced Appellant to LIFE without parole in
the Texas Department of Criminal Justice

The trial court granted Mr. Pena's Motion as to the first state

ment, considering that the State conceded the point, but denied
Mr. Pena's Motion to Suppress as to his second statement.
(25 R. P.74, lines 13-23) .

ISSUE PRESENTED •-. ••

THE COURT OF APPEALS DID ERR BY HOLDING THAT APPELLANT'S

SIXTH AMENDMENT WAIVER WAS VALID.

STATEMENT OF FACTS

On April 20, 2009 Law Enforcement Officers in San Benito,
Texas were investigating a murder case that occurred the day
before. (25 R. P. 10, lines 1B-21). Investigators then prepared
a complaint and affidavit for a warrant of arrest for Mr. Pena.

(25 R. P.28, lines 14-24; State's Exhibits 5 and 6). Officers
informed Mr. Pena of his Miranda warnings six minutes, after his
arrest. (25 R. P.39). Mr. Pena requested and was provided
court-appointed counsel. (25 R. P.43, lines 14-21; P.53, lines
5-14). He was approached by Law Enforcement Officers who obtained
a statement from him. (25 R. P.53, lines 15-22; P.54-55, lines
24-4 ). Mr. Pena, without the benefit of counsel, unilaterally
Page 1 of "5
waived his right to have counsel present. (25 R. P.54, lines
6-10; P.55, lines 1-2; P.57, lines 6-9). After he gave his first
statement, he was transferred to the Cameron County Jail (25 R.
P.45, lines 7-18). The process continued while in jail (25 R. P.45,
lines 1-3). Officer Morales testified that after he gave his first
statement "we just continued following up information". (25 R. P.45,
lines 1-3). Ten days after the transfer he waived his sixth amend
ment right to the assistance of counsel (25 R. P.46, lines 13-22).
He did so by sending a note (State's Exhibit 10). After the
Officers took his statements, no efforts were made by the Officers
to determine of an attorney. He did not know he could, have an
attorney present. (25 R.^R .57, lines 20-24), see alsocross-exam-
ination of Officer Morales (25 R. P.57-58, lines 20-25).

SUMMARY OF T.HE ARGUMENT

Appellant states that the note he sent to police officers
requesting to speak with them and his second statement, like his
first should have been excluded from evidence at trial because they
were obtained in violation of his sixth amendment right to- counsel,
More specifically, eventhough there is a purported waiver of right
to counsel, his waiver was invalid because his sixth amendment
right to counsel had attached, he was represented,by court-appointed
counsel at the time of the waiver, and he made the waiver without
the benefit of counsel. Upton v . State 853 5W2d 55 3 (Tex. Crim.
App. 1993); Miranda v. Arizona 304 U.S. 436, B6 S.Ct. 1602 (1986).

STANDARD OF REVIEW
of. Motion to Suppress

Individuals subjected to custodial police questioning in Texas
are protected by the U.S. Supreme Court decision in Miranda v.
Arizona and by Ar.ticle 38.22 of the Tex. Code Crim. Proc. Herrera ,
241 SW3d at 526 (stating that both Articles 38.22 and Miranda apply
when persons are in custody and being interrogated). In Miranda,
the U.S. Supreme Court held that "when an individual is taken into
custody and is subjected to questioning, the privilege against self-
incrimination is jeopardized." Id U.S. at 478, Id S.Ct. at 1630.

Page 2 of 5
Consequently, such questioning requires that the person be informed
of his right to remain silent and his right to an attorney. Id at
479, 86 5.Ct. at 1630. After the Miranda warnings have been given,
a ."person may then knowingly and voluntarily waive his rights. Id.
"But unless and until such warnings and waiver are demonstrated by
the prosecution at trial, no evidence obtained as a result of .
interrogation can be used against him." Id. Evidence obtained as
a result of a custodial interrogation without such warnings- and
waiver is inadmissible under- the fifth amendment..- See Id. at 494,
86 S.Ct. at 163B. It is also inadmissible under Art.3B.22 sect. 2
of the Tex. Code Crim. Proc. (version 2005). An accused who is
held in custody must be given Miranda warnings prior to questioning
or the State is generally "required to. forfeit the use of any state
ment obtained during the interrogation during, its case-in-chief."
Martinez 272 Shi 3d at 619 n.10 (citing Ml ran da 384 US at 444, 86 S.Ct.
at 1612). Appellant states the police deliberately used a two-step
interrogation technique of "question first warn later", in a calc
ulated way to undermine the Miranda warning. See Carter v.-State
309 SW3d 31,36 (Tex. Crim. App. 2010); see also Martinez 272 SW3d
at 623 (quoting Seibert 542. U.S. at 622, 124 S.Ct. at 2616) Kennedy,
J.concurring.

Under similar circumstances, in Jones v. State , The Texas. Court
of Criminal Appeals held that the appellant was "clearly in.custody"
for purposes of Miranda 119 SW3d 766, 771-72,776 (Tex .Crim .App . 2003 ) .
The defendant in that case was under arrest and incarcerated for

outstanding traffic warrants and for ••possession., of a controlled
substance when he was interviewed, id at 771 . While incarcerated,
he had given two statements implicating himself in-a murder and had
received Miranda warnings for both. Id.- Nine or Ten days later,
he was questioned while in jail about two extraneous murders on
the basis of information obtained by investigators. Id. He was
not given Miranda warnings before being confronted with the state
ments of his "good friend, Ricky Red Roosa", and told Roosa had

named him as primarily responsible for the murders. Id. The
Court of Criminal Appeals stated: Jones 119 SW3d at 771-72. See

Dowthitt 931 SW2d at 257 (holding custody began when appellant

Page 3 of 5
admitted to his presence during murders).

ARGUMENT

Attachment of sixth amendment right to counsel as defined by
Subsection 38.22 of the Tex. Code of Crim. Proc.

The State's opinion -agreed that appellant was correct in- stat
ing that his sixth amendment right to counselattaches att he
initiation of adversarial proceedings. See pg 6.of the State's
brief. In Texas "A" person is entitled to the.help of a lawyer
at or after the time that judicial proceedings have been initiated
against him - whether by way of formal •charg.e, preliminary hearing.,
indictment, information, or arraignment. Kirby V.Illinois 406 U.S
682(1972). Thus, once a person has been charged and has become
an accused the custodial interrogation must cease until.an attorney
is present to assist. Patterson v. Illinois 487 U-..S. 285, 290
(19S6); Upton jj . State 853 5W2d 54B (Tex.Crim.App. 1993).. The
existance of an attorney-client relationship can be- shown by
proving the existance of a contractual relationship established
"explicity or by conduct". Hill v. Bartlette 181 SW3d 541, 547
(Tex App. - Texarkana 2005) no pet.
After appellant was arrested pursuant to a valid arrest
warrant, the adversarial process began (25 R. P. 39).. He trigger
ed his sixth, amendment right by asking for appointed counsel when
he was taken before a magistrate judge. (25 R. 39). His request
for counsel was signed, and as the State, conceded-, he had an
attorney at this point. (25 R. P.43). Appellant's sixth amend
ment right to counsel attaches at the initiation of the adversarial
proceedings.. Brewer v. Williams 430U.S. 387, 398; 97 S.Ct. 1232
(19 7 7).

This Court should use a bifurcated standard of review. See
St.George v. State 237 SW.3d 720, 725 (Tex.Crim.App. 2007). This
Court should review de novo mixed questions of law and fact not
falling within that category. See State v. Ross 32 SW3d 85 3, 856
(Tex.Crim.App 2000)(citing Guzman v. State 95 5 SU2d 85, 89 (Tex.Crim
App. 1997).

Page 4 of 5
 HARM ANALYSIS

The admission into evidence of a statement taken in violation

of Miranda rights is constitutional error subject to Harmless Error

Review under Tex.Rules App. Proc. 44.2(a); Jones 119 SW3d at 777.
In such a case, reversal is required unless this ..Court determines
beyond a reasonable doubt that the failure to suppress'the state
ment did not contribute to the jury's verdict., Tex. R.Apo.P. 44.2
(a); Jones 119 SW3d at 777. In the context of a Miranda violation
this Court must judge the magnitude.of the error in light of the
evidence as a whole to determine the degrea of prejudice to the
defendant resulting from the error. Id. -(.quoting. U.S. V. Polanco
93 F3d 555,562-63 (9th Cir. 1996).
A defendant's own confession is probably the most probative
and damaging evidence that can be admitted against him. The actor

himself, the most knowledgeable and unimpeachable source of inform
ation about his oast conduct. Cert ainly .. confe s s ion s have profound
impact on the. jury, so much so that we may justifiably doubt its
ability to put them out of mind, even if told to do so. (quoting
Fulminante 499 U.S. at 29 6, 111 S.Ct. at 1257).
Appellant has shown that he is entitled to relief deemed just.

PRAYER

Appellant PRAYS for this Court to use the correct standard.

CERTIFICATE OF SERVICE

On this the // day of i^/y, , 2015, Appellant sent
this PDR with Petition to the:

Court of Criminal Appeals
P.O. Box 12308 Capitol Station
Austin, Texas 78711

Attn: Abel Acosta, Court Clerk

Respectfully submitted,

Appellant Pro Se #1910565
Connally Unit
399 FM 632
Kenedy , Texas 78119

Page 5 of 5
 NUMBER 13-14-00175-CR

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI - EDINBURG

MANUEL PENA, Appellant,

THE STATE OF TEXAS, Appellee.

On appeal from the 107th District Court
of Cameron County, Texas.

MEMORANDUM OPINION
Before Chief Justice Valdez and Justices Benavides and Perkes
Memorandum Opinion by Justice Benavides

A Cameron County jury found appellant Manuel Pena guilty of capital murder, see

Tex. Penal CodeAnn. § 19.03(a)(2) (West, Westlaw through 2013 3d C.S.), and he was
sentenced to life imprisonment without the possibility of parole. By one issue, Pena
asserts that the trial court erred in denying his motion to suppress statements made in
violation of his Sixth Amendment right to counsel. We affirm.

I. Background1

The State alleged that Pena murdered Ramon Pinon while in the course of

committing or attempting to commit a burglary of Pinon's habitation. See id. Before

trial, Pena filed a motion to suppress two statements that Pena provided to the police

following his arrest.

At the suppression hearing, the State called Martin Morales, Jr., a former detective

and current chief of police for the San Benito Police Department. Morales testified that

he took part in the Pinon homicide investigation, after Pinon's body was discovered on

April 19, 2009. Morales testified that on April 20, 2009, Cecilia Paz entered the police
department with information about the Pinon murder. According to Morales, Paz told
him that Pena arrived at her residence on April 19 and "began speaking about the incident

that occurred ... the day before." Paz later identified Pena through a photo lineup. Paz

told Morales that Pena attempted to sell her a small CD radio, a small television set, and

an electric circular saw. Paz indicated that she had purchased the circular saw from

Pena. Morales further testified that these items were the same items reported missing

from Pinon's residence. Paz told Morales that Pena had told her that "he had beaten up

a [Spanish word for old man]". Pinon's son, Ramon Pinon Jr., provided a statement to
police and identified a Black &Decker circular saw, retrieved from Paz, as belonging to

his father.

1 As this is a memorandum opinion, and the parties are familiar with the facts, we will recite only
the relevant facts necessary for the disposition of this appeal. See Tex. R. App. P. 47.4.
 Morales applied for an arrest warrant and attached a "complaint affidavit," as well

as other documents, including the statements from Paz and Pinon Jr. An arrest warrant

was issued on April 20, 2009, and Pena was arrested later that evening. Shortly after

his arrest, police read Pena his Miranda warnings. See Tex. Code Crim. Proc. Ann. art.

38.22 (West, Westlaw through 2013 3d C.S.). On April 21, 2009, Pena appeared before

a magistrate, and Pena requested court-appointed counsel. See id. art. 15.17 (West,

Westlaw through 2013 3d C.S.).

After his arrest and request for court-appointed counsel, Pena made two

statements to the San Benito police—the first on April 22, 2009 and the second on April

30, 2009. The trial court ordered the April 22nd statement suppressed, after the State

stipulated at the suppression hearing that it was inadmissible. The April 30th statement,

however, was the result of Pena sending police a handwritten note asking to speak to

them about the investigation "without [his] attorney present." The State argued that the

second statement was the product of Pena's "free will" and after his Miranda warnings

were read to him four times. The trial court agreed with the State and denied Pena's

motion to suppress his April 30th statement.

The trial proceeded, and after four days of receiving evidence and arguments, the

jury found Pena guilty of capital murder. The trial court assessed Pena's punishment at
life imprisonment without parole in the Texas Department of Criminal Justice-

Institutional Division. This appeal followed.

II. Motion to Suppress

By his sole issue, Pena asserts that the trial court erred in failing to suppress his
April 30th statement to police because it was obtained in violation of his Sixth Amendment

3
right to counsel.2

A. Standard of Review

In reviewing a trial court's ruling on a motion to suppress, we must view the

evidence in the light most favorable to the trial court's ruling. Johnson v. State, 414

S.W.3d 184, 192 (Tex. Crim. App. 2013); State v. Garcia-Cantu, 253 S.W.3d 236, 241

(Tex. Crim. App. 2008). When the trial court does not make explicit findings of fact, we

infer the necessary factual findings that support the trial court's ruling if the record

evidence (viewed in light most favorable to the ruling) supports these implied facts.

Johnson, 414 S.W.3d at 192.

Motions to suppress are reviewed pursuant to a bifurcated standard under which

the trial judge's determinations of historical facts and mixed questions of law and fact that
rely on credibility are granted almost total deference when supported by the record. Id.
But when mixed questions of law and fact do not depend on the evaluation of credibility
and demeanor, we review the trial judge's ruling de novo. Id. (citing State v. Kerwick,

393 S.W.3d 270, 273; Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim. App. 1997)).

Both parties acknowledge the trial court did not file findings offact and conclusions
of law. However, we agree with the State's concession that such findings are
unnecessary because the issue on appeal is not related to disputed facts, but turns upon

an application of law to facts, whose resolution does not turn on an evaluation of credibility

2Although Pena asserts that his statement was obtained in violation of his Sixth Amendment right
to counsel, his arguments appear to challenge his right to counsel under the Fifth Amendment.
Accordingly, we will analyze it as such.
and demeanor. See Guzman, 955 S.W.2d at 89. Accordingly, we will conduct a de

novo review of this issue.

B. Discussion

Pena argues that "even though there is a purported waiver of right to counsel"

related to his April 30th statement, such a waiver is invalid because he was represented

by counsel at the time he made the purported waiver and made the waiver without the

benefit of counsel. We disagree.

The United States Supreme Court devised a prophylactic rule in Edwards v.

Arizona, 451 U.S. 477,484 (1981) designed to "protect an accused in police custody from

being badgered by police officers." Oregon v. Bradshaw, 462 U.S. 1039, 1044 (1983);
see Cross v. State, 144 S.W.3d 521, 526 (Tex. Crim. App. 2004) (recognizing the

Edwards rule and the reasoning behind it). Simply stated, "an accused . . . having

expressed his desire to deal with police only through counsel, is not subject to further
interrogation by the authorities until counsel has been made available to him, unless the
accused himself initiates further communication, exchanges or conversation with the

police." Edwards, 451 U.S. at 484. Thus, under Edwards, a defendant's "discomfort"
in dealing with police without the guiding hand of counsel is presumed to persist unless
the suspect himself initiates further conversation about the investigation. Cross, 144
S.W.3d at 526 (citing Arizona v. Roberson, 486 U.S. 675, 684 (1988)). But the Supreme
Court has also explicitly stated that a suspect is not "powerless to countermand his
election" to speak only with the assistance ofcounsel. Id. (citing Edwards, 451 U.S. at
485). The Supreme Court clarified the Edwards rule and established a two-step
procedure to determine whether a suspect has waived his previously invoked right to

5
counsel. Id. at 526-27 (citing Oregon v. Bradshaw, 462 U.S. 1039 (1983) (plurality op.)).

The first step requires proof that the suspect himself initiates further communication with

the authorities after invoking the right to counsel. Id. The second step requires proof

that, after he reinitiates communication with authorities, the suspect validly waives the

right to counsel voluntarily, constituting a knowing and intelligent relinquishment or

abandonment of a known right or privilege, depending upon the particular facts and

circumstances surrounding the case, including the background, experience, and conduct

of the accused. Edwards, 451 U.S. at 482; Cross, 144 S.W.3d at 527.

The critical inquiry at this stage of the proceedings then turns to whether Pena was

further interrogated before he reinitiated conversation with law enforcement officials. Id.

at 529 (citing Willie v. Maggio, 737 F.2d 1372, 1384 (5th Cir. 1984)). If he was not, the

Edwards rule is not violated. Id.; see also McCarty v. State, 65 S.W.3d 47, 52 n.6 ("Of

course, if the arrestee reinitiates the conversation, the Edwards rule is satisfied."). The

court of criminal appeals further explained the Edwards rule in the following manner,

which we find helpful:

A suspect's invocation of his right to counsel acts like a protective Edwards
bubble, insulating him from any further police-initiated questioning. Only the
suspect himself can burst that bubble by both initiating communications with
police and expressly waiving his right to counsel. Once that bubble is burst,
however, Edwards disappears, and the police are free to reinitiate any
future communications and obtain any further statements as long as each
statement is voluntarily made after the waiver of Miranda rights.

Cross, 144S.W.3dat529.

Theday after Pena's arrest, he appeared before a magistrate and requested court-
appointed counsel. At that point, it was presumed under Edwards that Pena invoked his
Fifth Amendment right to counsel and did not want to deal with the police without the
"guiding hand of counsel" present. See Edwards, 451 U.S. at 484-85; Cross, 144

S.W.3d at 526. As a result, the State conceded at the suppression hearing that Pena's

first statement to police on April 22nd was unconstitutional, which obligated the trial court

to suppress that statement. However, eight days later, Pena voluntarily sent police a

witnessed handwritten note that stated the following:

I Manuel Pena would like to talk to S.B.P.D. about my case. I do this on my
free will. I defrt have not promise nothing [sic] in return, .without out my
attorney present [strikethrough in original]

As a result of Pena sending this note, the presumption that Pena chose not to

speak to police without the assistance of counsel under Edwards disappeared. See id.

at 529. Furthermore, prior to making his April 30th statement to police, Pena knowingly

and intelligently relinquished several of his rights in writing, including his right: (1) to "have

a lawyer present to advise [him] either prior to any questioning or during any questioning;
(2) to have a lawyer appointed "prior to or during any questioning; (3) "to remain silent
and not make any statement at all and that any statement [made by him] may be used in

evidence against [him] at trial;" and (4) "to terminate [the] interview at any time." Pena
also acknowledged that he understood all ofthe aforementioned rights, and did not wish
to consult with a lawyer. Finally, he, again, in writing waived his right to counsel and

right to remain silent.

We conclude that the protections provided under Edwards disappeared in this case

because Pena himself initiated further communication with the police through his

handwritten note, despite invoking his right to counsel nine days prior, and after
reinitiating that communication, Pena validly waived his right to counsel voluntarily,
constituting a knowing and intelligent relinquishment and abandonment of his rights.

7
See Edwards, 451 U.S. at 482; Cross, 144 S.W.3d at 527. Accordingly, the trial court

did not err in denying Pena's motion to suppress his April 30th statement. We overrule

Pena's sole issue on appeal.

III. Conclusion

We affirm the trial court's denial of Pena's motion to suppress.

GINA M. BENAVIDES,
Justice

Do not publish.
Tex. R. App. P. 47.2(b).

Delivered and filed the
25th day of June, 2015.