ACCEPTED
13-14-00661-CR
THIRTEENTH COURT OF APPEALS
CORPUS CHRISTI, TEXAS
12/3/2015 3:10:39 PM
Dorian E. Ramirez
CLERK
CAUSE NO. 13-14-00661-CR
***********************************
FILED IN
IN THE COURT OF APPEALS 13th COURT OF APPEALS
CORPUS CHRISTI/EDINBURG, TEXAS
THIRTEENTH JUDICIAL DISTRICT OF TEXAS
12/3/2015 3:10:39 PM
CORPUS CHRISTI - EDINBURG, TEXASDORIAN E. RAMIREZ
*********************************** Clerk
ELIAS GAITAN,
Appellant,
v.
THE STATE OF TEXAS,
Appellee.
**********************************
STATE'S APPELLATE BRIEF
ON APPEAL FROM CAUSE NO. 2014-DCR-955-E
IN THE 357TH JUDICIAL DISTRICT COURT
CAMERON COUNTY, TEXAS
***********************************
Luis V. Saenz
County and District Attorney
Cameron County, Texas
Kristine N. Trejo
Assistant District Attorney
Cameron County, Texas
State Bar No. 24091764
964 E. Harrison St.
Brownsville, Texas 78520
Tel: (956) 544-0849
Fax: (956) 544-0869
Counsel for the State
ORAL ARGUMENT REQUESTED
Statement Regarding Oral Argument
Appellant has requested oral argument pursuant to Tex. R. App. P. 39.1
stating that the facts and legal arguments as to the issues presented herein would be
significantly clarified by oral argument. The State requests oral argument as well.
Identification of the Parties
Counsel for the State of Texas – Appellee:
Cameron County District Attorney:
Luis V. Saenz
964 E. Harrison St.
Brownsville, Texas 78520
Appellate Assistant District Attorney:
Kristine N. Trejo
Rene Gonzalez
Trial Court Assistant District Attorneys:
Brandy Bailey
Luis De La Garza
Counsel for Elias Gaitan – Appellant:
Trial Court Attorneys:
Rebecca Rubane,
847 E. Harrison
Brownsville, Texas 78520
Appellate Attorney:
Joseph Moreno
23409 El Paso Dr.,
Harlingen, Texas 78552
Trial Court Judge, 357TH Judicial District, Cameron County, Texas:
Hon. Oscar X. Garcia
i
Table of Contents
Page
Statement Regarding Oral Argument ................................................................. i
Identification of the Parties ................................................................................ i
Table of Contents .............................................................................................. ii
Index of Authorities ......................................................................................... iii
Statement of the Case ....................................................................................... iv
Statement of the Facts ........................................................................................ 2
Summary of the Argument ................................................................................. 6
Argument ........................................................................................................... 8
A. The trial court was correct when it refused to suppress the second two
statements of Appellant because they were not the product of continued
questioning after Appellant requested assistance of counsel………………..8
B. Trial counsel did not provide ineffectivence assistance of counsel when she
failed to object to previously excluded evidence……………………………..17
Prayer ............................................................................................................... 22
Certificate of Compliance ................................................................................ 23
Certificate of Service ....................................................................................... 23
ii
Index of Authorities
Page:
I. Cases
Federal
Edwards v. Arizona, 451 U.S. 477 (1981) …………….………………...................7
McMann v. Richardson, 397 U.S 759 (1970)……. ................................................... 7
Powell v. Alabama, 287 U.S. 45 (1932)……..………………………………..........7
Rhode Island v. Innis, 446 U.S. 291 (1980) ............................................................... 7
Strickland v. Washington, 466 U.S. 668 (1984) ........................................................ 7
United States v. Singh, 261 F.3d 530 (5th Cir.2001).................................................7
State
Amador v. State, 221 S.W. 3d 666 (Tex. Crim. App. 2007)………………………..8
Ancira v. State, 516 S.W.2d 924 (Tex. Crim. App. 1974)....................................... 11
Armendariz v. State, 123 S.W. 3d 401 (Tex. Crim. App. 2003), cert. denied, 541
U.S. 974 (2004)…………………………………………………………………….9
Baldree v. State, 784 S.W.2d 676 (Tex.Crim.App.1989)…………….………15, 17
Best v. State, 118 S.W. 3d 857 (Tex. App—Fort Worth 2003, no pet.)…………...8
Cates v. State, 776 S.W.2d 170 (Tex.Crim.App.1989)……………………….10, 11
Chambliss v. State, 647 S.W.2d 257 (Tex.Crim.App.1983)………………………10
Garcia v. State, 57 S.W. 3d 475 (Tex. Crim. App. 2001)………………………...19
Guzman v. State, 955 S.W. 2D 85 (Tex. Crim. App. 1997)……………………..…8
Henson v. State, 794 S.W. 2d 385 (Tex. Crim App. 1990)…………………...11, 12
Holloway v. State, 780 S.W.2d 787 (Tex.Crim.App.1989)……………….………15
Janecka v. State, 739 S.W. 2d 813 (Tex. Crim. App. 1987)…………….………..16
iii
Jones v. State, 795 S.W.2d 171 (Tex.Crim.App.1990)……………...……………16
Mata v. State, 226 S.W. 3d 425 (Tex. Crim. App. 2007)…………………………19
McCrory v. State, 643 S.W.2d 725 (Tex.Crim.App.1982)……………………10, 11
Paez v. State, 681 S.W.2d 34 (Tex.Crim.App.1984)……………………………...10
Roberston v. State, 187 S.W. 3d 475 (Tex. Crim. App. 2006)………………..18, 19
Romero v. State, 800 S.W. 2d 539 (Tex. Crim. App. 1990)………………………..8
Shiflet v. State, 732 S.W.2d 622 (Tex. Crim. App. 1985)…….…………………..14
State v. Consaul, 960 S.W.2d 680 (Tex.App.-El Paso 1997, pet. dism'd)………...15
State v. Cullen, 195 S.W. 3d 696 (Tex. Crim. App. 2006)…………………………8
State v. Kelly, 204 S.W. 3d 808 (Tex. Crim. App. 2006)………………………..8, 9
State v. Ross, 32 S.W. 3d 853 (Tex. Crim. App. 2000)…………………………….8
State v. Stevens, 235 S.W. 3d 736 (Tex. Crim. App. 2007)………………………..9
Thompson v. State, 9 S.W. 3d 808 (Tex. Crim. App. 1999)………………………19
Vasquez v. State, 830 S.W. 2d 948 (Tex. Crim. App. 1992)……………………...19
Wiede v. State, 214 S.W. 3d 17 (Tex. Crim. App. 2007)……………...…………...8
II. Constitution
TEX CONST. art. 1 §10……………………...……………………………………...18
U.S. CONST. amend. VI…………………………………...……………………….18
III. Statutes
Tex. Code Crim. Proc. Art. 38.22……………………….……………………….....7
iv
Statement of the Case
Nature of the Case: Appellant was charged by indictment for four offenses:
Count I: Aggravated Sexual Assault of a Child
Count II: Continuous Sexual Assault of a Child
Count III: Indecency with a child by contact
Count IV: Indecency with a child by contact
Trial Court: 357H Judicial District Court, Cameron County, Texas,
Hon. Oscar X. Garcia
Proceedings: Appellant pleaded not guilty to all four offenses.
A jury was selected for the trial on the merits. The trial
judge was selected to determine the guilt / innocence
phase of trial. On August 5, 2014, the trial began with
evidence, and continued until August 8, 2014.
Trial Court Disposition: The jury found Appellant guilty of all four counts in
the indictment: (I) Aggravated Sexual Assault of a
Child, (II) Continuous Sexual Assault of a child, (III)
Indecency with a child by contact; and (IV) Indecency
with a child by contact.
The trial court judge sentenced Appellant to life in
prison without the possibility of parole in the Texas
Department of Criminal Justice-Institutional Division
(hereinafter TDCJ-ID) for Count I of the indictment,
life in prison in the TDCJ-ID for Count II, and 20 years
each in the TDCJ-ID for Counts III and IV, to run
concurrently.
v
CAUSE NO. 13-14-00661-CR
***********************************
IN THE COURT OF APPEALS
THIRTEENTH JUDICIAL DISTRICT OF TEXAS
CORPUS CHRISTI - EDINBURG, TEXAS
***********************************
ELIAS GAITAN,
Appellant,
v.
THE STATE OF TEXAS,
Appellee.
**********************************
STATE'S APPELLATE BRIEF
ON APPEAL FROM CAUSE NO. 2014-DCR-955-E
IN THE 357TH JUDICIAL DISTRICT COURT
CAMERON COUNTY, TEXAS
***********************************
To the Honorable Thirteenth Court of Appeals:
Comes now the State of Texas, by and through the District Attorney for the
107th Judicial District, Cameron County, Texas, and files this Appellate Brief on
behalf of The State of Texas. The State of Texas asks this Court to affirm the
guilty verdict, and deny any and all other relief requested:
1
Statement of Facts
On October 8, 2013, Detective Lucio of the Brownsville Police Department,
Sex Crimes Unit, was assigned to investigate a Sexual Assault of a Child Case. 2
RR. 74, 16-19. After speaking with the victim, it became apparent that the suspect
in this case was the victim’s father, Mr. Elias Gaitan Jr. (hereinafter Appellant). 3
RR. 23, 9-17. During the course of his investigation and after Appellant was
located and arrested, Detective Lucio had several conversations with Appellant
regarding the case. 2 RR 75, 13-15. As a result, a Motion to Suppress was held
before trial on the merits began regarding three separate statements made by
Appellant.
The first of these statements was elicited during a conversation which took
place at the police department. 2 RR 75, 11-12. Although only Detective Lucio
and Appellant were present during this discussion, the conversation was recorded.
2 RR 75, 13-14. At the beginning of the conversation, Detective Lucio introduced
himself and gave the purpose of the interview to Appellant. 2 RR 76, 7-12. At this
point, Detective Lucio stated that Appellant requested the assistance of a public
defender, to which Lucio replied “That’s what I was fixing to do. I was going to
make you aware of your rights. I was going to read you your rights. Are you
aware of the charge?” 2 RR 76, 16-19. Detective Lucio then told Appellant about
the charges against him and also informed him that it was his daughter who had
2
made the accusations. 2 RR 76, 20-23. However, Appellant was adamant that the
accusations were made by his wife. 2 RR 77, 11-14.
During a pretrial motion to suppress, Detective Lucio stated that he was not
trying to elicit any response from Appellant during this first conversation, but was
merely trying to make Appellant aware of his rights and to clarify that Appellant’s
wife was not the person making the allegations. Id. Further, during the
conversation between Lucio and Appellant, no straightforward admissions were
made. 2 RR 87, 3-4. However, trial counsel for Appellant was concerned that the
State would use Appellant’s silence as to the allegations as an admission of guilt
and wished to suppress the entire recorded conversation. 2 RR 87, 7-9. After legal
arguments were heard by the court and the recording was played, this first recorded
statement made by Appellant was suppressed by the trial court. 2 RR 87,
The second statement that Appellant’s trial counsel sought to suppress took
place during a recorded conversation between Appellant and his father, Mr. Elias
Gaitan Sr. 2 RR 89, 1-3. During the Motion to Suppress, Detective Lucio testified
that Mr. Gaitan came to the Brownsville Police Department and wished to speak
with him regarding his son’s case. Id. Mr. Gaitan told Detective Lucio that he
wished to speak with Appellant regarding the allegations. 2 RR 89, 3-6. After
speaking with his supervisor, Detective Lucio allowed Mr. Gaitan to speak with
Appellant. 2 RR 89, 7-8. The conversation between Mr. Gaitan and Appellant
3
took place in a police interrogation room, where a camera was readily visible. 2
RR 90, 1-2. Although Detective Lucio admits that he did not directly inform either
Mr. Gaitan or Appellant that their conversation would be recorded, it was evident
by statements made during the recording that both parties were aware of this fact.
2 RR 89, 21-23. In fact, during this conversation, Appellant informed his father
that he could not say much because they were being recorded. 2 RR 89, 21-23.
During this conversation, direct admissions were made by Appellant. 2 RR
90, 7-9. Appellant did not deny the allegations made against him and informed his
father that his actions were not forceful against his daughter. 2 RR 90, 11-13.
Before this second conversation took place, Detective Lucio did not tell Mr. Gaitan
what to ask Appellant, nor did he request for Mr. Gaitan to speak with Appellant.
2 RR 90, 14-19.
The third statement took place soon after Appellant left the interview room
where he had previously spoken with his father. 2 RR 93, 21-23. As Detective
Lucio was escorting Appellant back to his jail cell at the police department,
Appellant once again asked him when he would be allowed to speak with an
attorney. 2 RR 94, 4-5. Detective Lucio informed Appellant that an attorney
would be appointed to represent him. 2 RR 94, 7-8. Detective Lucio also told
Appellant that once he had an attorney appointed, he (referring to Detective Lucio)
would be available if Appellant wished to speak with him with his attorney
4
present. 2 RR 94, 7-9. Appellant then stated that he wanted to work out a deal
with the State, that he was not forceful with his daughter and that the sexual acts
did not occur as often as she stated that they did. 2 RR 94, 8-9. At this time,
Detective Lucio was not questioning or interrogating Appellant, and did not say or
do anything to elicit these statements from him. Id. Detective Lucio testified that
after these statements were made, he again informed Appellant that “…once he had
his attorney and wanted to speak with [him], [he] would be available.” 2 RR 94,
10-11.
At the close of the Motion to Suppress and after legal arguments were made,
the court granted Appellant’s motion to suppress as to his first statement, but
denied suppression of his second and third statements. 2 RR 107, 13-15; 2 RR
109, 1-2. However, during trial on the merits, the State was able to elicit testimony
regarding Appellant’s first statement despite the fact that it had been previously
suppressed by the Court. 3 RR 36, 12-23. This testimony that was elicited by the
State was not objected to by Appellant’s trial counsel. Id.
However, in addition to this statement, there was an overwhelming amount
of evidence that was considered by the jury before Appellant was convicted. In
addition to the Appellant’s statements, the State introduced into evidence two
letters from Appellant to the victim. 4 RR 37, 10. In these letters, Appellant asked
the victim to create a video recanting her statements and instructed her not to speak
5
with any of the State’s attorneys. 4 RR 42, 15-17. Testimony from Johanna
Frausto, a forensic interviewer employed at the Cameron County Child Advocacy
Center was also heard by the jury. 3 RR 129, 4-5. Through this testimony, the
State was able to show the victim’s video statement detailing the extent of the
sexual abuse that she endured. 3 RR 142, 6-12. The State was also able to show
that the victim had endured physical trauma to her hymen through the testimony of
Goldie Stralder, a CART nurse who worked at Valley Baptist Medical Center and
examined the victim after the outcry was made. 3 RR 74, 17-23. After
considering all of the evidence, the jury entered a guilty verdict on all counts as
they were alleged in the indictment. CR p. 143-146. Appellant was sentenced by
the trial court to life without possibility of parole on Count I, life in prison on
Count II, and twenty (20) years each on Counts II and IV. 7 RR 20, 17-23.
Summary of the Argument
In Appellant’s first point of error, Appellant alleges that his second two
statements should have been suppressed by the trial court because they were taken
after he requested the assistance of counsel and without a valid waiver of his rights.
However, the State contends that Appellant’s admissions made during a recorded
conversation between Appellant and his father were not the result of custodial
interrogation by a law enforcement agent. The State also asserts that Appellant’s
father voluntarily asked to speak with his son out of concern for his son’s
6
wellbeing and that he was not acting as an agent of the State when the admissions
were made. Further, Appellant initiated the communication with law enforcement
which led to his third statement. Accordingly, Appellant’s third statement was not
made as a result of custodial interrogation. Thus, the requirements of Tex. Pen.
Code 38.22 § 3 and Tex. Pen Code 38.23 simply do not apply to the admissibility
of Appellant’s second and third statements, and the trial court was correct in
allowing them into evidence. Therefore, Appellant’s first point of error should be
overruled.
In Appellant’s second point of error, he alleges that he received ineffective
assistance of counsel because his trial counsel failed to object to previously
excluded evidence at trial. Specifically, Appellant’s trial counsel failed to object to
testimony regarding Appellant’s first statement, which was suppressed by the trial
court. However, the State asserts that a single error should not result in a finding
of ineffective assistance of counsel. Further, the State contends that Appellant has
failed to show that the results of the proceeding would have been different but for
counsel’s actions since the suppressed statement contained no direct admissions by
Appellant. Also, there was an overwhelming amount of evidence introduced at
trial which proved Appellant’s guilt to the offenses alleged. Therefore, Appellant
failed to meet his burden of showing that he received ineffective assistance of
counsel, and his second point of error should be overruled.
7
Argument
A. The trial court was correct when it refused to suppress the second and
third statements of Appellant because they were not the product of
continued questioning after Appellant requested assistance of counsel
a. Standard of Review and Applicable Statutory Law
A trial court’s ruling on a motion to suppress evidence is reviewed under a
bifurcated standard of review. Amador v. State, 221 S.W. 3d 666, 573 (Tex. Crim.
App. 2007); Guzman v. State, 955 S.W. 2D 85, 89 (Tex. Crim. App. 1997).
Findings of fact on a motion to suppress are reviewed under a clearly erroneous
standard and conclusions of law are reviewed de novo. See United States v. Singh,
261 F.3d 530, 535 (5th Cir.2001). When reviewing the trial court’s decision, the
Appellate Court must not engage in its own factual review. Romero v. State, 800
S.W. 2d 539, 543 (Tex. Crim. App. 1990); Best v. State, 118 S.W. 3d 857, 861
(Tex. App—Fort Worth 2003, no pet.). The trial judge is the sole trier of fact and
judge of the credibility of the witnesses and the weight to be given to their
testimony. Wiede v. State, 214 S.W. 3d 17, 24-25 (Tex. Crim. App. 2007); State
v. Ross, 32 S.W. 3d 853, 855 (Tex. Crim. App. 2000), modified on other grounds
by State v. Cullen, 195 S.W. 3d 696 (Tex. Crim. App. 2006).
When reviewing the trial court’s ruling on a motion to suppress, the evidence
must be viewed in the light most favorable to the trial court’s ruling. Wiede, 214
S.W. 3d at 24; State v. Kelly, 204 S.W. 3d 808, 818 (Tex. Crim. App. 2006).
8
When the trial court makes explicit fact findings, the question is whether the
evidence, when viewed in the light most favorable to the trial court’s ruling,
supports the fact findings. Kelly, 204 S.W. 3d at 818-19. The trial court’s legal
ruling is reviewed de novo unless its explicit fact findings that are supported by the
record are also dispositive of the legal ruling. Id. at 818. The trial court’s ruling
must be upheld if it is supported by the record and is correct under any theory of
law applicable to the case. State v. Stevens, 235 S.W. 3d 736, 740 (Tex. Crim.
App. 2007); Armendariz v. State, 123 S.W. 3d 401, 404 (Tex. Crim. App. 2003),
cert. denied, 541 U.S. 974 (2004). In the instant case, a de novo review is
appropriate because the question presented is not a question of credibility but
application of appropriate law to the facts. Id.
Art. 38.22 of the Texas Code of Criminal Procedure states that:
Sec. 3 (a) 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:
(2) Prior to the statement but during the recording the accused is given
the warning in Subsection (a) of Section 2 above and the accused
knowingly, intelligently, and voluntarily waives any rights set out in
the warning;
However, Article 38.22 also provides that:
Sec 5. Nothing in this article precludes the admission of a statement
made by the accused in open court at his trial, before a grand jury, or
at an examining trial in compliance with Articles 16.03 and 16.04 of
this code, or of a statement that is the res gestae of the arrest or of the
offense, or of a statement that does not stem from custodial
interrogation, or of a voluntary statement, whether or not the result of
9
custodial interrogation, that has a bearing upon the credibility of the
accused as a witness, or of any other statement that may be admissible
under law.
b. The recorded statements between Appellant and his Father are
admissible because they did not stem from custodial interrogation
Although it is true that an oral statement made pursuant to custodial
interrogation is not admissible unless the requirements of article 38.22, section 3(a)
of the Texas Code of Criminal Procedure are met, section 5 of article 38.22 allows
the admission of “... a statement that does not stem from custodial interrogation....”
Tex. Code. Crim. Proc. Art. 38.22 Sec. 5. If a statement does not stem from
custodial interrogation, it is admissible against the accused on the question of guilt.
Chambliss v. State, 647 S.W.2d 257, 263 (Tex.Crim.App.1983). In this case, the
determination of whether appellant's statement was in response to custodial
interrogation hinges upon whether Appellant’s father was acting as an agent of the
State at the time the statement was made. See Cates v. State, 776 S.W.2d 170
(Tex.Crim.App.1989); Paez v. State, 681 S.W.2d 34 (Tex.Crim.App.1984) (both
involved investigators with the Texas Department of Human Resources).
When deciding whether a non-law enforcement questioner was acting as an
agent of law enforcement, numerous factors must be considered in light of the
existing circumstances. McCrory v. State, 643 S.W.2d 725, 727
(Tex.Crim.App.1982). Case law has emphasized that “it [is] difficult to formulate
a general rule to distinguish custodial interrogation from non-custodial
10
interrogation. A case by case approach in which the evidence is reviewed ... is
deemed necessary.” Ancira v. State, 516 S.W. 2d 924, 927 (Tex. Crim. App.
1974). When making this determination, the record as a whole must clearly
establish that Appellant's statements resulted from a calculated practice which all
agents of the State involved knew was reasonably likely to evoke an incriminating
response. Cates, 776 S.W.2d at 172 (citing McCrory, 643 S.W.2d at 743).
Simply put, the record must establish that when the Appellant made the
admissions, Appellant’s father was utilizing his capacity so as to accomplish what
the police could not have lawfully accomplished themselves. Cates, 776 S.W. 2d
at 172.
In Henson v. State, the Court of Appeals held that questioning of the
defendant by a friend was not custodial interrogation by an agent of the State.
Henson v. State, 794 S.W. 2d 385, 385 (Tex. Crim App. 1990). When the court
was deciding whether the non-law enforcement questioner was acting as an agent
of law enforcement, it considered numerous factors in light of the existing
circumstances as well as the relevant facts. Id. at 390. The appellant in this case
argued that his friend was acting as an agent for the following reasons: (1) his
friend testified that he had talked to the main investigator of the case three times
regarding the victim’s disappearance, (2) that the investigator had visited the friend
in his home twice, (3) that the investigator solicited his friend’s assistance in the
11
case and (4) that based on his friend’s conversations with the investigator, his
friend showed that he was willing to aid the sheriff’s office in the investigation. Id.
However, in Henson the State countered with the assertion that, when the
appellant made his admission of guilt, his friend had not been instructed by anyone
to ask any particular questions and that he was not and never had been a police
officer. Id. Further, the State asserted that the Appellant’s friend’s vague passing
references to his desire to provide whatever information he could to the police did
not make him a police agent, but merely a cooperative citizen. Id. The Court of
Appeals agreed with the State’s argument and overruled the Appellant’s point of
error. The Court held:
Based on the…uncontroverted facts, we conclude that the
record supports the trial court’s findings that [Appellant’s friend] did
not act as an agent of the State when he visited Appellant in jail and
elicited Appellant’s admission of guilt. The evidence shows that
[Appellant’s friend] went to the jail on his own out of concern for
Appellant’s welfare. [Appellant’s friend] already knew that Appellant
had confessed to the murder, but wanted to hear it directly from
Appellant to be sure that Appellant had not been abused. [Appellant’s
friend] had not provided information to the officers that resulted in
Appellant’s arrest, nor was he conducting a criminal investigation in
any official capacity…
Id. at 391. The facts in the present case are analogous to the facts in Henson.
To begin, as in Henson, Appellant’s father did not provide the police with any
information which led to Appellant’s arrest. At the time that Appellant’s father
visited Appellant, he was already in custody pursuant to a valid arrest warrant
12
based on probable cause which had been signed by a magistrate. Further, during
the pretrial motion to suppress, it is evident from the testimony elicited from
Detective Lucio that, like the friend in Henson, Appellant’s father also went to the
jail on his own out of concern for Appellant’s welfare. The record reflects the
following:
Counsel (State): Detective Lucio, after speaking with the defendant, did you have
an opportunity to speak with his father, Elias Gaitan?
Detective Lucio: Actually, his father came in, and if I could look at my report, I
believe his father came in the following day wanting to talk to me about his son's
arrest….Yeah, it was on Monday. His dad showed up at the front lobby wanting to
talk to me.
Counsel (State): And did you speak with him?
Detective Lucio: Yes, I did.
Counsel (State): And after, as you were talking with him, did he make any
requests of you?
Detective Lucio: He told me that he couldn't believe that his son wouldn’t have
done that, that, you know, and that if he spoke to his son that his son would tell
him the truth. I told him if he wanted to speak to him, he said yes. I said I would
have to check with my supervisor to see if that would be all right.
2 RR 88, 13-25; 2 RR 89, 1-6. Thus, it is evident that Detective Lucio did not
solicit the assistance of Appellant’s father to further his investigation. There is no
evidence which suggests that Appellant’s father was trying to aid the Brownsville
Police Department in any way, but was merely concerned about the welfare of his
son. Further, Detective Lucio testified that he did not tell Mr. Gaitan what to ask
13
Appellant, nor did he request for Mr. Gaitan to speak with Appellant. 2 RR 90, 14-
19. In fact, it is apparent from the uncontroverted facts in the record that during
this conversation, Appellant’s father was not conducting an investigation in any
official capacity. Therefore, Appellant’s father was not acting as a state agent
during this recorded conversation with Appellant and Art. 38.22 of the Texas Code
of Criminal Procedure simply does not apply to its admissibility. Thus, the trial
court was correct in admitting Appellant’s second statement into evidence.
c. The Statements made between Appellant and Detective Lucio in the
Elevator are Admissible because Appellant initiated the
communication with Law Enforcement
Article 38.22, the Texas Confession Statute, generally precludes use of
statements which result from custodial interrogation absent compliance with
procedural safeguards consistent with Miranda. Tex. Code Crim. Proc. Ann. art.
38.22 § 2; e.g., Shiflet v. State, 732 S.W.2d 622 (Tex.Crim.App.1985). But Article
38.22 § 5 specifically exempts statements which do not “stem from custodial
interrogation,” statements which are “res gestae of the arrest or the offense” and all
voluntary statements, whether or not they result from custodial interrogation.
An accused who has expressed a desire to deal with the police only through
counsel is not subject to further interrogation until counsel has been made
available, unless the accused “initiates further communication, exchanges, or
14
conversations with the police.” Edwards v. Arizona, 451 U.S. 477, 485 (1981). If
the police initiated the communication, then any subsequent waiver of counsel is
invalid, whether it is knowing or voluntary. Holloway v. State, 780 S.W.2d 787,
789-90 (Tex.Crim.App.1989). If, however, the suspect initiates communications
with the police and subsequently waives his Fifth Amendment rights, then
interrogation without counsel is constitutional. Id. at 789. When an accused
waives his right to counsel by initiating communication with police or law
enforcement officials, “the law requires ... that the contact initiated by the accused
must be of a type that evinces a willingness and desire for a generalized discussion
about the ongoing investigation.” Baldree v. State, 784 S.W.2d 676, 686
(Tex.Crim.App.1989). A valid waiver of the right to counsel cannot be established
by showing that the accused merely responded to further police-initiated custodial
interrogation. State v. Consaul, 960 S.W.2d 680, 688 (Tex.App.-El Paso 1997, pet.
dism'd).
The controlling issue here is whether the police or Appellant initiated the
communication that led to Appellant’s third statement. The chain of events is
undisputed and the only question is whose actions “initiated” communication. The
United States Supreme Court has defined “interrogation” as follows:
[T]he term “interrogation” under Miranda refers not only to express
questioning, but also to any words or actions on the part of the police
(other than those normally attendant to arrest and custody) that the
15
police should know are reasonably likely to elicit an incriminating
response from the suspect. The latter portion of this definition focuses
primarily upon the perceptions of the suspect, rather than the intent of
the police. A practice that the police should know is reasonably likely
to evoke an incriminating response from a suspect thus amounts to
interrogation. But, since the police surely cannot be held accountable
for the unforeseeable results of their words or actions, the definition of
interrogation can extend only to words or actions on the part of police
officers that they should have known were reasonably likely to elicit
an incriminating response.
Rhode Island v. Innis, 446 U.S. 291, 301 (1980). Pursuant to the rule in Rhode
Island v. Innis, Detective Lucio had no reason to know that informing Appellant
that he could meet with him after he was appointed an attorney would result in
Appellant eliciting an incriminating response. Case law emphasizes that general
and routine questions do not constitute an interrogation. Jones v. State, 795
S.W.2d 171, 174 n. 3 (Tex.Crim.App.1990). Further, offhand remarks, not
designed to elicit any kind of response, do not constitute an interrogation. Innis,
446 U.S. at 303; Janecka v. State, 739 S.W. 2d 813, 828-29 (Tex. Crim. App.
1987). From Appellant's perspective, the detective's remark could not possibly
have amounted to an interrogation. Detective Lucio was merely informing
Appellant as to his availability to speak with him once counsel was appointed and
could be present. Furthermore, Appellant volunteered the res gestae statements
that followed, without any prompting from the authorities. Appellant clearly stated
to Detective Lucio that he wanted to work out a deal with the State, that he was not
16
forceful with his daughter and that the sexual acts did not occur as often as she
stated that they did. 2 RR 94, 8-9. This was done not in an interrogation room or
otherwise intimidating location that could conceivably have pressured Appellant
into making an incriminating statement, but in an elevator on the way back to
Appellant’s jail cell. Appellant's statement that he wanted to work out a deal with
the State indicated a willingness and a desire on the part of an accused to open up a
more generalized discussion relating directly or indirectly to the investigation.
Further, Detective Lucio’s subsequent statement that “once [Appellant] had his
attorney and wished to speak with him, he would be available,” shows his intent to
close the discussion with Appellant until his attorney was present. Thus, the record
reflects that Detective Lucio was not attempting to elicit any sort of incriminating
response while he was in the elevator with Appellant. Therefore, Appellant’s third
statement was a voluntarily initiated communication with law enforcement, did not
stem from custodial interrogation, and was correctly admitted into evidence by the
trial court. Appellant’s first issue should be overruled.
B. Trial counsel did not provide ineffective assistance of counsel when she
failed to object to previously excluded evidence
a. Standard of Review and Applicable Statutory Law
The Sixth Amendment to the United States Constitution and section ten of
Article 1 of the Texas Constitution guarantee individuals the right to assistance of
17
counsel in a criminal prosecution. U.S. CONST. amend. VI; TEX. CONST. art. 1 §10.
The right to counsel requires more than the presence of a lawyer, it necessarily
requires the right to effective assistance. McMann v. Richardson, 397 U.S 759,
771 (1970); Powell v. Alabama, 287 U.S. 45, 57 (1932). However, the right does
not provide a right to errorless counsel, but rather to objectively reasonable
representation. Roberston v. State, 187 S.W. 3d 475, 483 (Tex. Crim. App. 2006).
A claim of ineffective assistance of his counsel is analyzed under the Strickland
standard. Strickland v. Washington, 466 U.S. 668, 687 (1984). In order to prevail
on a claim of ineffective assistance of counsel, Appellant must demonstrate that:
(1) his lawyer’s performance was deficient, i.e. that the lawyer made errors so
serious that he was not functioning as the “counsel” guaranteed by the Sixth
Amendment, and (2) the errors of counsel were so serious that there exists a
reasonable probability that, but for counsel's errors, the result of the proceedings
would have been different. See Strickland, 466 U.S. at 687, 694.
b. Appellant has not satisfied his burden of proving Ineffective
Assistance of Counsel under Strickland
An appellate court must make a strong presumption that counsel’s
performance fell within the wide range of reasonably professional assistance.
Robertson, 187 S.W. 3d at 483 (citing Strickland, 466 U.S. at 689). In order for an
appellate court to find that counsel was ineffective, counsel’s deficiency must be
affirmatively demonstrated in the trial record; the court must not engage in
18
retrospective speculation. Thompson v. State, 9 S.W. 3d 808, 81 (Tex. Crim. App.
1999). “It is not sufficient that Appellant show, with the benefit of hindsight, that
his counsel’s actions or omissions during trial were merely of questionable
competence.” Mata v. State, 226 S.W. 3d 425, 430 (Tex. Crim. App. 2007). When
such direct evidence is not available, the court should assume that counsel had a
strategy if any reasonably sound strategic motivation can be imagined. Garcia v.
State, 57 S.W. 3d 475, 483 (Tex. Crim. App. 2001). In making an assessment of
effective assistance of counsel, an appellate court must review the totality of the
representation and the circumstances of each case without the benefit of hindsight.
Robertson v. State, 187 S.W. 3d 475, 483 (Tex. Crim. App. 2006). A single error
will not typically result in a finding of ineffective assistance of counsel. Vasquez
v. State, 830 S.W. 2d 948, 951 (Tex. Crim. App. 1992).
In order to satisfy the first prong of Strickland, Appellant must prove, by a
preponderance of the evidence, that trial counsel’s performance fell below an
objective standard of reasonableness under the prevailing professional norms.
Appellant has failed to meet this burden. Although it is true that trial counsel for
Appellant failed to object to the previously suppressed statement, “an appellate
court should be especially hesitant to declare counsel ineffective based upon a
single alleged miscalculation during what amounts to otherwise satisfactory
representation…whether those actions were of strategic design or the result of
19
negligent conduct. Thompson v. State, 9 S.W. 3d 808, 814 (Tex. Crim. App.
1999).
Moreover, even if this Honorable Court was to find that trial counsel’s
performance was deficient, Appellant has not shown that but for the counsel’s
errors, the result of the proceedings would have been different. To prove that
Appellant was prejudiced, Appellant must show that there is a reasonable
probability, or a probability sufficient to undermine confidence in the outcome of
trial. Admission of Appellant’s first statement was in no way critical to the
outcome of the case. Although this statement was initially suppressed in a pretrial
motion, Appellant did not make any direct admissions during his conversation with
Detective Lucio. In fact, during testimony in the motion to suppress, trial counsel
for Appellant stated the following regarding Appellant’s first statement:
Counsel(Appellant): There's not a straightforward admission.
There's some -- Detective Lucio in his conversation with my client
told him what the accusations were, and he goes on to state in his
report, and I expect him to testify that my client didn't deny them, and
they are going to try to use his silence as an admission of guilt…
2 RR. 87, 3-9. The second two admissions of Appellant, which were deemed
admissible by the trial court, were much more damaging to Appellant’s case.
During Appellant’s conversation with his father, direct admissions were made by
Appellant. 2 RR 90, 7-9. Appellant did not deny the allegations made against him
and informed his father that his actions were not forceful against his daughter. 2
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RR 90, 11-13. Further, during the third statement, which occurred between
Appellant and Detective Lucio, Appellant again confirmed that he was not
foreceful with his daughter, that the sexual acts did not occur as often as she stated
that they did, and that he wanted to work out a deal with the State. 2 RR 94, 8-9.
Thus, it is hard to say how Appellant’s silence during the first statement prejudiced
Appellant when the jury was able to consider direct admissions made by Appellant
regarding his daughter’s accusations.
Further, besides the admission of these statements, there was an
overwhelming amount of evidence which proved Appellant’s guilt. During trial on
the merits, the State introduced into evidence two letters from Appellant to the
victim. 4 RR 37, 10. In these letters, Appellant asked the victim to create a video
recanting her statements and instructed her not to speak with any of the State’s
attorneys. 4 RR 42, 15-17. Testimony from Johanna Frausto, a forensic
interviewer employed at the Cameron County Child Advocacy Center, was also
heard by the jury. 3 RR 129, 4-5. Through this testimony, the State was able to
show the victim’s video statement detailing the extent of the sexual abuse that she
endured. 3 RR 142, 6-12. The State was also able to show that the victim had
endured physical trauma to her hymen through the testimony of Goldie Stralder, a
CART nurse who worked at Valley Baptist Medical Center and examined the
victim after the outcry was made. 3 RR 74, 17-23. After considering all of the
21
available evidence, the jury entered a guilty verdict of all counts as they were
alleged in the indictment. CR p. 143-146. Due to the amount of evidence
introduced by the State at trial, it is difficult to say that Appellant was harmed by
trial counsel’s failure to object to Appellant’s reaction to the initial interview by
Detective Lucio. The admission of Appellant’s silence was simply not critical to
the outcome of the case. Since Appellant has not shown that trial counsel’s failure
to object to previously excluded evidence would have led to a different outcome in
this case, Appellant has not met his burden of establishing that he received
ineffective assistance of counsel. Therefore, Appellant’s second point of error
should be overruled.
Prayer
WHEREFORE, PREMISES CONSIDERED, The State prays this
Honorable Court will affirm the trial court’s ruling when it denied Appellant’s
motion to suppress the second and third set of statements that were introduced at
trial. The State also prays this Honorable Court will find that Appellant’s trial
counsel was not ineffective when she failed to object to previously excluded
evidence, and deny any and all relief requested by Appellant on these grounds.
Respectively Submitted,
Luis V. Saenz
County and District Attorney
__________________________
Kristine N. Trejo
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Assistant District Attorney
Cameron County, Texas
State Bar No. 24091764
Certificate of Compliance
I certify that this document contains 6,508 words (counting all parts of the
document). The body text is in 14 point font, and the footnote text is in 12 point
font.
___________________
Kristine N. Trejo
Certificate of Service
I certify that a copy of the foregoing State's Appellate Brief was served in
compliance with Tex. R. App. P. 9.5 on this the 3rd day of December 2015, to the
following attorney of record for Appellant, Abraham Parra, by email.
Joseph Moreno
23409 El Paso Drive
Harlingen, Texas 78552
(F) (210) 247-9433
(P) (956) 536-8359
(E) j_moreno_02@yahoo.com
____________________
Kristine N. Trejo
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