Lopez, Roel Alvarez

PD-1376-15 COURT OF CRIMINAL APPEALS AUSTIN, TEXAS Transmitted 12/23/2015 5:59:45 PM Accepted 12/28/2015 12:51:32 PM ABEL ACOSTA NO. PD-1376-15 CLERK In the Court of Criminal Appeals of Texas Roel Alvarez Lopez, Appellant v. State of Texas, Appellee ON PETITION FOR DISCRETIONARY REVIEW FROM CAUSE NO. 13-13-00307-CR IN THE THIRTEENTH COURT OF APPEALS, REVIEWING CAUSE NO. CR-981-12-D 206TH JUDICIAL DISTRICT COURT OF HIDALGO COUNTY, TEXAS HON. ROSE GUERRA REYNA PRESIDING APPELLANT ROEL ALVAREZ LOPEZ’S PETITION FOR DISCRETIONARY REVIEW ORAL ARGUMENT CONDITIONALLY Brandy Wingate Voss REQUESTED State Bar No. 24037046 SMITH LAW GROUP LLLP 820 E. Hackberry Ave. McAllen, TX 78501 (956) 683-6330 (956) 225-0406 (fax) Counsel for Appellant Roel Alvarez December 28, 2015 Lopez IDENTITY OF PARTIES AND COUNSEL Appellant Counsel for Appellant Roel Alvarez Lopez Brandy Wingate Voss Smith Law Group, P.C. 820 E. Hackberry Ave. McAllen, Texas 78501 Trial Counsel Hon. Manuel Luis Singleterry, now Judge of the 93rd District Court of Hidalgo County, Texas Appellee Counsel for Appellee State of Texas Glen Devino Hidalgo County Criminal District Attorney’s Office Appeals Section 100 N. Closner, 3rd Floor Edinburg, Texas 78539 glenn.devino@da.co.hidalgo.tx.us Trial Counsel Joaquin Zamora State Bar No. 24003229 Victoria Muniz State Bar No. 24074772 100 N. Closner, 3d Floor Edinburg, Texas 78539 i TABLE OF CONTENTS IDENTITY OF PARTIES AND COUNSEL ................................................................ i TABLE OF CONTENTS ............................................................................................. ii INDEX OF AUTHORITIES ....................................................................................... iii STATEMENT REGARDING ORAL ARGUMENT.................................................. v STATEMENT OF THE CASE .................................................................................... v STATEMENT OF PROCEDURAL HISTORY ........................................................ vii GROUNDS FOR REVIEW ....................................................................................... vii ARGUMENT................................................................................................................ 1 I. Appellant raised coercion with respect to the initial interview .................. 2 II. This Court should protect an arrestee’s right to stop an interrogation, by invoking the right to counsel, and exclude the fruits of a statement taken in violation of that right. ........................... 5 CONCLUSION AND PRAYER................................................................................ 12 CERTIFICATE OF COMPLIANCE WITH RULE 9.4(e) ....................................... 13 CERTIFICATE OF SERVICE ................................................................................... 14 APPENDIX ................................................................................................................. 15 ii INDEX OF AUTHORITIES Cases Arizona v. Roberson, 486 U.S. 675 (1988) .................................................................................................. 8 Ashcraft v. State, 900 S.W.2d 817 (Tex. App.—Corpus Christi 1995, writ ref’d) ................................ 4 Baker v. State, 956 S.W.2d 19 (Tex. Crim. App. 1997) .............................................................6, 10 Commonwealth v. Martin, 827 N.E.2d 198 (Mass. 2005) ................................................................................... 6 Contreras v. State, 312 S.W.3d 566 (Tex. Crim. App. 2010). ........................................................3, 5, 6 Edwards v. Arizona, 451 U.S. 477 (1981) .............................................................................................. v, 8 Ex parte Lewis, 219 S.W.3d 335 (Tex. Crim. App. 2007) ............................................................... 11 In re H.V., 179 S.W.3d 746 (Tex. App. 2005), aff'd in part, rev'd in part, 252 S.W.3d 319 (Tex. 2008). .................................................................................. 10 In re H.V., 252 S.W.3d 319 (Tex. 2008) ..................................................................................... 6 Lopez v. State, No. 13-13-00307-CR, 2015 WL 5602278 (Tex. App.—Corpus Christi June 25, 2015) (mem. op.; not designated for publication) ............................................... v, vi, vii, 3 iii Lynumn v. Illinois, 372 U.S. 528 (1963) .................................................................................................. 4 Maryland v. Shatzer, 559 U.S. 98 (2010) ........................................................................................... 10, 11 McNeil v. Wisconsin, 501 U.S. 171 (1991) .................................................................................................. 8 Olson v. State, 484 S.W.2d 756 (Tex. Crim. App. 1969) ................................................................. 6 State v. Knapp, 700 N.W.2d 899 (Wis. 2005) ................................................................................... 6 State v. Farris, 849 N.E.2d 985 (Ohio 2006).................................................................................... 6 State v. Peterson, 923 A.2d 585 (Vt. 2007) ........................................................................................... 6 United States v. Gilkeson, 431 F.Supp.2d 270 (N.D.N.Y. 2006) ............................................................... passim United States v. Patane, 542 U.S. 630 (2004) ..............................................................................................5, 9 Rules TEX. R. APP. P. 47.1 ....................................................................................................... 4 iv TO THE HONORABLE COURT OF CRIMINAL APPEALS OF TEXAS: Appellant, Roel Alvarez Lopez, respectfully requests that this Court grant his petition for discretionary review and respectfully shows: STATEMENT REGARDING ORAL ARGUMENT Oral argument is not necessary if this Court determines that, as required by Texas Rule of Appellate Procedure 47.1, the lower court failed to address all arguments made by Appellant and remands to the court of appeals for further consideration. However, if the Court decides the issue in the first instance, Appellant believes that oral argument would be beneficial, given the size of the record on appeal. Appellant alternatively asks the Court to extend the exclusionary rule in Texas Code of Criminal Procedure article 38.23 to fruits of a statement taken in violation of Edwards v. Arizona, 451 U.S. 477, 485–86 (1981). To the extent the Court agrees and desires oral argument, Appellant believes it would be beneficial. STATEMENT OF THE CASE The Thirteenth Court of Appeals issued its decision on June 25, 2015, affirming Appellant’s conviction for murder and sentence of 37 years’ imprisonment. Lopez v. State, No. 13-13-00307-CR, 2015 WL 5602278 (Tex. App.— Corpus Christi June 25, 2015) (mem. op.; not designated for publication) (App’x). The court’s opinion reflects that police interrogated Appellant over the course of v three days after his arrest. Id. at *1-2. Because the police did not comply with the statutory requirements for taking a statement, the State did not offer the actual statements given by Appellant—yet they nevertheless used evidence that was the “fruit” of those statements. Id. at *2-3. The court of appeals held that absent coercion, the fruits of a statement taken improperly after an arrestee has invoked his right to counsel are not subject to exclusion under Texas Code of Criminal Procedure 38.23. Id. at *4-5. The court of appeals then held that the only relevant interrogation—which led the police to witnesses and physical evidence used to convict Appellant—occurred on the first day of his arrest, and that Appellant did not assert any police coercion with respect to that particular interrogation. Id. at *5-6. First and foremost, Appellant asks this Court to find that the court of appeals failed to address all of Appellant’s arguments—specifically, that the statements he gave on the first day of his interrogation were coerced. Appellant did, in fact, assert coercion during that first interrogation, but the court of appeals refused to address those arguments, even after the omission was pointed out on rehearing. Nevertheless, Appellant requests that this Court hold that an Edwards violation implicates article 38.23, and coercion is not required to exclude from the trial evidence that is indisputably the “fruit of the poisonous tree.” vi STATEMENT OF PROCEDURAL HISTORY Date and citation to Court of Appeals Lopez v. State, No. 13-13-00307-CR, Opinion: 2015 WL 5602278 (Tex. App.—Corpus Christi June 25, 2015) (mem. op.; not designated for publication). Motion for Rehearing and A motion for rehearing was filed on Reconsideration En Banc: September 9, 2015. Court of Appeals’ Disposition: The Thirteenth Court of Appeals denied the motion for rehearing on September 24, 2015. GROUNDS FOR REVIEW 1. Did the court of appeals improprly fail to address all of Lopez’s arguments regarding coercive police tactics during the first interview? 2. Should the Court determine that interrogation techniques that violate Edwards v. Arizona, as opposed to a mere failure to provide Miranda warnings, invoke the Texas exclusionary rule in Texas Code of Criminal Procedure Article 38.23 with respect to fruits of the statement? 3. Alternatively, should the Court construe Article I, section 10 as providing greater protection than the Fifth Amendment when an arrestee invokes his right to counsel, but police re-initiate questioning? (unbriefed) vii ARGUMENT This case involves the egregious violation of Lopez’s rights by the Pharr police department. Using the tainted evidence obtained as a result of Lopez’s statements to police—after he invoked his right to counsel—the State obtained a conviction for murder. Lopez is now serving a 37-year prison term. CR224, 229.1 The court of appeals affirmed by erroneously deciding that Appellant did not assert the police tactics used during the first interview were coercive. Appellant, however, briefed that argument below. This Court should afford Appellant the opportunity to have his arguments decided. Even so, this case is unsurprisingly similar to other cases the courts have recently been called upon to address. Unfortunately, a pattern has emerged, and it’s time for this Court to step in. This Court should hold that the invocation of the right to counsel during an interrogation means the interrogation has to stop, and should deter future violations through the exclusion of evidence obtained thereafter if the police do not honor the request for counsel. 1 The clerk’s record will be cited as “CR[page]” and “[volume]Supp.CR[page],” respectively. The reporter’s record will be cited as “[vol.]RR[page]” and “Supp.RR[page],” respectively. The exhibit volumes will be cited as follows: “[vol]RRSX[exhibit number]” for the State’s exhibits, and “[vol]RRDX[exhibit number]” for the Defense’s exhibits. 1 I. Appellant raised coercion with respect to the initial interview In his amended brief in the court of appeals, Appellant meticulously described the events during the interrogation. See Amended Br. at 1-10. Appellant expressly complained about coercive police action during both the initial interviews, stating: During the interrogation, Lopez spoke about his whereabouts on that Sunday. He informed the officers that he had been at a barbecue at a friend’s house and identified some of the people who had seen him there: Jennifer Gonzales, Danny Anguiano, and Joel Gonzalez. 16 RR 44:19–25, 51:4–11; 149:16–23. He mentioned that he had borrowed a pair of boots from Joel. 16 RR 77:22–78:19. He also stated that he had been wearing a red shirt and jeans. 16 RR 77:20–21. Though the police denied it, according to Lopez, the police threatened to arrest his family members, including his brother, and have his brother’s children placed into foster care. 16 RR 164:22–165:10. At one point while the officers were not in the room, Lopez approached the office door to ask a sergeant where his lawyer was. 16 RR 166:17–167:8. Rather than respond, the sergeant covered the window in the door with a piece of paper. Id. Id. at 2-3. The appellate record shows that Appellant testified he was threatened during his “interrogations” on the first day—meaning both the initial and the subsequent recorded interrogation. 16RR164-65. While he testified that Investigator Chapa did threaten to arrest his parents for making false reports, which occurred during the recorded interview, he also testified that was not the only threat made. 16RR180. He testified that Investigator Chapa threatened to take his brother’s kids away. Id.; 2 16RR165. Appellant then expressly claimed that those threats were coercive. 16RR181. The court of appeals, in a footnote, stated that the evidence of coercion was controverted. Lopez, 2015 WL 5602278, at *5 n.4. Investigator Chapa initially denied making any threats or coercive statements on the third day, and later reaffirmed that testimony. 9RR15, 90-91; 16RR58-59; see also 2Supp.RR128. But Investigator Chapa never expressly denied making any threatening statements during the initial interview.2 And, Investigator Chapa acknowledged that, during the third day of interrogation, when asked whether anything had happened against Appellant’s will to obtain a confession, Appellant complained that Chapa had threatened to arrest his mom, dad, and brother, and had the authority to do so. 16RR59. The State did not bother to explain this statement or provide testimony that the threat to which Appellant referred did not happen during the first interview. Threats made against family members of an accused may result in the accused’s confession being deemed involuntary. Contreras v. State, 312 S.W.3d 566, 576 (Tex. Crim. App. 2010). While courts have held that it is normal to inform an 2 In fact, Investigator Chapa testified that Appellant was placed in handcuffs during that initial interview because he became aggressive and disagreeing the police were questioning him about a homicide. 16 RR 48. 3 accused that occupants of the accused’s house might be held accountable for stolen property found on the premises, that holding does not address a threat to take away an accused’s brother’s children. See Ashcraft v. State, 900 S.W.2d 817, 823 (Tex. App.—Corpus Christi 1995, writ ref’d). Threats to take away an accused’s children have been held to be coercive, and that rule would certainly apply to a threat to take away an accused’s nephews and nieces from their parents. See Lynumn v. Illinois, 372 U.S. 528, 534 (1963). This is particularly true when combined with the additional threat to Appellant’s parents. And the record reveals no basis for any probable cause to make any report to CPS against Appellant’s brother, as argued by Appellant in his opening brief. See Amended Br. at 24. While it is true that Appellant raised additional coercive circumstances during the remaining interviews, Appellant’s brief did, in fact, challenge and raise coercive threats made during the initial interview. See Amended Br. at 2-3. The testimony supports this allegation as well. A court of appeals has an obligation to issue an opinion that decides all issues presented. TEX. R. APP. P. 47.1 (“The court of appeals must hand down a written opinion that is as brief as practicable but that addresses every issue raised and necessary to final disposition of the appeal.”). For all the foregoing reasons, Appellant urges the Court to either address Appellant’s arguments here, or remand 4 to the court of appeals for further consideration, and reverse the judgment of the trial court. II. This Court should protect an arrestee’s right to stop an interrogation, by invoking the right to counsel, and exclude the fruits of a statement taken in violation of that right. Police routinely fail to scrupulously honor an arrestee’s invocation of the right to counsel and obtain information that they can use to find other evidence against the arrestee. While they know the statement itself cannot be used, it really doesn’t matter if the fruits of the statement can be used. Thus, police officers can violate a person’s right to counsel and to terminate an interrogation with impunity, and with no consequences. This Court should correct that situation. Under United States constitutional precedent, where there has been a failure to provide Miranda warnings, the fruits of the statement can be used, and the State can obtain even though Miranda has been violated. United States v. Patane, 542 U.S. 630 (2004); Contreras, 312 S.W.3d at 582. This Court, and the Texas Supreme Court as a result, have held that the actual invocation of the right to counsel does not require application of the exclusionary rule, in part based on the rationale ultimately adopted by the Supreme Court in United States v. Pantane. Baker v. State, 5 956 S.W.2d 19, 24 (Tex. Crim. App. 1997); see also Contreras, 312 S.W.3d at 582; In re H.V., 252 S.W.3d 319, 327 (Tex. 2008).3 Courts have distinguished Pantane under circumstances similar to this case, which this Court refused to do in Baker. This Court should re-examine Baker and distinguish Pantane, to give the Fifth Amendment right to counsel the force it and citizens deserve. The exclusionary rule should apply where a party invokes his or her right to counsel during a custodial interrogation, and that request is not scrupulously honored. For example, in United States v. Gilkeson, the district court for the Northern District of New York, in a lenghty opinion, distinguished Miranda/Edwards violations from those addressed in Pantane, and applied the federal exclusionary rule. 431 F.Supp.2d 270 (N.D.N.Y. 2006). The Gilkeson court summarized the foundations for Miranda and the exclusionary rule, and noted that if Miranda’s 3 However, even if the “fruit of the poisonous tree” exclusionary rule does not apply to prophylactic Miranda violations, that does not preclude this Court from holding that Article I, section 10 of Texas Constitution and article 38.23 do require exclusion of the fruits of an improperly obtained statement. Olson v. State, 484 S.W.2d 756, 761 (Tex. Crim. App. 1969) (“Nevertheless, as to the true scope of the Texas Constitution, we must ultimately follow our own lights.”). Appellant asks the Court to do so. Under similar language, other states have applied an exclusionary rule, holding that a violation of the self-incrimination clause of their constitutions required exclusion of the “fruit of the poisonous tree.” State v. Peterson, 923 A.2d 585, 593 (Vt. 2007). In doing so, the Vermont Supreme Court noted that several other states had rejected Patane in construing their state constitutions. See Commonwealth v. Martin, 827 N.E.2d 198, 203 (Mass. 2005); State v. Knapp, 700 N.W.2d 899, 917-20 (Wis. 2005); State v. Farris, 849 N.E.2d 985, 996 (Ohio 2006). Due to the word count limits in this brief, Appellant requests the opportunity to brief this issue fully in briefing on the merits. 6 rationales have not been implicated, the exclusionary rule has not be applied. Id. at 285. It summarized Pantane’s refusal to apply the exclusionary rule in this construct as follows: The Court recently addressed the issue of the application of the fruit doctrine in another factual context in United States v. Patane. In Patane, the defendant was arrested for harassing his ex-girlfriend, and a restraining order was issued. While the matter was under investigation it came to the attention of the local police department that the defendant, a convicted felon, illegally possessed a Glock pistol. Two officers went to Patane's residence to question him about violating the restraining order and the discussion culminated in an arrest. The officer “attempted to advise [Patane] of his Miranda rights but got no further than the right to remain silent. At that point, [Patane] interrupted, asserting that he knew his rights, and neither officer attempted to complete the warning.” When asked about the Glock, Patane was reluctant to answer but eventually told an officer that the pistol was in his bedroom. The gun was retrieved and the government offered it at trial on charges for possession of a firearm by a convicted felon. The issue before the Court was whether the gun should have been suppressed as the fruit of an unwarned statement. The Court determined that the exclusionary rule did not apply to bar the introduction of the gun. The Patane plurality began by reaffirming the close-fit requirement between the Self–Incrimination Clause and any application of a suppression rule proposed to protect it and determined that here there was not a close fit. But the Court focused its analysis on the inapplicability of the deterrence rationale. “[U]nlike unreasonable searches under the Fourth Amendment or actual violations of the Due Process Clause or the Self–Incrimination Clause, there is, with respect to mere failures to warn, nothing to deter. There is therefore no reason to apply the ‘fruit of the poisonous tree’ doctrine of [Wong Sun].” ... 7 Beyond this ground for finding that the deterrence rationale did not apply, the facts of the Patane case do not implicate any of the traditional concerns of custodial interrogations. In fact, in Patane, it was the arrestee who “caused” the Miranda quandary by interrupting the reading of his Miranda rights and stating that he knew them. There was no indication of police misconduct. Miranda's application to assure the trustworthiness of evidence was not implicated either as his statements were indisputably voluntary. Again, since the facts did not suggest coercion or implicate the trustworthiness of the evidence the exclusionary rule was not applied to bar the introduction of Miranda- offending evidence. Id. at 286-88 (citations omitted). Turning to violations of the right to counsel, the Gilkeson court noted that the “purpose of the Miranda–Edward’s guarantee ... is to protect a quite different interest: the suspect’s ‘desire to deal with the police only through counsel.’” Id. at 289-90 (quoting McNeil v. Wisconsin, 501 U.S. 171, 178 (1991); Edwards, 451 U.S. at 484). The court held that the right to counsel is different than the other Miranda rights, and has been augmented—in Edwards v. Arizona—and fortified in Arizona v. Roberson. Id. at 289-90 (citing Edwards, 451 U.S. 477; Roberson, 486 U.S. 675, 681 (1988)). The Gilkeson court noted that in Patane, the Supreme Court did not address a Miranda-Edwards violation, and there was not even a violation of Miranda that was found in Patane. Id. at 292. In fact, the Patane Court stated that “[P]olice do not violate the Constitution (or even the Miranda rule, for that matter) by mere failures to warn. For this reason, the exclusionary rule articulated in cases such as Wong Sun 8 does not apply.” Id. (quoting Patane, 542 U.S. at 637). And while a failure to heed Miranda’s requirement of a warning did not implicate a need for deterrence—“[t]here is, with respect to mere failures to warn, nothing to deter”—a Miranda-Edwards violation is different. Id. Miranda not only contained prophylactic warning requirements, it contained an absolute prohibition on continuing an interrogation once the Miranda right to counsel had been invoked. Id. And the court found the difference dispositive: In this case, the Miranda–Edwards violation is clear and the Court's prohibition was ignored. While there may be some play in the words of the Miranda warning or the timing of the warning, it could not be clearer that police must cease questioning once an arrestee invokes the right to counsel. If this aspect of the Miranda rule may be disregarded without consequence then the rule is of no avail. Defendant Gilkeson asked for an attorney on three occasions and his requests were ignored. Where the Court has fortified its procedural safeguards in the Miranda context, a corresponding scope of the exclusionary rule is warranted. Furthermore, the apparent attempt to bypass the Miranda requirement in this case is akin the question-first conduct in Seibert, in which the plurality decision focused on the deterrence rationale. Of course, the need for deterrence is not implicated by good-faith police conduct. Accordingly, the Court has only extended Miranda's protection in Seibert where the police had deliberately sought to contravene its purposes. The police in this case sought to contravene Miranda’s purposes. The police officers ignored Gilkeson's repeated requests in a calculated manner in an attempt to confuse the defendant and/or to undermine his understanding of the effect of his assertion of his right to counsel. 9 As the dissent in Patane explained, the issue is not whether the nontestimonial nature of the evidence is directly tied to the Self– Incrimination Clause, but whether by admitting the Miranda-offending evidence an incentive is created for police misconduct. As a practical matter, once an arrestee has invoked the right to counsel, the police know that the interview is the last opportunity they will have to interrogate the arrestee without counsel. There is no incentive to cease questioning if the arrestee can be induced to make incriminating statements or to reveal information which leads to physical evidence that can be admitted in a subsequent criminal case. The fact that the statements themselves would not be admissible is not a sufficient remedy to protect the individual's right to be free from compelled self- incrimination. Id. at 293-94; see also In re H.V., 179 S.W.3d 746, 764 (Tex. App. 2005), aff'd in part, rev'd in part, 252 S.W.3d 319 (Tex. 2008). At the time this Court decided Baker, the Court did not have the benefit of the later decisions interpreting Edwards, which focus on the inherently coercive nature of a Miranda-Edwards violation. Compare Baker, 956 S.W.2d at 23 (“The failure to scrupulously honor a suspect's invocation of his right to remain silent by continuing questioning is not necessarily coercive.”), with Maryland v. Shatzer, 559 U.S. 98, 105 (2010). And, the Court did not have the benefit of Patane or the later decision by the New York District Court in Gilkeson distinguishing Patane. Nor did the Court have examples of the abuse that is occurring of the right to counsel in Texas, as demonstrated by the facts in In re H.V., where a minor’s right to counsel was violated. While Edwards has been called a prophylactic requirement, Maryland, 10 559 U.S. at 105, for purposes of the exclusionary rule, it should be treated differently where the arrestee has invoked his right to counsel and that request has been ignored. The fact is that absent the deterrent provided by an exclusionary rule, there is no incentive for police to honor requests for counsel. The “Fifth Amendment” right to counsel, therefore, means nothing. While this Court must consider stare decisis when deciding whether to overrule precedent, “[p]recedent can be overruled, however, if the reasons for doing so are weighty enough.” Ex parte Lewis, 219 S.W.3d 335, 338 (Tex. Crim. App. 2007). “Some factors supporting the overruling of precedent are: (1) that the original rule or decision was flawed from the outset, (2) that the rule’s application produces inconsistent results, (3) that the rule conflicts with other precedent, especially when the other precedent is newer and more soundly reasoned, (4) that the rule regularly produces results that are unjust, that are unanticipated by the principle underlying the rule, or that place unnecessary burdens on the system, and (5) that the reasons that support the rule have been undercut with the passage of time.” Id. Here, Appellant believes that the rule announced in Baker creates results that are unjust, conflicts with other newer precedent that is more soundly reasoned, and the reasons that supported the decision have been undercut with the passage of 11 time. For all these reasons, Appellant requests that the Court overrule Baker, adopt the reasoning in Gilkeson, and distinguish Pantane. CONCLUSION AND PRAYER This Court should grant review, request additional briefing, and render the judgment that the court of appeals should have rendered. The Court should reverse the judgment of the lower courts and remand for further proceedings. Alternatively, the Court should remand to the court of appeals to consider the arguments presented, but not addressed, below. Respectfully submitted, /s/ Brandy Wingate Voss Brandy Wingate Voss State Bar No. 24037046 SMITH LAW GROUP LLLP 820 E. Hackberry Ave. McAllen, TX 78501 (956) 683-6330 (956) 225-0406 (fax) brandy@appealsplus.com Counsel for Appellant 12 CERTIFICATE OF COMPLIANCE WITH RULE 9.4(e) This document complies with the typeface requirements of Tex. R. App. P. 9.4(e) because it has been prepared in a conventional typeface no smaller than 14- point for text and 12-point for footnotes. This document also complies with the word-count limitations of Tex. R. App. P. 9.4(i), because it contains 3,025 words, excluding the parts exempted by Rule 9.4. /s/ Brandy Wingate Voss Brandy Wingate Voss 13 CERTIFICATE OF SERVICE On December 23, 2015, in compliance with Texas Rule of Appellate Procedure 9.5, I served a copy of this document upon all other parties to the trial court’s judgment and the respondent by first-class United States mail, return receipt requested, properly posted and deliverable as follows: Glen Devino Assistant District Attorney Appeals Section Office of Criminal District Attorney Hidalgo County, Texas 100 N. Closner, Rm 303 Edinburg, Texas 78539 Fax: (956) 380-0407 glenn.devino@da.co.hidalgo.tx.us Lisa C. McMinn State Prosecuting Attorney Office of State Prosecuting Attorney of Texas P. O. Box 13046 Austin, Texas 78711-3046 Fax: (512) 463-5724 /s/ Brandy Wingate Voss Brandy Wingate Voss 14 APPENDIX 15 Lopez v. State, Not Reported in S.W.3d (2015) Cecilia Escamilla found her brother, the decedent, dead at home on the evening of Sunday, December 4, 2011. The San 2015 WL 5602278 Juan Police Department opened an investigation into his death Only the Westlaw citation is currently available. that night. The next day, an anonymous tipster gave the police SEE TX R RAP RULE 47.2 FOR the name of “Roli Lopez who lived in Alamo.” Lopez became DESIGNATION AND SIGNING OF OPINIONS. the focus of their investigation. DO NOT PUBLISH. TEX. R. APP. P. 47.2(B). On the morning of Wednesday, December 7, 2011, the Court of Appeals of Texas, police went to Lopez's home and informed him about their Corpus Christi-Edinburg. investigation. After a brief exchange, the police handcuffed and transported Lopez to the police station for further Roel Alvalrez Lopez, Appellant, questioning. According to Lopez and his mother, as the police v. escorted him away, he asked his mother to call his lawyer. The State of Texas, Appellee. The police officers denied hearing this request. Shortly after the police brought him into custody, Lopez's mother retained NUMBER 13–13–00307–CR | two attorneys to assist him. Delivered and filed June 25, 2015 When Lopez arrived at the police station on Wednesday On appeal from the 206th District Court of Hidalgo County, morning, officers questioned him concerning his whereabouts Texas. on the previous Sunday. The initial interview was not Attorneys and Law Firms recorded. However, according to the police, Lopez signed a written waiver of his Miranda rights. Lopez did not Ricardo P. Rodriguez, Glenn W. Devino, for the State of recall signing this waiver and claimed that he requested an Texas. attorney. According to the police, during this unrecorded interview, Lopez identified three individuals that could Brandy Wingate Voss, for Roel Alvarez Lopez. account for his whereabouts on Sunday: Jennifer Gonzales, Before Chief Justice Valdez and Justices Rodriguez and Danny Anguiano, and Joel Gonzalez. Longoria Approximately two hours into questioning, but still during Wednesday morning, the police obtained access to a video camera and began recording the interview. Lopez appeared MEMORANDUM OPINION in handcuffs. The police did not read Lopez his Miranda Memorandum Opinion by Chief Justice Valdez rights at the start of the video. The police offered Lopez a bottle of water and gave him an opportunity to take a cigarette *1 A jury found appellant Roel Alvarez Lopez (“Lopez”) break. The police also indicated that they could arrange to guilty of the offense of murder, a first degree felony, have Lopez's mother bring him some food if he was hungry, and sentenced him to thirty-seven years' imprisonment in but Lopez declined. Although Lopez had a splint on his the Texas Department of Criminal Justice—Institutional finger, he did not indicate the need for medical attention. The Division. See Tex. Penal Code Ann. § 19.02 (West, Westlaw interview continued for the remainder of the morning with through 2015 3d R.S.). By two issues, Lopez contends that several breaks in questioning. At no point during the recorded (1) the trial court erred in failing to suppress evidence that interview did Lopez request to speak to an attorney. he claims constituted the fruit of statements that he made during an allegedly illegal police interrogation, and (2) he was Throughout the recorded interview, Lopez consistently deprived of effective assistance of counsel. We affirm. denied any involvement in the decedent's death; he again referenced Jennifer Gonzales, Danny Anguiano, and Joel Gonzalez; and he offered an alibi that consisted of him being at home during a certain time frame on the previous I. Background Sunday. However, when Lopez's alibi did not match up with information that his family members provided concerning © 2015 Thomson Reuters. No claim to original U.S. Government Works. 1 Lopez v. State, Not Reported in S.W.3d (2015) his whereabouts on Sunday, the police began to suspect that evidence was inadmissible under the fruit of the poisonous Lopez was not telling the truth. The police then asked Lopez tree doctrine due to the allegedly illegal police interrogation. whether it would be appropriate to charge his family members with filing a false report in light of the fact that the information 1 At the suppression hearing, Lopez clarified that his they provided did not match up with his story. Despite what motion to suppress sought to exclude the following the police believed to be inconsistencies in his alibi, Lopez evidence: maintained his innocence throughout the interview. What I'm asking the Court to suppress is the statements made by Joel [Gonzalez], whose *2 Over the next two days, Lopez remained in custody. identity came through what we classify as illegal The attorneys that Lopez's mother hired went to the police questioning of Mr. Lopez. So they learn of station to visit with Lopez on Thursday and Friday, but the Joel [Gonzalez], his statements and any physical authorities did not allow them access to Lopez. According evidence that was gathered as a result. Daniel Anguiano, which I think the State agrees to Lopez, during this time, the police put him in a cell with that if Daniel Anguiano is inadmissible, then so are hostile individuals, refused his requests to see his attorneys, everybody else that was at that barbeque essentially threatened to arrest his family, and did not feed him. because they learned of those people through Daniel Anguiano and they learned of Daniel Anguiano By Friday afternoon, Lopez informed the police that he through Mr. Lopez. wanted to confess. After Lopez indicated that he wanted to And Jennifer Gonzalez, who they also learned confess, the police fed him a plate of barbeque. After finishing from Mr. Lopez. And then any subsequent physical his food, Lopez confessed that he shot the decedent with a evidence that they gathered through them. gun. Lopez's confession was recorded and reduced to writing. So it's just all evidence that stems from those Thereafter, Lopez was charged with capital murder. individuals. Midway through the suppression hearing, the State made After Lopez confessed, the police contacted Jennifer an important announcement to the trial court; the State Gonzales, Danny Anguiano, and Joel Gonzalez—the three announced that it did not intend to introduce any statement individuals who Lopez identified during his initial interview. that Lopez gave to the police. 2 The State explained that After contacting these individuals, the police obtained it elected not to introduce Lopez's statements out of a additional incriminating evidence against Lopez, which, in concern that the police had not complied with certain statutory relevant part, included the following: (1) their statements that requirements pursuant to Texas Code of Criminal Procedure tended to connect Lopez to the crime; (2) the murder weapon, article 38.22. See TEX. CODE CRIM. PROC. ANN. art. which Lopez borrowed from Joel Gonzalez at a barbeque on 38.22 (West, Westlaw through 2015 3d R.S.) (providing, as the evening of the murder; and (3) several personal items a prerequisite to admissibility, that the accused's statement belonging to the decedent and his family, which Lopez gave capture the reading and waiver of his Miranda rights). to Jennifer Gonzalez after the murder. 2 The excluded statements consisted of Lopez's videotaped A. Suppression Hearing interview on Wednesday and his written and videotaped Prior to trial, Lopez moved to suppress his written and confession on Friday. oral statements at the police department arguing the police *3 With the admissibility of Lopez's statements no longer interrogated him illegally. Specifically, Lopez argued that the at issue, the focus of the suppression hearing turned to the police obtained his statements (1) by ignoring his request question of whether the fruit of the poisonous tree doctrine for counsel in violation of his Miranda rights, and (2) by applied to exclude the statements of Jennifer Gonzales, using coercive tactics to get him to talk (and eventually Danny Anguiano, and Joel Gonzalez, and the physical confess) in violation of his due process right to be free evidence that the police obtained through them. The State from coercion under the Fourteenth Amendment. In addition argued: to his statements, Lopez sought to suppress any statement that Jennifer Gonzales, Danny Anguiano, and Joel Gonzalez [T]hat evidence should not be provided to the police, and any physical evidence that the suppressed because, what we're saying is that there were statutory police obtained through them. 1 Lopez argued that this requirements that were not met, which © 2015 Thomson Reuters. No claim to original U.S. Government Works. 2 Lopez v. State, Not Reported in S.W.3d (2015) would make the oral statements, 43, 48 (Tex.Crim.App.2010). In a motion to suppress the recordings inadmissible, which hearing, the trial court is the “sole trier of fact and judge is an evidentiary rule. However, the of the credibility of the witnesses and the weight to be exclusionary rule does not apply to given their testimony.” State v. Ross, 32 S.W.3d 853, 855 this situation because there were no (Tex.Crim.App.2000). As such, the trial court may “believe Constitutional violations that would or disbelieve all or any part of a witness's testimony, allow the ‘fruit of the poisonous tree’ even if that testimony is not controverted.” Id. This is so doctrine to apply to this situation. So because it is “the trial court that observes first hand the the taint for the original oral statements demeanor and appearance of a witness[.]” Id. On appeal, made by the Defendant does not carry we should afford “almost total deference to a trial court's to the evidence that was obtained as a determination of the historical facts that the record supports result of those statements. especially when the trial court's fact findings are based on an evaluation of credibility and demeanor.” Guzman v. State, Citing Baker v. State, the State clarified that the fruit of the 955 S.W.2d 85, 89 (Tex.Crim.App.1997). We should also poisonous tree doctrine did not apply unless there was actual afford the same amount of deference to the “trial court's police coercion. 956 S.W.2d 19, 23 (Tex.Crim. App.1997) rulings on ‘application of law to fact questions,’ also known (holding that “[i]n the absence of actual [police] coercion, as ‘mixed questions of law and fact,’ if the resolution of those the fruits of a statement taken in violation of Miranda need ultimate questions turns on an evaluation of credibility and not be suppressed under the ‘fruits' doctrine”). Lopez agreed demeanor.” Id. Finally, we conduct a de novo review where with this articulation of the law but argued that the fruits of “the resolution of mixed questions of law and fact do not turn his statements should be suppressed because the police used on an evaluation of credibility and demeanor.” Id. coercion to get him to talk. *4 When, as here, the trial court rules on a defendant's To resolve this issue, it appears that the trial court determined, motion to suppress without entering findings of fact, we must and the parties agreed, that the focus of the suppression view the evidence “in the light most favorable to the trial hearing should center on the circumstances surrounding court's ruling” and “assume that the trial court made implicit Lopez's detention on his first day in custody when Lopez findings of fact that support its ruling as long as those findings told the police about Joel Gonzalez, Daniel Anguiano, and are supported by the record.” Ross, 32 S.W.3d at 855. The Jennifer Gonzalez. trial judge's decision will be sustained if it is correct on any theory of law applicable to the case. Id. At the conclusion of the suppression hearing, the trial court orally (1) granted Lopez's motion to suppress as to his B. Applicable Law statements, and (2) denied his motion to suppress as to the fruits of his statements. The trial court did not enter findings i. Sources of Law of fact and conclusions of law for its ruling. Lopez's first issue requires a review of three sources of law: (1) the Miranda rule; (2) the Texas confession statute; and (3) the right to be free from police coercion under the due process II. Motion to Suppress clause. First, the Miranda rule secures the Fifth Amendment right against self-incrimination in the context of custodial By his first issue, Lopez argues that suppression of his interrogations by requiring that a person subject to police statements also required suppression of the fruits of his questioning receive the following warnings: “that he has a statements because the police violated (1) his Miranda right right to remain silent, that any statement he does make may to counsel, and (2) his due process right to be free from police be used as evidence against him, and that he has a right to coercion. the presence of an attorney, either retained or appointed.” Miranda v. Arizona, 384 U.S. 436, 444 (1966). Second, the Texas confession statute implements the Miranda rule by A. Standard of Review requiring, among other things, that the accused's statement We review a trial court's decision on a motion to suppress be either written or recorded and contain a reading of the for an abuse of discretion. Crain v. State, 315 S.W.3d © 2015 Thomson Reuters. No claim to original U.S. Government Works. 3 Lopez v. State, Not Reported in S.W.3d (2015) Miranda warnings, along with the accused's waiver thereof. of his statements. See Patane, 542 U.S. at 634; see also TEX.CODE CRIM. PROC. ANN. art. 38.22. Baker, 956 S.W.2d at 23–24; In re H. V., 252 S.W.3d at 329; Contreras, 312 S.W.3d at 583. Thus, assuming without Third, the due process clause of the Fourteenth Amendment deciding that the police violated Lopez's Miranda rights, we requires that an accused's statement be voluntary and not cannot conclude that the trial court abused its discretion in the product of police coercion. See Armstrong v. State, following well-settled law by refusing to suppress the fruits 718 S.W.2d 686, 693 (Tex.Crim.App.1985). To determine of his statements. 3 See Ross, 32 S.W.3d at 855. whether the circumstances render an accused's statement coerced and involuntary, courts look at whether his will was 3 Lopez argues that the Texas exclusionary rule should “overborne” by police coercion. Id. Courts look to the totality apply to exclude physical evidence derived from of the circumstances surrounding the statement in making this Miranda violations because things have changed since determination. Id. (citing Davis v. North Carolina, 384 U.S. the last time the court of criminal appeals took up 737 (1966)). Relevant circumstances include the “length of the issue in Baker v. State, 956 S.W.2d 19, 23 detention, incommunicado or prolonged detention, denying a (Tex.Crim.App.1997). Specifically, Lopez points out family access to a defendant, refusing a defendant's request that in 2000, after the court of criminal appeals decided to telephone a lawyer or family member, and physical Baker, the Supreme Court in Dickerson abandoned its brutality.” Id. When the issue is raised, the State must prove characterization of Miranda as a prophylactic rather than voluntariness by a preponderance of the evidence. Juarez v. a constitutional rule. See Dickerson v. United States, State, 409 S.W.3d 156 (Tex.App.–Houston [1st Dist.] 2013 530 U.S. 428, 444 (2000) (concluding that Miranda pet. ref'd). announced a constitutional rule that Congress may not supersede legislatively). Lopez argues that Dickerson's characterization of Miranda as a constitutional rule ii. Exclusionary Remedy calls for a reassessment of Baker's holding, which A statement taken in violation of any one of these three was premised on a view that Miranda announced a prophylactic rule. We disagree. Four years after sources of law is inadmissible; however, only a violation of Dickerson was decided, the Supreme Court in Patane the third source of law—the due process right against police clarified that Dickerson did not change the rule that coercion—entitles the accused to suppression of the fruits of physical evidence is admissible even if gained from his statement. See United States v. Patane, 542 U.S. 630, 634– questioning that violates Miranda. See United States v. 44 (2004) (plurality opinion); Chavez v. Martinez, 538 U.S. Patane, 542 U.S. 630, 643 (2004) (plurality opinion). 760, 769 (2003); see also Baker, 956 S.W.2d at 22–24 (citing Furthermore, in 2008, the Texas Supreme Court echoed Michigan v. Tucker, 417 U.S. 433, 448–49 (1974)); In re H.V., this holding in the context of a juvenile proceeding. See 252 S.W.3d 319, 329 (Tex.2008); Contreras v. State, 312 In re H.V., 252 S.W.3d 319, 328 (Tex.2008) (holding S.W.3d 566, 583 (Tex.Crim.App.2010); State v. Cruz, No. that “violations of Miranda do not justify exclusion of PD0082–14, 2015 WL 2236982, at *6 (Tex.Crim.App. May physical evidence resulting therefrom”). Thus, in light 13, 2015). “In determining whether evidence is inadmissible of Patane and In re H.V., and without binding authority as fruit of the poisonous tree, the critical issue is whether the to the contrary, we decline Lopez's invitation to reassess evidence was gained by exploitation of an illegality.” Graham Baker's holding. v. State, 964 S.W.2d 738, 741 (Tex.App.–Beaumont 1998) (citing Wong Sun v. United States, 371 U.S. 471 (1963)), aff'd, 2. Police Coercion Claim 994 S.W.2d 651 (Tex.Crim.App.1999). We now turn to Lopez's second argument that the trial court erred in failing to suppress the fruits of his statements because the police obtained them through coercion. Unlike C. Analysis his Miranda claim, this claim entitled Lopez to suppression of the fruits of his statements if there was “actual [police] 1. Miranda Claim coercion.” See Baker, 956 S.W.2d at 23; see also Armstrong, *5 Lopez argues that the trial court erred in failing to 718 S.W.2d at 693. We afford almost total deference to the suppress the fruits of his statements because the police trial court's ruling on this issue because it involved a mixed violated his Miranda right to counsel. However, as noted question of law and fact, which turned on an evaluation of above, the exclusionary remedy for a Miranda violation is credibility and demeanor. See Garcia v. State, 15 S.W.3d limited to suppression of Lopez's statements—not the fruits 533, 535 (Tex.Crim.App.2000); Guzman, 955 S.W.2d at 89. © 2015 Thomson Reuters. No claim to original U.S. Government Works. 4 Lopez v. State, Not Reported in S.W.3d (2015) fruits doctrine did not apply to exclude the fruits of Lopez's Because the trial court did not enter written findings of fact, statements because the police could not have obtained that we must view the evidence in the light most favorable to its evidence by exploiting an illegality. Id. Furthermore, Lopez ruling. See Ross, 32 S.W.3d at 855. We must also assume that provides no legal authority to support a contrary position. the trial court made implicit findings of fact in support of its Viewing the evidence in the light most favorable to its ruling as long as those findings are supported by the record. ruling, we cannot conclude that the trial court erred in Id. Finally, we must affirm the trial court's ruling if it is correct implicitly finding that Lopez's fruit-producing statements on any theory of law applicable to the case. Id. were voluntary and not the product of police coercion. See Ross, 32 S.W.3d at 855. We therefore overrule Lopez's first Guided by this standard of review, the record supports the issue. trial court's implied finding that Lopez identified Jennifer Gonzales, Danny Anguiano, and Joel Gonzalez during his initial interview with the police, which took place on the morning of his first day in custody. Lopez does not argue that III. Conclusion 5 his will was overborne by police coercion during this initial interview. Instead, to establish police coercion, Lopez points 5 By his second issue, Lopez contends that, if his first to evidence—disputed by the State—that occurred after his issue was not preserved for appellate review, it was only initial interview. Specifically, Lopez argues that the police because his trial counsel provided ineffective assistance detained him for approximately three days, put him in a cell by waiving the issue when he stated “no objection” with hostile individuals, denied him access to his lawyers and as the State introduced the evidence that his motion family members, deprived him of food, and threated to arrest to suppress unsuccessfully sought to exclude. Having already addressed the merits of Lopez's first issue, his family. 4 The State responds that these circumstances, we have assumed, without deciding, that counsel's “no even if true, are irrelevant because Lopez made the fruit- objection” statement did not waive his earlier-preserved producing statements during his initial interview, and he does claim. See Thomas v. State, 408 S.W.3d 877, 881 not argue that the police obtained those statements through (Tex.Crim.App.2013) (indicating that if it is clear from coercion. We agree with the State. the record as a whole that the defendant did not intend to waive an earlier-preserved claim of error, then the 4 We note that this evidence was not without dispute, as claim has not been waived and should be resolved on the trial court was faced with conflicting testimony from the merits). We do so being guided by Texas Rule of several witnesses at the suppression hearing regarding Appellate Procedure 47.1, which requires that we “hand the deprivations Lopez claimed to have suffered. down a written opinion that is as brief as practicable but that addresses every issue raised and necessary to final *6 The critical issue for purposes of applying the fruits disposition of the appeal.” See TEX.R.APP. 47.1. doctrine is whether the police obtained the fruits at issue by exploiting Lopez's right to be free from coercion—i.e., by We affirm the judgment of the trial court. exploiting an alleged illegality. See Graham, 964 S.W.2d at 741; see also Wong Sun, 371 U.S. at 471. With this in mind, All Citations the trial court could have reasonably determined that Lopez's will was not overborn by police coercion during his initial Not Reported in S.W.3d, 2015 WL 5602278 interview—i.e., the fruit-producing interview; therefore, the End of Document © 2015 Thomson Reuters. No claim to original U.S. Government Works. © 2015 Thomson Reuters. No claim to original U.S. Government Works. 5