ACCEPTED
13-15-00089-CR
THIRTEENTH COURT OF APPEALS
CORPUS CHRISTI, TEXAS
7/10/2015 1:33:38 PM
CECILE FOY GSANGER
CLERK
No. 13-15-00089-CR
* * * * * * * * * * * * * * * * * * * * * * * *FILED
* *IN* *
13th COURT OF APPEALS
IN THE COURT OF APPEALS CORPUS CHRISTI/EDINBURG, TEXAS
THIRTEENTH DISTRICT 7/10/2015 1:33:38 PM
CORPUS CHRISTI, TEXAS CECILE FOY GSANGER
Clerk
****************************
ROBERTO SAVEDRA,
APPELLANT
V.
THE STATE OF TEXAS,
APPELLEE
****************************
On Appeal from Cause No. 99-4-6124
in the 24th Judicial District Court
of Jackson County, Texas
****************************
STATE’S REPLY BRIEF
****************************
ROBERT E. BELL
District Attorney
State Bar Card No. 02086200
Jackson County Courthouse
115 West Main Street
Edna, Texas 77957
JIM VOLLERS
State Bar Card No. 20609000
2201 Westover Road
Austin, Texas 78703
ATTORNEYS FOR THE STATE
i
IDENTITY OF PARTIES AND COUNSEL
1. Robert E. Bell
Criminal District Attorney, Jackson County
State Bar Card No. 02086200
Jackson County Courthouse
115 West Main Street
Edna, Texas 77957
Email: ef_mitchell@yahoo.com
Jim Vollers
Attorney at Law
State Bar Card No. 20609000
2201 Westover Road
Austin, Texas 78703
Email: jimvollers@att.net
Attorneys for the State
2. Roberto Savedra
Appellant
3. Ralph R. Martinez
Attorney at Law
State Bar Card No.13143600
2900 Woodridge, Suite 202
Houston, Texas 77087
Email: ralis994@aol.com
Attorney for Appellant
4. Honorable Stephen Williams, District Judge
24th Judicial District Court, Jackson County Courthouse
115 West Main Street
Edna, Texas 77957
Email: kwilliams@cscd.net
Trial Judge
ii
TABLE OF CONTENTS
PAGE
IDENTITY OF PARTIES AND COUNSEL . . . . . . . . . . . . . . . . . ii
TABLE OF CONTENTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iii
INDEX OF AUTHORITIES . . . . . . . . . . . . . . . . . . . . . . . . . . . v
STATEMENT OF THE CASE . . . . . . . . . . . . . . . . . . . . . . . . . . 2
STATEMENT OF FACTS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
APPELLANT’S ASSIGNMENT OF ERROR NUMBER ONE
(RESTATED). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
WHETHER APPELLANT’S STATEMENT TO OFFICER
PAT BRENNAN AND CONSENTS TO SEARCH AND
MOVE HIS VEHICLE WERE OBTAINED AS A RESULT
OF AN ILLEGAL PROLONGED DETENTION
ARGUMENT AND AUTHORITIES . . . . . . . . . . . . . . . . . . . . . . 6
CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
APPELLANT’S ASSIGNMENT OF ERROR NUMBER TWO
(RESTATED). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
WHETHER THE SEARCH OF APPELLANT’S VEHICLE
WAS ILLEGAL FOR FAILURE OF POLICE TO GIVE
APPELLANT HIS MIRANDA WARNINGS PRIOR TO
SECURING APPELLANT’S CONSENTS TO SEARCH
HIS VEHICLE
ARGUMENT AND AUTHORITIES . . . . . . . . . . . . . . . . . . . . . . 15
iii
APPELLANT’S ASSIGNMENT OF ERROR NUMBER THREE
(RESTATED). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
WHETHER THE CONSENTS GIVEN BY APPELLANT
TO SEARCH HIS VEHICLE AND MOVE HIS VEHICLE
TO ANOTHER LOCATION WERE KNOWINGLY AND
VOLUNTARILY GIVEN
ARGUMENT AND AUTHORITIES . . . . . . . . . . . . . . . . . . . . . . 16
APPELLANT’S ASSIGNMENT OF ERROR NUMBER FOUR
(RESTATED). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
WHETHER THE STATEMENTS APPELLANT GAVE TO
OFFICER PAT BRENNAN WERE INVOLUNTARILY
OBTAINED IN VIOLATION OF TEXAS CODE OF
CRIMINAL PROCEDURE ARTICLE 38.21 AND 38.22,
THE FIRTH AMENDMENT OF THE UNITED STATES
CONSTITUTION, AND ARTICLE I §10 OF THE
TEXAS CONSTITUTION
ARGUMENT AND AUTHORITIES . . . . . . . . . . . . . . . . . . . . . 18
CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
CERTIFICATE OF SERVICE . . . . . . . . . . . . . . . . . . . . . . . . . 20
CERTIFICATE OF COMPLIANCE . . . . . . . . . . . . . . . . . . . . . . 21
iv
INDEX OF AUTHORITIES
CASES: PAGE
Gillenwaters v. State, 205 S.W.3d 534, 537
(Tex.Crim.App. 2006) . . . . . . . . . . . . . . . . . . . . . . . . . 7
Juarez v. State, 758 S.W.2d 772, 781, n.5
(Tex.Crim.App. 1988) . . . . . . . . . . . . . . . . . . . . . . . . . 13
Kothe v. State, 152 S.W.3d (Tex.Crim.App. 2004) . . . . . . . . 13
Lankston v. State, 827 S.W.2d 907, 909
(Tex.Crim.App. 1992) . . . . . . . . . . . . . . . . . . . . . . . . . 8
Layton v. State, 280 S.W.3d 235 (Tex.Crim.App. 2009) . . . . 7
Neal v. State, 150 S.W.3d 169, 178 (Tex.Crim.App. 2004) . . 8
Rodriguez v. United States, 135 S.Ct. 1609 . . . . . . 9, 10, 12, 13
Schneckloth v. Bustamonte, 412 U.S. 218 . . . . . . . . . . . . 13
Zillender v. State, 557 S.W.2d 515, 517
(Tex.Crim.App. 1977) . . . . . . . . . . . . . . . . . . . . . . . . . 8
TEXAS RULES OF APPELLATE PROCEDURE:
Rule 33.1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Rule 33.1(a)(1)(A). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
TEXAS RULES OF EVIDENCE:
Rule 103(a)(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
v
NO. 13-15-00089-CR
IN THE COURT OF APPEALS
THIRTEENTH DISTRICT
CORPUS CHRISTI, TEXAS
****************************
ROBERTO SAVEDRA,
APPELLANT
V.
THE STATE OF TEXAS,
APPELLEE
****************************
On Appeal from Cause No. 99-4-6124
in the 24th Judicial District Court
of Jackson County, Texas
****************************
STATE’S REPLY BRIEF
****************************
TO THE HONORABLE JUSTICES OF THE COURT OF APPEALS:
COMES NOW, THE STATE OF TEXAS, appellee herein, and
files this, its reply brief herein, and would show unto the Court the
following:
1
STATEMENT OF THE CASE
Appellant was charged by indictment with possession of
marijuana in an amount between five and 50 pounds. On February
17, 2015, appellant waived a jury and was tried before the court
upon his plea of not guilty. Appellant had filed two motions to
suppress and they were carried along with the trial. At the
conclusion of the evidence, the court overruled both motions based
upon evidence presented at trial and found appellant guilty of
possession of marijuana and assessed his punishment at six years
confinement in the Texas Department of Criminal Justice.
STATEMENT OF FACTS
This was a trial before the court conducted on February 17,
2015, for an offense committed on February 16, 1999. On that date
Trooper Frank Rios of the Texas Department of Public Safety, while
on routine patrol, observed appellant driving a 1981 Dodge pickup
that was pulling a trailer that did not have a front license plate on the
vehicle, did not have a left outside rearview mirror that was required
when pulling a trailer, and had a defective muffler that sometimes
struck the pavement under the pickup R. (Vol. 2, pp. 10-18). When
2
Trooper Rios made the routine traffic stop, appellant exited the
vehicle at Trooper Rios’ request and produced a Louisiana driver’s
license before he was requested to do so (R. Vol. 2, p. 12). Rios
became suspicious when appellant would not look him in the eye
when he talked to him and appeared to be more nervous than
usually occurred for a routine traffic stop for minor violations (R. Vol.
2, p. 13). Appellant identified the passenger as his wife. Rios asked
appellant and his wife routine questions such as where they were
coming from, where they were going and the purpose of the trip.
Because of appellant’s reactions and the conflict in answers between
appellant and his wife, Rios became increasingly suspicious that the
situation involved more than a routine traffic stop (R. Vol. 2, pp. 16-
17). Rios then requested appellant’s consent to conduct a search of
the vehicle and the trailer. Appellant consented to the search. This
request and consent occurred only about two or three minutes
maybe four after the initial traffic stop was made (R. Vol. 2, p. 35)
and before Rios had concluded such matters as conducting a routine
check of the vehicle license and writing a ticket for the offenses he
observed (R. Vol. 2, pp. 29-34).
3
When Rios looked under appellant’s vehicle, he noticed two
non-factory welds on the drive shaft yoke and indications that certain
bolts connecting the drive shaft had been disturbed. Rios became
suspicious that the drive shaft which was about four inches wide and
hollow contained contraband, even though when he tapped on it it
sounded hollow, because of his observation that the bolts had been
disturbed but the universal joint had not been replaced. He again
asked appellant’s permission and consent to remove the vehicle to a
garage because he needed further tools to conduct the search (R.
Vol. 2, pp. 17-19). Appellant consented and agreed to follow Rios to
a garage in Ganado. Once he got there, Rios again asked for
permission to continue the search and appellant granted consent (R.
Vol. 2, pp. 19-20). Rios then drilled an inspection hole into the drive
shaft, hit another pipe, continued to drill and found that it contained
a “green substance that smelled like unburnt marijuana.” Then the
drive shaft was taken apart and found to contain 9.60 pounds of
marijuana (R. Vol. 2, p. 21).
After the discovery of the marijuana, appellant was interviewed
by Sergeant Pat Brennan and told Sergeant Brennan that he,
4
appellant, actually put the marijuana in the drive shaft (R. Vol. 2, pp.
23-24). Pat Brennan, who was a sergeant investigator with
Department of Public Safety Narcotics Service, sponsored the
introduction of State’s Exhibit 8 which was a taped interview with
appellant, which was played to the court. This exhibit included
Brennan’s explanation of appellant’s rights and warnings to appellant
along with his waiver of his right to counsel and his confession (R.
Vol. 2, pp. 46-48).
The State further proved that appellant skipped bail on this
charge. The bond was forfeited and appellant was later arrested for
a different traffic offense on April 7, 2014 and returned to Jackson
County for trial (R. Vol. 2, pp. 51-56).
At the conclusion of the evidence, the trial court stated:
“The motion to suppress statements and the motion to
suppress evidence are denied and I’ve signed the orders
to that effect. I do find that there was probable cause for
the stop, that the Trooper received consent for the
subsequent searches and as to the statement I find it was
voluntary and that he had been properly admonished.”
(R. Vol. 1, p. 59)
Prior to this ruling by the trial court, appellant had objected to
State’s Exhibit 8 only on the grounds stated in his pretrial motion (R.
5
Vol. 1, p. 47) and in his argument to the court immediately prior to
the ruling which might be construed as objections (R. Vol. 2, pp. 58-
59).
APPELLANT’S ASSIGNMENT OF ERROR NUMBER ONE
(RESTATED)
WHETHER APPELLANT’S STATEMENT TO OFFICER PAT
BRENNAN AND CONSENTS TO SEARCH AND MOVE HIS
VEHICLE WERE OBTAINED AS A RESULT OF AN ILLEGAL
PROLONGED DETENTION.
ARGUMENT AND AUTHORITIES
As set forth in his Assignment of Error Number One, appellant’s
complaint is that appellant’s consents to search and his statement to
Officer Brennan were tainted by “an illegal prolonged detention.”
Examination of this record reveals that this issue was not preserved
for review.
Appellant filed two motions to suppress in this cause. One,
titled “Motion to Suppress Statements,” containing five allegations,
none of which mention that his statement was tainted by “an illegal
prolonged detention” resulting from a traffic stop. In his motion
titled “Motion to Suppress Evidence,” appellant alleged that he was
6
“illegally stopped by officers” and the traffic stop and seizure was
made in violation of the Fourth Amendment of the United States
Constitution.” Nowhere does it suggest that there was an “illegal
prolonged detention.”
Rule 33.1 of the Texas Rules of Appellate Procedure specifically
provides that as a prerequisite to presenting a complaint for appellate
review the record must show that “the complaint was made to the
trial court by a timely request, objection, or motion” that stated the
grounds for the ruling that the complainant 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;” and the trial court ruled on the request, objection or
motion, either expressly or implicitly.
It was pointed out in Layton v. State, 280 S.W.3d 235
(Tex.Crim.App. 2009), “In order to preserve an issue for appellate
review, a timely and specific objection is required. TEX.R.APP.
P. 33.1(a)(1)(A); TEX.R. EVID. 103(a)(1); Gillenwaters v. State, 205
S.W.3d 534, 537 (Tex.Crim.App.2006). A specific objection is
necessary to inform the trial judge of the issue and basis of the
7
objection, and to allow the judge a chance to rule on the issue at
hand. Neal v. State, 150 S.W.3d 169, 178 (Tex.Crim.App.2004),
citing Zillender v. State, 557 S.W.2d 515, 517 (Tex.Crim.App.1977).
As we stated in Lankston v. State, 827 S.W.2d 907, 909
(Tex.Crim.App.1992), ‘all the party has to do to avoid the forfeiture
of a complaint on appeal is to let the trial judge know what he wants,
why he thinks he is entitled to it, and to do so clearly enough for the
judge to understand him at a time when the trial court is in a proper
position to do something about it.’” (280 S.W.3d 239). This record
fails to reveal that appellant voiced any further objection in the bench
trial in this cause that would indicate to the trial judge that his
request for relief was based upon the illegality of a “prolonged
detention.” He simply did not let the trial judge know what he
wanted and why he thought he was entitled to it clearly enough for
the judge to understand him at the time when the trial court was in a
position to do something about it. It is therefore respectfully
submitted that this point of error was not preserved for review.
Even if this Court feels that this issue has been preserved, it is
clearly without merit.
8
It appears that the manner in which the issue is presented
herein the main issue to be decided is whether or not appellant was
subjected to an improperly prolonged detention after a proper traffic
stop. Appellant relies rather strongly upon Rodriguez v. United
States, 135 S.Ct. 1609. The State respectfully submits that
Rodriguez is inapplicable because the court clearly states that the
question presented in that case was “whether the Fourth Amendment
tolerates a dog sniff conducted after completion of a traffic stop.”
(Emphasis added). In Rodriguez the facts relied upon by the
Supreme Court revealed that a traffic stop was made at 12:06 a.m.
and by 12:27 or 12:28 a.m. the officer had finished explaining the
warning to Rodriguez and had given him back the documents
obtained from him. At that point Rodriguez had all of his documents
back and a copy of the written warning and the officer had gotten all
of the reasons for the stop out of the way. Nevertheless, he did not
consider Rodriguez “free to leave,” although justification for the
traffic stop was out of the way, the officer asked Rodriguez for
permission to walk his dog around the vehicle. Rodriguez said no.
The officer then instructed Rodriguez to turn off the ignition, exit the
9
vehicle and stand in front of the patrol car to wait for a second officer
to arrive. Rodriguez complied and at 12:33 another deputy sheriff
arrived and the dog was lead twice around Rodriguez’s vehicle. The
dog alerted to drugs and a search of the vehicle was conducted. The
Supreme Court then concluded that the police may not “routinely”
extend an otherwise completed traffic stop, absent reasonable
suspicion, in order to conduct the dog sniff. The court went on to
note that the court of appeals did not review the determination of
whether or not the detention of Rodriguez for the dog sniff “was not
independently supported by individualized suspicion” and went on to
hold that “the question whether reasonable suspicion of criminal
activity justified detaining Rodriguez beyond completion of the traffic
infraction investigation, therefore, remains open for Eighth Circuit
consideration on remand.”
From this, it is perfectly clear that if there is a reasonable
suspicion to suspect that there are other violations, the detention is
justified. It therefore appears that in the Rodriguez case the
holding of the court that requires that a traffic stop end “when tasks
tied to the traffic infraction are – or reasonably should have been –
10
completed” specifically left the question open as to whether a
reasonable suspicion of criminal activity justified detaining the
completion of the traffic infraction investigation. In the instant case,
the officer who made the traffic stop developed a reasonable
suspicion of criminal activity within a couple of minutes by reason of
the conduct of appellant and the conflicting answers to questions
posed between appellant and his wife. When appellant gave his
voluntary permission for Rios to search his vehicle, Rios was acting
not only on a reasonable suspicion of criminal activity but also on
voluntary consent by the owner of the vehicle to conduct a search.
Then, upon searching the vehicle, Rios concluded, based upon what
he saw and upon his experience, that there was not only a more
reasonable suspicion of criminal activity but a reasonable belief by
Rios that contraband was contained in the drive shaft of the vehicle.
Since Officer Rios developed a reasonable suspicion of criminal
activity within two or three minutes after stopping appellant and
immediately asking appellant for permission to conduct a search,
which was voluntarily granted by appellant, there was no “routine”
extension of the traffic stop because Rios was acting both upon his
11
reasonable suspicion and upon appellant’s voluntary grant of
permission for Rios to search the automobile. Under these
circumstances, appellant is certainly misplacing his reliance upon
Rodriguez, supra. It should be noted that the only evidence that
appellant’s consent to search was voluntary was offered by the State
and certainly support the trial court’s finding that appellant
voluntarily consented to the search. Also, it should be noted that
allegations in this brief by appellant that he was “continuously
interrogated” and “aware his wife was interrogated” and “was
restrained knowing his wife would be arrested” (Brief, p. 15) are
without any support in this record and clearly are simply figments of
appellant’s imagination. Appellant’s statement in his brief that he
was “not allowed to consult family or counsel” is also without support
in this record.
Appellant also complains that his consent to the searches was
involuntary because he was given no Miranda warning prior to the
consent. While there were a number of cases observing that a
Miranda warning is good police procedure, appellant cites none that
says that it is necessary in order to make the consent to search
12
voluntary. As a matter of fact, it has been held that police need not
inform a person of his right to refuse to consent to a search.
Schneckloth v. Bustamonte, 412 U.S. 218; Juarez v. State, 758
S.W.2d 772, 781, n.5 (Tex.Crim.App. 1988). If there is no
requirement that a person must be warned of his right to refuse to
consent to a search, there certainly is no requirement that a
Miranda warning is necessary in order to make a consent to search
voluntary. Appellant’s assertion that there was an illegal prolonged
detention is without merit and his reliance upon Rodriguez simply is
inappropriate.
Actually this situation is more similar to the situation faced in
Kothe v. State, 152 S.W.3d 54 (Tex.Crim.App. 2004) where the
court was considering the problem of whether an officer’s continued
detention was “reasonable” under the circumstances. In addressing
the issue the court pointed out that in assessing a legal issue, the
appellate court should give great deference to the trial court’s
findings of historical fact; however, questions involving legal
principles and the application of law to established facts are properly
reviewed de novo. Thus, in deciding whether the officer’s continued
13
detention was “reasonable” under the specific circumstances, the
court would review the trial court's factual findings in the light most
favorable to its ruling, but decide the issue of “reasonableness” as a
question of Fourth Amendment law under Supreme Court precedent,
viewing the totality of the circumstances in the light most favorable
to the trial court's factual findings. It concluded that the officer’s
decision to return to his vehicle and simply wait a few minutes for the
warrant-check results before releasing the defendant was
“reasonable” as a matter of substantive Fourth Amendment law.
Here the officer was acting reasonably as a matter of substantive
Fourth Amendment law by delaying release of appellant based upon
appellant’s voluntary consent to search the vehicle as well as the
officer’s reasonable suspicion that a criminal act was being
committed by appellant.
CONCLUSION
Since there was no illegal detention, there is simply no
necessity to examine whether or not the consent to search and
voluntariness of his statement were impacted by an illegal detention.
14
This assignment of error is not supported by the record or the
legal authority relied upon and is without merit.
APPELLANT’S ASSIGNMENT OF ERROR NUMBER TWO
(RESTATED)
WHETHER THE SEARCH OF APPELLANT’S VEHICLE WAS
ILLEGAL FOR FAILURE OF POLICE TO GIVE APPELLANT HIS
MIRANDA WARNINGS PRIOR TO SECURING APPELLANT’S
CONSENTS TO SEARCH HIS VEHICLE.
ARGUMENT AND AUTHORITIES
While appellant complains only of the failure to give Miranda
warnings in his point of error, he argues also that consent by
appellant to search his vehicle was improper because of an extended
investigation after a traffic stop of matters not involved in the traffic
stop. First of all, it is noted that this second contention is not within
the scope of appellant’s assignment of error, and neither of these
contentions are preserved for review because appellant made no
specific objection to these issues in the trial court.
Since the issue of preservation of these errors and the
substance of appellant’s arguments have been addressed in the
argument and authorities under Appellant’s Assignment of Error
Number One, the State simply adopts its answer to Appellant’s
15
Assignment of Error Number One as its response to the Assignment
of Error Number Two.
As shown in the previous argument and authorities, Appellant’s
Assignment of Error Number Two is without merit and should be
overruled.
APPELLANT’S ASSIGNMENT OF ERROR NUMBER THREE
(RESTATED)
WHETHER THE CONSENTS GIVEN BY APPELLANT TO SEARCH
HIS VEHICLE AND MOVE HIS VEHICLE TO ANOTHER
LOCATION WERE KNOWINGLY AND VOLUNTARILY GIVEN.
ARGUMENT AND AUTHORITIES
Again, it is respectfully submitted that this record does not
contain specific objections, either in his motions to suppress or the
trial to the issues which he argues in this assignment of error. The
argument and authorities offered by the State under Appellant’s
Assignment of Error Number One on this issue are adopted herein as
a response to the allegations contained in Assignment of Error
Number Three.
If the Court feels that this issue has been preserved for review,
it is respectfully submitted that the trial judge’s finding that “the
16
Trooper received consent for the subsequent searches” (R. Vol. 2, p.
59) carries with it the implicit finding by the trial court that the
consents to search given by appellant were voluntary. The only
testimony admitted on this issue was offered by the State indicating
that appellant knew and understood what he was doing and
consented to the searches. Appellant offered absolutely no evidence
of any sort that the searches were not voluntary. The evidence in
this cause contains no suggestion whatsoever that the trial judge
abused his discretion in finding that the consents to search were
voluntary.
It is respectfully suggested that this issue is not properly
preserved for review, and if it had been, the trial court did not abuse
its discretion in overruling any objection on this issue which might
have been made by appellant.
APPELLANT’S ASSIGNMENT OF ERROR NUMBER FOUR
(RESTATED)
WHETHER THE STATEMENTS APPELLANT GAVE TO OFFICER
PAT BRENNAN WERE INVOLUNTARY OBTAINED IN
VIOLATION OF TEXAS CODE OF CRIMINAL PROCEDURE
ARTICLE 38.21 AND 38.22, THE FIFTH AMENDMENT OF THE
UNITED STATES CONSTITUTION, AND ARTICLE I §10 OF THE
TEXAS CONSTITUTION.
17
ARGUMENT AND AUTHORITIES
Since this issue is basically the same as that set forth in
Appellant’s Assignment of Error Number Three, the State simply
adopts the argument and authorities made in Appellant’s Assignment
of Error Number Three in response to these allegations.
It is respectfully submitted that the question presented by
appellant was not preserved for appellate review, and if it had been
properly preserved it is without merit.
Appellant’s primary argument is that his “inability to
comprehend English and the interviewer Pat Brennan’s inability to
speak Spanish” made the interview presumptively involuntary to
support appellant’s contention that this issue was raised. The record
reveals an unsworn statement by his counsel to the court that
appellant “keeps speaking to me in Spanish and says he can’t speak
English” (R. Vol. 2, p. 6), and the unsworn response by appellant
when asked if he could speak English was “Not too much.” (R. Vol.
2, p. 6). The record reveals that both the arresting officer and the
officer who took the statement from appellant testified that appellant
did understand English and understood the Miranda warnings which
18
were given. In addition to this, the trial court had the opportunity to
hear a 15-minute interview in order to judge appellant’s capacity to
understand exactly what was going on. This record is before this
Court and it includes the recording which the State feels shows
appellant’s ability to speak English and his understanding of all that
occurred. It is respectfully submitted that this evidence certainly
supports the fact that the trial court did not abuse its discretion in
determining that appellant did understand English and that his
confession was voluntary.
This assignment of error is without merit and should be
overruled.
CONCLUSION
WHEREFORE, PREMISES CONSIDERED, it is respectfully
submitted that the record in this cause reveals that appellant’s
complaints are completely without merit and that the judgment of
the trial court should be in all things affirmed.
19
Respectfully submitted,
Robert E. Bell
District Attorney
State Bar Card No. 02086200
Jackson County Courthouse
115 W. Main Street
Edna, Texas 77957
/s/ Jim Vollers_______________
Jim Vollers
State Bar Card No. 20609000
2201 Westover Road
Austin, Texas 78703
ATTORNEYS FOR THE STATE
CERTIFICATE OF SERVICE
I hereby certify that on this the 10th day of July, 2014, a true
and correct copy of the foregoing was served electronically through
the electronic filing manager on the party listed below:
Ralph R. Martinez, Attorney at Law, 2900 Woodridge, Suite
202, Houston, Texas 77087, Attorney for Appellant, at
ralis994@aol.com.
Robert E. Bell, District Attorney, Jackson County Courthouse,
115 West Main Street, Edna, Texas 77957, Attorney for Appellee, at
ef_mitchell@yahoo.com.
Judge Stephen Williams, District Judge, 24th Judicial District
Court, 115 West Main Street, Edna, Texas 77957, at
kwilliams@cscd.net.
20
If the email of the party or attorney to be served was not on
file with the electronic filing manager, the pleading was served by
email.
/s/ Jim Vollers
Jim Vollers
CERTIFICATE OF COMPLIANCE
I certify that this document contains 5,106 words (counting all
parts of the document).
/s/ Jim Vollers________________
Jim Vollers
2201 Westover Rd.
Austin, Texas 78703
(512) 478-6846
SBN 20609000
JimVollers@att.net
COUNSEL OF RECORD
21