Opinion issued October 18, 2018
In The
Court of Appeals
For The
First District of Texas
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NO. 01-14-00579-CR
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MAYRA FLORES, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 339th District Court
Harris County, Texas
Trial Court Case No. 1280239
MEMORANDUM OPINION
Appellant, Mayra Flores, was charged by indictment with murder.1 The jury
found her guilty, and the trial court assessed punishment at 25 years’ confinement.
1
See TEX. PENAL CODE ANN. § 19.02(b) (West 2011).
In one issue, Appellant argues the trial court abused its discretion by admitting the
two audio recordings of her custodial interrogation.
On original submission, we overruled Appellant’s sole issue, holding there
was no error. Flores v. State, No. 01-14-00579-CR, 2015 WL 4591707, at *3 (Tex.
App.—Houston [1st Dist.] July 30, 2015, pet. granted) (Flores I). The Court of
Criminal Appeals determined there was error, and the court remanded the case to
this Court to conduct a harm analysis. Flores v. State, No. PD-1189-15, 2018 WL
2327162, at *9 (Tex. Crim. App. May 23, 2018) (Flores II).
We reverse and remand for a new trial.
Background
On October 3, 2010, Appellant and her boyfriend, Francisco Castellano, were
arguing. In the course of the argument, Appellant stabbed Castellano, ultimately
killing him. Officers W. Kuhlman and R. Hunter interrogated Appellant. Officer
Kuhlman recorded the interview. Thirty-six minutes into the interrogation, the
recording device stopped. About thirty minutes after that, Officer Kuhlman began
recording again. The interrogation lasted for another 53 minutes. The last 18
minutes of the recording are missing from the audio file admitted into trial, however.
At trial, Appellant sought to suppress the admission of the two audio
recordings, claiming the recordings were inadmissible because they were
incomplete. The trial court overruled the objection and admitted both recordings.
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Motion to Suppress Interrogation Audio Recordings
Appellant argues she was harmed by the trial court erroneously admitting the
two audio recordings of her custodial interrogation. Appellant’s argument that the
evidence should have been excluded was based on section 3 of article 38.22 of the
Texas Code of Criminal Procedure. See TEX. CODE CRIM. PROC. ANN. art. 38.22,
§ 3(a) (West 2018). The harm analysis for errors based on section 38.22 is governed
by rule 44.2(b) of the Texas Rules of Appellate procedure. Nonn v. State, 117
S.W.3d 874, 881 (Tex. Crim. App. 2003); Smith v. State, 236 S.W.3d 282, 296 (Tex.
App.—Houston [1st Dist.] 2007, pet. ref’d); TEX. R. APP. P. 44.2(b). Under rule
44.2(b), any error “that does not affect substantial rights must be disregarded.” TEX.
R. APP. P. 44.2(b). “A substantial right is affected when the error had a substantial
and injurious effect or influence in determining the jury’s verdict.” Smith, 236
S.W.3d at 296–97 (citing King v. State, 953 S.W.2d 266, 271 (Tex. Crim. App.
1997)).
In making this assessment, we consider the entire record, including the
evidence admitted, the nature of the evidence supporting the conviction, the
character of the error, and how the erroneously admitted evidence relates to other
evidence in the case, the charge, the State’s and the defense’s theories of the case,
and closing arguments. See Morales v. State, 32 S.W.3d 862, 867 (Tex. Crim. App.
2000).
3
While the opinion joined by a plurality of the court in Flores II (the
“Opinion”) did not perform a harm analysis, it did analyze whether the admission of
the recordings was material. 2018 WL 2327162, at *7–*8. This materiality analysis
reviewed the same portions of the record required of a substantial-injury analysis.
The Opinion determined, “The way the prosecution dealt with the missing portions
of the recorded interview in trial effectually generated materiality.” Id. at *7.
The Opinion observed that, during the testimony of the officer that recorded
the interview, the State never asked the officer “what Appellant said to him during
the missing minutes.” Id. In contrast, “the State repeatedly challenged Appellant
about what counsel for the State perceived as changes and omissions in her
statements about Castellanos’s death. Despite his assertions that no part of the
interrogation was missing, counsel for the State repeatedly referred to ‘the part that
wasn’t recorded.’” Id. The Opinion quoted five separate portions of Appellant’s
cross-examination to highlight this point. Id. at *7–*8. Appellant testified that she
did tell the officers that she acted in self-defense during her interrogation. Id. The
State questioned Appellant why her defense was not on the recording, asking
questions such as, “So that’s on the part that’s missing, as well?” Id. at *8.
The same theme appeared in the State’s closing. Id. The State characterized
Appellant’s assertion that she acted in self-defense as something she made up in
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preparation for trial. Id. Its proof for this argument was the fact that the defense
was not asserted in the recordings. Id.
“In this case, the State failed to preserve evidence and then used its absence
to undermine Appellant’s trial testimony about the events that ended in Castellanos’s
death.” Id. This put Appellant in an impossible situation. “Appellant could not
prove that she had made a prior statement that was consistent with her trial testimony
because any such statements had been lost through no fault of her own.” Id. The
State used this inability to prove what the officers had lost against Appellant. “By
repeatedly referring to what might or might not have been said during the missing
thirty minutes, the State improperly used the missing minutes as a sword against
Appellant.” Id.
In a claim of self-defense, “a defendant bears the burden of production,” while
“the State . . . bears the burden of persuasion to disprove the raised defense.” Zuliani
v. State, 97 S.W.3d 589, 594 (Tex. Crim. App. 2003). The State attempted to carry
its burden of persuasion by forcing Appellant to defend missing pieces of evidence
that were beyond her ability to preserve. See Flores II, 2018 WL 2327162, at *8.
We hold the admission of the incomplete recordings affected Appellant’s substantial
rights. See TEX. R. APP. P. 44.2(b).
We sustain Appellant’s sole issue.
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Conclusion
We reverse the judgment of the trial court and remand for a new trial.
Laura Carter Higley
Justice
Panel consists of Justices Jennings, Higley, and Massengale.
Do not publish. TEX. R. APP. P. 47.2(b).
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