PD-1189-15
COURT OF CRIMINAL APPEALS
AUSTIN, TEXAS
Transmitted 9/30/2015 7:04:30 PM
Accepted 10/2/2015 10:35:39 AM
ABEL ACOSTA
NO. PD-1189-15 CLERK
IN THE COURT OF CRIMINAL APPEALS
________________________________________________________
MAYRA FLORES
Petitioner
V.
THE STATE OF TEXAS
Respondent
________________________________________________________
FROM THE COURT OF APPEALS FOR THE FIRST JUDICIAL
DISTRICT COURT OF TEXAS AT HOUSTON
________________________________________________________
PETITION FOR REVIEW
________________________________________________________
ORAL ARGUMENT REQUESTED
Ralphaell V. Wilkins
State Bar No. 21487600
Julia A. Maldonado
State Bar No. 24007591
4606 San Jacinto St.
Houston, Texas 77004
Tel: 713-660-9200; Fax: 713-660-0559
E-mail: rwilkins@jmaldonadolaw.com
E-mail: julia@jmaldonadolaw.com
ATTORNEYS FOR PETITIONER
October 2, 2015
i
IDENTITY OF PARTIES AND COUNSEL
Petitioner: Mayra Flores
TDCJ#1921088
Texas Department of Criminal Justice
Crain Unit
1401 State School Rd.
Gatesville, TX 76599
Trial Prosecutor(s): Joshua Phanco, Esq.
State Bar No: 24070413
Donna Logan, Esq.
State Bar No: 24049073
1201 Franklin Street
Houston, Texas 77002
Tel: 713-755-5800
Appeal Prosecutors: Daniel McCrory, Esq.
State Bar No: 13489950
1201 Franklin Street
Houston, Texas 77002
Tel: 713-755-5800
E-mail: mccrory_daniel@dao.hctx.net
Counsel(s): Ralphaell V. Wilkins, Esq.
State Bar No. 21487600
Julia A. Maldonado, Esq.
State Bar No. 24007591
4606 San Jacinto Street
Houston, Texas 77004
Tel: 713-660-9200; Fax: 713-660-0559
E-mail: rwilkins@jmaldonadolaw.com
E-mail: julia@jmaldonadolaw.com
Presiding Judge: Hon., Maria T. Jackson
339th District Court
Harris County, TX
1201 Franklin, 14th Floor
Houston, Texas 77002
ii
TABLE OF CONTENTS
IDENTITY OF PARTIES AND COUNSEL ii
TABLE OF CONTENTS iii
INDEX OF AUTHORITIES v
STATEMENT REGARDING ORAL ARGUMENT 1
STATEMENT OF THE CASE 1
STATEMENT OF PROCEDURAL HISTORY 2
GROUNDS FOR REVIEW 4
ARGUMENT 6
a. The Court of Appeals has decided an important question of
state law that has not been, but should be, settled by the Court
of Criminal Appeals. 6
b. There are three requirements for the admission of an accused’s
statement. 6
c. The petitioner’s statement should not have been admitted
because the recording device was not capable of making an
accurate recording. 7
d. The Court of Appeals did an apple to oranges comparison to
conclude that the audio tape’s overall reliability was not
impacted by the cut-off. 9
e. The Court of Appeals emasculated the requirements of section
three of art. 38.22 that an accused’s custodial interrogation be
recorded. 10
f. The Court of Appeals misapplied the Court of Criminal
Appeals’ decision in Weatherred by failing to account for
iii
ample evidence that the trial court had before it made its ruling
on the admissibility of Petitioner’s custodial interrogation. 11
g. The Court of Appeals misapplied Weatherred because the
burden of proving that the audio recording met the statutory
requirements was on the State and the State failed to carry this
burden. 15
CONCLUSION 16
PRAYER 16
CERTIFICATE OF SERVICE 17
CERTIFICATE OF COMPLIANCE 18
APPENDIX TO PETITION FOR REVIEW 19
iv
INDEX OF AUTHORITIES
Cases
Davidson v. State, 25 S.W.3d 183,185-86 (Tex. Crim. App. 2000) 6
Maldonado v. State, 998 S.W.2d 239-244-46 (Tex. Crim. App. 1999)
(citing Crim. Proc. Art. 38.22, § 3) 7, 9
Quinones v. State, 592 S.W.2d 933, 942 (Tex. Crim. App. 1980),
cert denied, 449 U.S. 893 (1980) 7, 9
Weatherred v. State, 15 S.W.3d 540, 542 (Tex. Crim. App. 2000) 11, 14, 15
Woods v. State, 152 S.W.3d 105, 116-17 (Tex. Crim. App. 2004) 6
Rules
Tex. Code Crim. Pro. Ann. art. 38.22, §3 (Vernon 2014) 4, 6, 7
v
STATEMENT REGARDING ORAL ARGUMENT
Petitioner believes oral argument would be helpful to the Court because the
issues raised are issues of first impression and the public policy behind resolution
of these issues could be better discussed in the context of oral argument, where the
Court can ask questions and consider alternatives that counsel are prepared to
discuss.
STATEMENT OF THE CASE
Nature of The Case: Mayra Flores was charged with the criminal
offense of murder.
Trial Judge: Hon. Maria Jackson
Trial Court’s Disposition: Mayra Flores was convicted of murder and
sentenced to twenty-five years in the Texas Dept.
of Criminal Justice.
Appeals Court Parties: Appellant: Mayra Flores
Appellee: State of Texas
Appeals Court’s Disposition: First Court of Appeals at Houston; opinion by
Justice Laura Higley, joined by Chief Justice
Radack and Justice Massengale.
Appeals Court’s Disposition: Affirmed.
1
STATEMENT OF PROCEDURAL HISTORY
COA Opinion Date: July 30, 2015
Mnt. for Rehearing: No motion for rehearing was filed after the Court
of Appeals’ July 30, 2015 opinion.
Grounds for Review: One: The Court of Appeals erred in ruling that the
audio recording of Mayra’s custodial interrogation
was admissible notwithstanding the fact that the
recording device used was not capable of making
an accurate recording.
Two: The Court of Appeals applied the wrong
standard in holding that the recording equipment’s
failure to record twenty minutes of Mayra’s
custodial interrogation did not amount to an
alteration that rendered the recording unreliable
and untrustworthy.
Three: The Court of Appeals misapplied this
Court’s holding in Weatherred because the audio
tape failed to meet the requirements of section
three of art. 38.22 and the trial court knew that
2
before its ruling to allow the audio recording into
evidence.
3
GROUNDS FOR REVIEW
1. Section three of art. 38.22 of the Texas Code of Criminal Procedure
establishes certain requirements for the admissibility of the recording of a custodial
interrogation. One of the requirements is that “the recording device was capable of
making an accurate recording…” See Tex. Code Crim. Proc. Ann. art. 38.22
(Vernon Supp. 2014). The trial court admitted the audio recording of Petitioner’s
custodial interrogation even though twenty minutes of the interrogation was
unrecorded because of a malfunctioning recording device. The audio taped
statement should not have been admitted because the unrecorded portion of the
interrogation contained exculpatory evidence and, thus, the audio recording was
not accurate. Because the lower courts refused to suppress the butchered audio
recording, the conviction must be overturned.
2. In order for a recording of a custodial interrogation to be admitted into
evidence, section three of art. 38.22 of the Texas Code of Criminal Procedure
mandates that “…the recording is accurate and has not been altered.” See Tex.
Code Crim. Proc. Ann. art. 38.22 (Vernon Supp. 2014). The twenty minutes of
unrecorded custodial interrogation affected the reliability and trustworthiness of
the entirety of Petitioner’s custodial interrogation. This is so because the twenty
minutes of unrecorded interrogation contained exculpatory evidence. The
recording was not accurate and should have been suppressed. The trial court’s
4
error in admitting the butchered audio tape likely led to an improper conviction and
must be overturned.
3. The court of appeals misapplied this Court’s holding in Weatherred
regarding what was before the trial court at the time of its ruling and, thus, subject
to appellate review. The trial court had knowledge before its ruling on the
admissibility of Petitioner’s custodial interrogation that the recording device failed
to record twenty minutes of the interrogation and that the unrecorded portion of the
interview contained exculpatory evidence. Because the audio tape failed to meet
the requirements of section three of art. 38.22 and the trial court knew that before
its ruling to allow the audio recording into evidence, Petitioner was harmed and
deserves a new trial.
5
ARGUMENT
a. The Court of Appeals has decided an important question of state
law that has not been, but should be, settled by the Court of
Criminal Appeals.
The Texas Code of Criminal Procedure provides specific rules for governing
the oral statements of an accused. Tex. Code Crim. Pro. Ann. art. 38.22, §3
(Vernon 2014) provides in relevant part:
(a) No oral or sign language statement of an accused made as a
result of a custodial interrogation shall be admissible against the
accused in a criminal proceeding unless:
(3) the recording device was capable of making an accurate
recording, the operator was competent, and the recording is
accurate and has not been altered;
b. There are three requirements for the admission of an accused’s
statement.
Article 38.22 is a “procedural evidentiary” rule that prescribes the various
requirements that must be satisfied before a statement made by an accused as a
result of custodial interrogation will be admitted against him/her at trial. Davidson
v. State, 25 S.W.3d 183,185-86 (Tex. Crim. App. 2000). “Strict compliance with
all portions of § 3(a) is required.” Woods v. State, 152 S.W.3d 105, 116-17 (Tex.
Crim. App. 2004).
Section three of art. 38.22 establishes certain requirements for the
admissibility of the recording of a custodial interrogation. See Tex. Code Crim.
Proc. Ann. art. 38.22 (Vernon Supp. 2014). Admissibility of the tape is governed
6
by the following three-part test: 1)“the recording device was capable of making an
accurate recording; 2) the operator was competent, and 3) the recording is accurate
and has not been altered.” Id. art. 38.22, § 3(a)(3). However, in addressing the
final prong of the test, this Court has confirmed that inadvertent anomalies that do
not affect the overall reliability of the recording do not constitute the impermissible
sort of alteration contemplated by section 3 of article 38.22. See Maldonado v.
State, 998 S.W.2d 239-244-46 (Tex. Crim. App. 1999) (citing Crim. Proc. Art.
38.22, § 3; Quinones v. State, 592 S.W.2d 933, 942 (Tex. Crim. App. 1980), cert
denied, 449 U.S. 893 (1980) (based on Edwards requirements, not just any
alteration renders a tape per se inadmissible: “If the alteration is accidental and is
sufficiently explained so that its presence does not affect the reliability and
trustworthiness of the evidence, the recording can still be admitted”).
c. The petitioner’s statement should not have been admitted because
the recording device was not capable of making an accurate
recording.
First, in our case, it was an abuse of the trial court’s discretion to admit the
statement because the recording device used in Petitioner’s case was not capable of
making an accurate recording. Proof that the recording device was not capable of
making an accurate recording is evidenced by the recording device’s failure to
record a full twenty minutes of Petitioner’s interrogation. (RR. V; p. 87; lines 10-
12; RR. V; p. 89; lines 13-17). It stretches credulity to the maximum length to
7
accept as factual that a recording device that stops working for twenty minutes of
an interrogation statement, and never resumes, is capable of making an accurate
recording. The trial court abused its discretion in admitting the audio recording
because the recording device was not capable of making an accurate recording as
mandated by section 3 of article 38.22. The court of appeals compounded the error
by not even addressing whether the recording device was capable of making an
accurate recording. The court of appeals erroneously framed Petitioner’s section 3,
art. 38.22 objection as only being that “…the recording of the interrogation is not
accurate.” (Opinion, p. 4). In actuality, both Petitioner and the State pointed out to
the trial court that the recording device was not capable of recording accurately.
(RR. V, p. 87; lines 14-24; RR. V, p. 89; lines 13-17; RR. V, pp. 89-90; RR. V; p.
87; lines 10-12). In essence, Petitioner’s complaint was not just that the recording
itself was not accurate, but that the recording device was not capable of making an
accurate recording. (Id.). Interestingly, the Court of Criminal Appeals has not
addressed this particular situation before. On only two occasions this Court has
opined on cases involving mishaps with the recording device during the custodial
interrogation process. However, neither of the malfunctions in those cases was
anywhere near the extent and to the degree as the malfunction in Petitioner’s case.
In both Quinones and Maldonado, this Court only addressed the admissibility of
recorded statements under the last leg of art. 38.22’s requirement that “the
8
recording is accurate and has not been altered.” Quinones, 592 S.W.2d at 944; (“If
the alteration is accidental and is sufficiently explained so that its presence does
not affect the reliability and trustworthiness of the evidence, the recording can still
be admitted.”). Maldonado, 998 S.W.2d at 245. (“[T]he evidence supports the
position that the tape was accurate and had not been impermissibly “altered” in the
sense contemplated by Article 38.22 §3(a)(3)”). While Petitioner certainly believes
that the audio recording was not accurate, she also raised objection to its
admissibility because the recording device could not record accurately.
d. The Court of Appeals did an apple to oranges comparison to
conclude that the audio tape’s overall reliability was not impacted
by the cut-off.
In an attempt to illustrate that the overall reliability of the audio recording in
Petitioner’s case was not affected by the recording device malfunctioning, the
appellate court cited two cases in which the combined anomalies in the audio
recordings of those cases amounted to a mere nineteen (19) seconds. (Opinion, pp.
5-6). In Quinones, “the tape had been altered by [a] fifteen second tapeover.” Id.
at 938. In Maldonado, the defendant complained of a three-second and a one-
second portion of his statement that had been “over-recorded.” Id. at 244. In
essence, the appellate court compared the loss of twenty-minutes of Petitioner’s
interrogation with the nineteen (19) seconds of anomalies in the audio recordings
in Quinones and Maldonado. It is true that anomalies of such short durations as
9
pointed out in those two cases certainly did not affect the overall reliability and
trustworthiness of the tapes. However, it would be the height of insanity to
conclude that the overall reliability of Petitioner’s audio tape (with its twenty
minutes of missing interrogation) is somehow comparable with the less than twenty
seconds of anomalies found in Quinones and Maldonado. Without question, a
failure to record twenty minutes of an interrogation affects the overall reliability of
the recording. How could one know or trust what was discussed during that twenty
minutes of unrecorded interrogation? This leaves one relying on the testimonies of
law enforcement personnel and the accused. Such a scenario defeats the purpose
of having custodial interrogations recorded in the first place.1
e. The Court of Appeals emasculated the requirements of section
three of art. 38.22 that an accused’s custodial interrogation be
recorded.
In a shocking departure from the strict requirements of art. 38.22, the court
of appeals relied on the testimony of the police detective to support its position that
the trial court was correct to admit the audio recording. (Opinion p. 7). The
appellate court said: “Officer Kuhlman testified that the recording “fairly and
1
See Stephan v. State, 711 P.2d 1156, 1161 (Alaska 1985) (holding recording interrogations
protects defendants’ rights); State v. Scales, 518 N.W.2d 587, 592 (Minn. 1994) (acknowledging
recording as essential to protect defendants’ constitutional rights (quoting Stephan v. State, 711
P.2d 1156, 1159-60 (Alaska 1985))); see also Amy Klobuchar, Eye on Interrogations: How
Videotaping Serves the Cause of Justice, WASH. POST, June 10, 2002, at A21 (arguing
recording protects rights of criminal suspects). Recording custodial interrogations protects other
interests besides those of the accused, such as “the public’s interests in honest and effective law
enforcement, and the individual interests of those police officers wrongfully accused of improper
tactics. “ Stephan v. State, 711 P.2d 1156, 1161 (Alaska 1985).
10
accurately depict[ed] the conversation that [he] had with the defendant on that
day.”” (Opinion, p. 7). There is no dispute that the portion of Petitioner’s
interview that was recorded was done so in a manner that “fairly and accurately”
depicted what Petitioner had said. That’s not the problem. The problem is the
twenty minutes of unrecorded interrogation that contained exculpatory evidence
that the jury never got to hear. However, under the court of appeals’ rationale, art.
38.22 would be totally eviscerated because there would not be a need to ever
record the custodial interrogation if one could rely solely on the officer’s rendition
of the defendant’s statement. Recording a suspect’s entire interrogation provides
substantial protection of the suspect’s rights as well as the rights of police officers
involved.
f. The Court of Appeals misapplied the Court of Criminal Appeals’
decision in Weatherred by failing to account for ample evidence
that the trial court had before it made its ruling on the
admissibility of Petitioner’s custodial interrogation.
The appellate court misapplied this Court’s holding in Weatherred v. State,
15 S.W.3d 540, 542 (Tex. Crim. App. 2000). The court of appeals cited
Weatherred for the proposition that an appellate court reviews a trial court’s ruling
on admissibility of evidence “in light of what was before the trial court at the time
the ruling was made”. (Opinion, p. 5). The appellate court then went on to say
that “there was no evidence before the trial court at the time of the ruling that
[Petitioner’s] conversation continued for any length of time after the recording cut
11
off or that any statements were subsequently made that would call into question the
accuracy of the nearly hour-long recorded conversation.” (Opinion, p. 5). Having
cited Weatherred, the court of appeals ignored a boat-load of evidence that was
before the trial judge at the time it decided to allow the butchered audio recording
into evidence. First, Petitioner’s counsel made the following objection to the
admissibility of the audio tape before the trial judge admitted the tape.
Defense Counsel:
So, we have a section or segment of her statement that the jury will not hear;
because either advertent or inadvertent, it was destroyed or is missing. So
what would happen is if you offer the statement, you would only be offering
a part of her statement.
(RR. V. p.85; lines 3-8).
Secondly, Petitioner’s counsel was joined by the prosecuting attorney in
informing the trial court that the recorder stopped during the interrogation and that
the police continued to question Petitioner for an extended period of time. The
State’s attorney was forced to concede told the trial judge the following facts
before her ruling:
Prosecutor:
At the end of the second statement, if you will, if you want to say it’s two
different statements, although it’s one, the video – or the audio shuts down
and it cuts off, and that’s the end. And if you talk to the officer, the officer
will tell you, I believe that we continued to speak more, but the video
recording was so bad that we just didn’t start back up. So there is no part
of the defendant’s statement that exists that’s not going to be played. There
is some statements that she made that were not recorded, therefore, not
admissible.
12
(RR. V, p. 87; lines 14-24).
Additionally, later on, the State’s attorney went on to reemphasize exactly
where the unrecorded portion of Petitioner’s statement was located:
Prosecutor:
And the statutory warnings are repeated at the start of the second recording,
if you will. Now the second recording stops, as well; but they don’t pick
up from that point in time. They just leave it as it is.
(RR. V, p. 89; lines 13-17).
Prosecutor:
The entire statement that is in the possession of the State is going to come
into the trial. And we are not going to ask any questions about anything
that was said off the tape, only the things that were recorded.
(RR. V, pp. 89-90).
Finally, the State even told the trial judge that the police questioned
Petitioner for twenty minutes and none of that portion of her statement was
recorded.
Prosecutor:
I’m not going to say, what did she say in that twenty minutes before you
found out that the tape was shut down?
(RR. V; p. 87; lines 10-12).
Furthermore, Petitioner even warned the trial court that that the twenty-
minutes of missing recording contained “exculpatory evidence”. (RR. Vol. 5, p.
85). Petitioner also expressed her concerns that were the trial court to admit the
butchered audio tape, it would create an impression that was “non-favorable to the
13
defendant.” (RR. Vol 5, p. 85). In spite of Petitioner’s objections, the trial court
admitted the butchered audio tape and allowed the jury to hear it. (RR. Vol. 5, pp.
90-92, 97).
The appellate court misapplied Weatherred because the record shows that
the trial court had plenty of evidence before its ruling that the recording device was
not capable of making an accurate recording and that the twenty minutes of
unrecorded interrogation contained exculpatory evidence. The appellate court’s
reliance on Weatherred was also misplaced because in Weatherred this Court
judged the propriety of a trial court’s ruling to exclude a party’s expert testimony.
15 S.W.3d at 542. This Court first noted that the burden was on the proponent of
scientific evidence to show by clear and convincing proof that the evidence is
relevant and reliable to assist the jury in understanding other evidence. Id. The
appellant had attempted to carry that “considerable burden” by simply offering the
expert’s testimony and nothing else. Id. The appellate had failed to offer any
evidence that his proffered expert could name any of his own studies that he had
allegedly conducted extensive research on, researchers, or writings in question. Id.
In upholding the trial court’s ruling excluding the expert’s testimony this Court
said:
[G]iven what the trial court had before it at the time it rules, it could have
reasonably concluded that appellant failed to carry his burden of showing
that the proffered expert testimony was scientifically reliable.
14
Id. at 543.
g. The Court of Appeals misapplied Weatherred because the burden
of proving that the audio recording met the statutory
requirements was on the State and the State failed to carry this
burden.
Here, the State had the burden of proving that the audio recording of
Petitioner’s custodial interrogation met the strict requirements of section three of
art. 38.22. Petitioner pointed out to the trial court that the recording failed to meet
the requirements under art. 38.22 and supported it with evidence before the trial
court made its ruling. (RR. V, p. 87; lines 14-24; RR. V, p. 89; lines 13-17; RR. V,
pp. 89-90; RR. V; p. 87; lines 10-12). The circumstances in Weatherred are simply
not analogous to that in this case. At the time of its ruling on the admissibility of
the evidence, the trial judge in Weatherred had virtually nothing before it that
would show that the proffered expert testimony was scientifically reliable. Id. at
543. On the other hand, in our case, before making her ruling, the trial judge had
indisputable evidence from the proponent of the custodial interrogation, the State,
that the recording device failed to record twenty minutes of Petitioner’s interview.
This fact alone meant that the trial judge knew before her ruling that the recording
device was incapable of making an accurate recording and that the recording was
not accurate.
15
CONCLUSION
The trial judge abused her discretion by admitting the audio tape recording
since it was not accurate and not complete. The statement failed to conform to the
strict requirements of art. 38.22 §3(a). The jury’s verdict was adversely impacted
by the error. The error also affected a substantial right of Petitioner.
PRAYER
WHEREFORE, PRMISES CONSIDERED, Petitioner asks this Court to
reverse the conviction and acquit her. In the event the Court finds that the trial
court committed reversible error, Petitioner asks that this Court reverse her
conviction and remand to the trial court for a new trial.
Respectfully submitted,
THE WILKINS LAW FIRM, P. C.
4606 San Jacinto St.
Houston, Texas 77004
Telephone: (713) 660-9200
Telecopier: (713) 550-0559
E-mail: rwilkins@jmaldonadolaw.com
E-mail: julia@jmaldonadolaw.com
By: /s/ Ralphaell V. Wilkins
Ralphaell V. Wilkins
SBN: 21487600
Julia A. Maldonado
SBN: 24007591
ATTORNEYS FOR PETITIONER
16
CERTIFICATE OF SERVICE
I hereby certify that a true and correct copy of the above and foregoing
document has been sent via electronic mail, certified return requested mail, this
30th day of September 2015, to the following counsel of record:
Daniel McCrory, Esq.
Joshua Phanco, Esq.
Donna Logan, Esq.
Harris County District Attorney’s Office
1201 Franklin Street
Houston, Texas 77002
Hon., Maria T. Jackson
339th District Court
Harris County, TX
1201 Franklin, 14th Floor
Houston, Texas 77002
/s/ Ralphaell V. Wilkins
Ralphaell V. Wilkins
17
CERTIFICATE OF COMPLIANCE
Pursuant to proposed Rule 9.4(i)(3), undersigned counsel certifies that this
brief complies with the type-volume limitations of Tex. R. App. Proc. 9.4(e)(i).
1. Exclusive of the portions exempted by Tex. R. App. Proc. 9.4(e)(i), this brief
contains 2,533 words printed in a proportionally spaced typeface.
2. This brief is printed in a proportionally spaced, serif typeface using Times
New Roman 14 point font in text and Times New Roman 12 point font in footnotes
produced by Microsoft Word Software.
3. Upon request, undersigned counsel will provide an electronic version of this
brief and/or copy of the word printout to the Court.
4. Undersigned counsel understands that a material misrepresentation in
completing this certificate, or circumvention of the type-volume limits in Tex. R.
App. Proc. 9.4(j), may result in the Court’s striking this brief and imposing
sanctions against the person who signed it.
/s/ Ralphaell V. Wilkins
Ralphaell V. Wilkins
18
APPENDIX TO PETITION FOR REVIEW
Accompanying this petition for review is a record that contains the
following document, which is incorporated herein by reference.
TITLE OF DOCUMENT TAB
1. Court of Appeals for the First District of Texas Opinion……………….. 1
19