Castanedanieto, Kevin

IN THE COURT OF CRIMINAL APPEALS
OF TEXAS
NOS. PD-1154-19, 1155-19, 1156-19

THE STATE OF TEXAS

v.

KEVIN CASTANEDANIETO, Appellee

ON STATE’S PETITION FOR DISCRETIONARY REVIEW
FROM THE FIFTH COURT OF APPEALS
DALLAS COUNTY

K ELLER, P.J., delivered the opinion for a unanimous Court.

The trial court suppressed statements made by Appellee during a police interview. The court

of appeals affirmed that decision on a legal theory not presented to the trial court. Appellee’s legal

theories involved whether he understood warnings that were given at the beginning of the interview

and whether the State interfered with his Sixth Amendment right to counsel. The court of appeals’s

legal theory was that statements in a prior interview were obtained through coercion and that caused

his statements in the second interview to be involuntary. We conclude that the court of appeals’s

theory was not a theory of law applicable to the case because the State was not given an opportunity

to develop a complete factual record with respect to that theory. Consequently, we reverse the
 CASTANEDANIETO — 2

judgment of the court of appeals and remand the case to it for further proceedings.

I. BACKGROUND

A. The Interviews

1. First Police Interview

Appellee was arrested for aggravated robbery in the early morning hours of August 10, 2017.

At the time of arrest, Appellee was eighteen years old and had emigrated from El Salvador five years

earlier. Shortly after arrest, around 3:00 a.m., he was interviewed by Detective Thayer.1 This

interview was video recorded.2 During the first several minutes of the interview, the detective

elicited personal information from Appellee and conveyed warnings pursuant to Miranda3 and

Article 38.224:

DETECTIVE: I’ve been working on this case. Kind of a mess, huh? Kind
of a mess. We’ll talk about it here in a minute. Let me just
find out a few things about you. Where are you from?

APPELLEE: Where am I from?

DETECTIVE: Mhmm.

APPELLEE: I’m from El Salvador.

DETECTIVE: From where?

APPELLEE: El Salvador.

1
We have not found a reference to Detective Thayer’s first name in the record.
2
The record includes electronic copies of the interviews, but it does not include a
transcription.
3
Miranda v. Arizona, 384 U.S. 436 (1966).
4
TEX . CODE CRIM . PROC. art. 38.22.
 CASTANEDANIETO — 3

DETECTIVE: You said San Salvador?

APPELLEE: Where I’m born?

DETECTIVE: Yeah, where were you born?

APPELLEE: In El Salvador.

DETECTIVE: Okay and when did you come here?

APPELLEE: 5 years ago.

DETECTIVE: 5 years ago? Take your arms out of your shirt for me.

APPELLEE: Sorry, it’s ‘cause it’s cold.

DETECTIVE: It’s ok. It’s a respect thing though right? Because we’re
going to have a conversation and we’re going to be truthful
with each other. So you came over here 5 years ago, did you
come with family?

APPELLEE: No I just came by myself, because my mom married to my
step-dad and then my step-dad asked for me. So they fix the
papers for me and I came here.

DETECTIVE: So you are how old?

APPELLEE: 18.

DETECTIVE: 18, so you came here 5 years ago. Did you go to school?

APPELLEE: Yes, sir.

DETECTIVE: Did you graduate?

APPELLEE: *Shakes head no*

DETECTIVE: Didn’t graduate?

APPELLEE: No, almost.

DETECTIVE: What about a job? Do you have a job?
 CASTANEDANIETO — 4

APPELLEE: I used to work on air conditioners.
.
DETECTIVE: On air conditioners? Who did you work with?

APPELLEE: Um, quality.

DETECTIVE: Okay, so do you have a job now?

APPELLEE: Not right now.

DETECTIVE: Not right now, okay. How about brothers and sisters?

APPELLEE: I just got one sister.

DETECTIVE: One sister?

APPELLEE: She’s not here.

DETECTIVE: She’s back—

APPELLEE: She’s in Salvador.

DETECTIVE: Who do you live with?

APPELLEE: I was living with my grandma in Garland.

DETECTIVE: Your grandma in Garland? What’s her name?

APPELLEE: Yolanda.

DETECTIVE: Yolanda?

APPELLEE: Yeah.

DETECTIVE: Do you know the address?

APPELLEE: No, because she already moved from Garland. I don’t know
where she lives.

DETECTIVE: You don’t know where she moved to?

APPELLEE: No.
 CASTANEDANIETO — 5

DETECTIVE: So you lived with her but you don’t—

APPELLEE: No, because we was living with my uncle, me, my two
cousins, and my gran. And she moved, so I just lived with my
uncle.

DETECTIVE: So do you stay with your uncle now?

APPELLEE: Mhmm.

DETECTIVE: Where does he stay at? Garland?

APPELLEE: Yes.

DETECTIVE: What’s the address?

APPELLEE: I don’t know the address, but he lives off of Walnut Street.

DETECTIVE: Walnut Street? Walnut Hill or Walnut Street?

APPELLEE: Walnut Street.

DETECTIVE: Walnut Street. Okay. Well before I can talk to you about what
happened tonight, I have to read you your rights. Do you
watch TV at all? Like cop shows or—

APPELLEE: Yeah.

DETECTIVE: Okay. Well I’m going to read these to you. You have the right to
remain silent and not make any statement at all, and any statement
you make may be used against you at your trial. Any statement you
make may be used as evidence against you in court. You have the
right to have a lawyer present to advise you prior to and during any
questioning. If you’re unable to employ a lawyer, you have the right
to have a lawyer appointed to advise you prior to and during any
questioning. And you have the right to terminate the interview at any
time. Do you understand the rights I have read to you?

APPELLEE: *Shakes hand so/so*

DETECTIVE: A little bit? Okay—Well are you—

APPELLEE: It’s just ‘cause I don’t speak a lot of English.
 CASTANEDANIETO — 6

DETECTIVE: Can you read Spanish?

APPELLEE: Yes.

DETECTIVE: Okay, read that for me and tell me if you understand.

APPELLEE: [Reads rights out loud in Spanish]

DETECTIVE: Okay, do you understand?

APPELLEE: *Nods affirmatively*

DETECTIVE: Okay. Are you willing to talk to me—

APPELLEE: Um—

DETECTIVE —and try to figure this all out?

APPELLEE: It’s ‘cause—um—I don’t understand.

DETECTIVE: Okay, let’s talk about what happened tonight.

APPELLEE: Yes, sir.

DETECTIVE: Okay. You know you’re in some trouble, huh?

APPELLEE: I know.

DETECTIVE: You know. You made some bad decisions tonight.

APPELLEE: That’s because, um, I don’t know why I did that.

DETECTIVE: You don’t know why you did it?

APPELLEE: It’s because—Let me tell you the truth.

DETECTIVE: Okay. That’s good, tell me the truth.

Detective Thayer and Appellee then proceeded with the rest of the interview. During the

interview, Appellee mentioned being “fucked up” because he was “doing drugs.” When asked what

kind of drugs, Appellee responded, “weed and cocaine.” When asked how long ago he had used
 CASTANEDANIETO — 7

cocaine, Appellee asked what time it was, and when told it was almost four in the morning,

responded that he used cocaine at “eleven.”

2. Arraignment

That evening, Appellee was brought before a magistrate for arraignment. According to the

arraignment sheet, the magistrate informed Appellee of a number of rights and warnings, including

those required by Miranda:

I have in clear language informed the person arrested of the accusation against him
and of any Affidavit filed herewith, and of his right to retain counsel, and of his right
to the appointment of counsel if he is indigent and cannot afford counsel, and of his
right to remain silent, and of his right to have an attorney present during any
interview with peace officers or attorneys representing the State, and of his right to
terminate the interview at any time, and of his right to have an examining trial. I
informed the person arrested that he does not have to make any statement at all, and
that any statement made by him may be used in evidence against him on his trial for
the offense concerning which the statement is made. I informed the person arrested
that reasonable time and opportunity would be allowed him to consult counsel and
of his rights to bail if allowed by law. I also informed the person arrested that if he
is not a citizen of the United States that he may have the right to contact consular
officials from his country and that if he is a citizen of certain countries that consular
officials would would be notified of this arrest without further action required on his
part.5

When asked whether he wanted an appointed lawyer, Appellee informed the magistrate that he did.6

3. Second Police Interview

The next evening, August 11, Detective Olegario Garcia went to the jail and asked Appellee

if he would come to police headquarters for an interview. Appellee agreed. Detective Garcia

5
The record indicates that the magistrate notified the El Salvador consulate of the charges
against Appellee.
6
The next day Appellee was appointed an attorney, but that attorney declined representation.
Three days later, Appellee was appointed the attorney who represented him at the motion to suppress
hearing.
 CASTANEDANIETO — 8

brought food from McDonald’s and left Appellee in the interrogation room to eat before the

interview started. When the detective came back, he joked that Appellee was eating the burger

slowly. Appellee responded, “It’s probably the last hamburger I’m going to eat. I hope not, but I

don’t know.” Detective Garcia responded, “It will not be the last hamburger you eat man, so don’t

worry about that. Alright, just want to get some basic stuff out of the way.”

Detective Garcia then began by eliciting basic identifying information (name, address, date

of birth), asking about family members, and inquiring about life in El Salvador. Then he turned to

the subject of answering questions, and conveyed warnings required by Miranda and Article 38.22:

DETECTIVE: Alright, basically we’re going to go over everything that you
talked about with the other Detective and now that you’ve had
a couple days to think about stuff maybe you might remember
something that you didn’t or you might have some questions
of your own for me that I’ll try to answer, okay? If I don’t
know the answer, I’ll tell you. And if I do, you know I’ll be
honest with you and give you the information. Okay?

APPELLEE: I’m gonna do the same, ask me anything you want. I’ll tell
you, I’m going to tell you the truth.

DETECTIVE: Alright, [the other detective] read this to you. But everybody
who comes in here, we read this to you. You have the right
to remain silent and not make any statement at all and any
statement you make may be used against you at your trial.
Any statement you make may be used against you as evidence
in court. You have the right to have a lawyer present to
advise you prior to and during any questioning. If you’re not
able to employ a lawyer you have the right to have a lawyer
appointed to you to advise you prior to or during any
questioning, and you have the right to terminate the interview
at any time. Do you understand the rights I read to you?

APPELLEE: Yes, sir.

DETECTIVE: Alright, are you willing to talk to me about, basically going
over everything?
 CASTANEDANIETO — 9

APPELLEE: Yeah, I’m gonna tell you—I’m gonna start by basically saying
what it was I was doing.

Detective Garcia and Appellee then proceeded with the rest of the interview.

B. Motion to Suppress

1. Written Pleading

Defense counsel filed an omnibus pretrial motion, which included the following sentence:

“Defendant requests a hearing prior to the introduction of any statements allegedly made by the

Defendant, either orally or in writing, to determine the admissibility of same. TEX . CODE CRIM .

PROC. ANN . article 38.22, 38.23.”

2. Defense Counsel’s Initial Oral Claims

At the suppression hearing, defense counsel initially claimed that the statements from the first

interview should be suppressed because Appellee “didn’t demonstrate a full awareness of the rights

he was waiving and [the] meaning of the waiver of those rights.” As for the statements from the

second interview, counsel stated that “we carry 1 over to number 2, but additional grounds for

number 2 is the State reinitiated contact, not the defendant, and therefore” the statements from the

second interview were inadmissible.

3. State’s Witness

The State responded that it sought to admit only the statements from the second interview.

In support of its position, the State called Detective Garcia, the sole live witness at the suppression

hearing. The prosecutor asked him if he had “any issues communicating” with Appellee between

the jail and police headquarters. Detective Garcia answered, “No.” When asked what he did to

make sure the two of them understood each other in the interview room, the detective responded that
 CASTANEDANIETO — 10

he did so by “just getting basic information,” such as name and address and other common

information to “break the ice” and build rapport. When asked whether any of his questions were

designed to help him understand Appellee’s education level and language skills, Detective Garcia

answered affirmatively and said, “He was able to spell the street that he lived on. His pronunciation

seemed well. I personally don’t speak Spanish at all, so I was able to understand everything he was

saying.” When asked if Appellee ever switched to Spanish, the detective responded, “No.”

Turning specifically to the recorded interview, the prosecutor asked the detective if he ever

had any concerns that Appellee was not understanding him. Detective Garcia answered, “No, I felt

like he understood what I was saying.” When asked if that was based on “language, education level,

mental acuity,” the detective responded that it “seemed like he understood what I was saying, was

able to respond properly to the questions I was asking. He had an understanding of slang words, you

know. I think that showed me he was ingrained into the culture here in the United States.” When

asked for an example of the slang Appellee used, Detective Garcia noted that Appellee used the word

“strap” to describe a gun. Detective Garcia further testified that he read Miranda warnings to

Appellee and that these warnings were verbatim from a card. The detective further stated that, when

he finished reading the warnings, he asked Appellee if he understood the rights that were read, and

Appellee responded, “Yes,” and nodded his head. The detective also testified that he asked Appellee

if he was willing to talk to him, and Appellee said he was willing to and started talking about what

happened.

The prosecutor then asked if the detective ever promised Appellee anything in exchange for

his statement. Detective Garcia responded, “No.” A few questions later, the prosecutor asked,

“[D]id you threaten him in any way or coerce him in any way to talk to you about both the offenses
 CASTANEDANIETO — 11

that you were investigating and the offenses he’d already been arrested for?” Again, Detective

Garcia answered, “No.” The prosecutor followed up: “Did it seem, based on your communication

with him, that he was voluntary—voluntarily telling you all of these things?” Detective Garcia

responded, “Correct.” The prosecutor also asked if the detective talked to Appellee about “making

any kind of deal down the road or making a call on his behalf or anything like that,” and Detective

Garcia responded, “No.”

After Detective Garcia finished testifying, the State tendered the Court’s file, which included

the arraignment forms.

4. Defense’s Case

After the State rested, defense counsel had the first four minutes of the first interview played

for the trial court. After the video segment was played, the following colloquy occurred:

[DEFENSE COUNSEL]: Can we stop it there? Can we back up to 3:37:45 and
play to 51 again? Judge, this is where the defendant
says he doesn’t—it’s not the language barrier. It’s
where he doesn’t understand his rights.

THE COURT: Okay.

[PROSECUTOR]: Can I start it there?

[DEFENSE COUNSEL]: That’s fine. Yeah, that’s fine. (Video playing.)

THE COURT: He said he didn’t—“I don’t understand.”

[DEFENSE COUNSEL]: He says, “I don’t understand.” We can stop it there.
I rest.

THE COURT: Okay. The question was, “You want to talk to me?”
“I don’t understand.”

[DEFENSE COUNSEL]: Yes, sir.
 CASTANEDANIETO — 12

[PROSECUTOR]: The question actually was, “You willing to talk to me
and try to figure this all out?” He says, “It’s because
I do not understand.”

THE COURT: “Because I do not understand.”

[DEFENSE COUNSEL]: Does not understand.

THE COURT: Uses the word “because”?

[PROSECUTOR]: He says, “It’s ’cause.”

THE COURT: “It’s ’cause.”

[PROSECUTOR]: After the question, “Do you understand?” Then he
nods in the affirmative. Then it’s the “figure out”
part.

THE COURT: Okay.

[DEFENSE COUNSEL]: And we rest, Judge.

THE COURT: Okay.

[PROSECUTOR]: State closes.

[DEFENSE COUNSEL]: And we close.

5. Defense’s Suppression-Hearing Argument

Defense counsel began his argument to the trial court by saying, “We’re not talking about

a language barrier. We’re talking about whether or not the defendant understands his rights and the

consequences of waiving them.” Defense counsel then suggested that, in the first interview,

Appellee did not know English well enough to understand his Miranda rights and to intelligently

waive them:

After the rights are read in English, he indicates that he doesn’t understand English
well enough to go over the legal parts, and so the officer has him read the card in
Spanish, which he does.” When he reads the card in Spanish, the officer proceeds
 CASTANEDANIETO — 13

and asks him if he understands. The defendant clearly, when he refers to, “I don’t
understand,” is referring to the waiver of his rights and the consequences of waiving
them. And under Moran vs. Burbine, that is a lack of awareness of–you can’t waive
your rights if you don’t have a full awareness of the nature of the right being
abandoned and the consequences of doing so. . . .We have him expressing he doesn’t
understand. . . . In this case, the defendant expressed the fact that he did not
understand the rights that he was waiving. . . . Judge Richter wrote the opinion saying
that you have to have an unequivocal expression of a waiver under the amendment.
And in this case, the defendant did say he didn’t understand, so that’s factually
different.

Defense counsel then contended that this lack of understanding necessarily carried over to the second

interview:

Now, that applies to the second confession in the following way: My client didn’t
gain an understanding of what he was doing under the Constitution in the intervening
hours between confession 1 and confession 2. So the Miranda warnings given by the
second detective don’t cure the problem that we had from the first.

Defense counsel also claimed that the statements in the second interview were inadmissible because

Appellee asked for an appointed attorney at his arraignment (which occurred between the two

interviews), and the police reinitiated contact with him in violation of the Sixth Amendment right

to counsel:

We also move to suppress the confession because this confession was taken after my
client was arraigned on all of the robberies that were discussed. . . . My client, when
he was arraigned, expressed that he wanted a lawyer. He checked the box, said, Yes,
I do want a court appointed lawyer. At the time he was arraigned, that’s a critical
stage of the prosecution. . . . The rationale for this is that once the right to counsel
attaches under the Sixth Amendment, the defendant’s afforded more protections
because now he’s expressing the idea that, I do not want to deal with the State any
further except through counsel. Because the entire equation has now been changed.
He’s not—no longer under investigation. He has now been charged and brought over
and arraigned. And he asks for a lawyer, and a lawyer was appointed. The reason
we go to the trouble of appointing a lawyer right away is so the Sixth Amendment
rights attach. This is no longer just a Fifth Amendment problem. Now it’s a Sixth
Amendment problem. . . . Under the circumstances we have, the police cannot
reinitiate contact with the defendant after he has been interviewed and after he has
been arraigned and appointed a lawyer. The second interrogation took place after [an
 CASTANEDANIETO — 14

attorney7] was appointed, after the critical stage had begun. And they just can’t do
that.

Summing up his claims, defense counsel stated, “And we request that you suppress the second

confession on those two bases. Number 1, it was made without full awareness, which is the fruit of

the poisonous tree from the first interrogation; and number 2, because the Sixth Amendment was

clearly violated in attaining this second confession.”

6. State’s Suppression-Hearing Argument

The prosecutor first argued that Appellee’s responses in the second interview showed that

he understood his rights:

I’ll address the first issue with regard to the defendant’s motion under 38.22 and
38.23. First, Your Honor, with regard to whether or not the statement was given
voluntarily, as you could see from the statement in question, the one and the only one
we are trying to admit as evidence in this case, we are talking about when the officer
read to him his Miranda warnings, his response to, “Do you understand the rights I
have read to you” was a nod of his head in the affirmative and to say, “yes.” That,
as he pointed out, Justice Richter has found in the past to be unequivocal. And he did
at that point voluntarily waive his rights and agree to speak with counsel—or excuse
me, agree to speak with the detective. . . . Once again he does confirm by nodding his
head and saying yes, that he does understand those rights.

The prosecutor also pointed out that, in addition to being informed of his rights in the first interview,

Appellee was also informed, a second time, at the arraignment by a magistrate. And the prosecutor

also contrasted the conditions of the first and second interview to explain how Appellee’s

understanding of his rights could have differed at those two times:

Your Honor, he was brought in to custody August 10th in the wee hours of the
morning. And you saw from his statement on August llth that he had been drinking
for a week, that he had been smoking marijuana, that he had been partaking in
cocaine for the first time. So any of his statements or what—where his mental state
was when he was given the rights in English and again in Spanish have no bearing

7
This was the attorney who declined representation.
 CASTANEDANIETO — 15

on what he understood when he was given those rights 48 hours later after a long
period of sobriety in the jail. So we believe that to the first point, Kevin
Castaneda-Nieto, when he sat down voluntarily with the detective on August llth, did
understand his rights, did knowingly waive those rights and did agree to speak
voluntarily. Understanding that he did have the right to say, “I want my lawyer to be
with me,” understanding that he did have the right to remain silent and understanding
that he could have ended that at any point in time, knowing those rights, he waived
those rights and agreed to speak with the detective voluntarily.

The prosecutor and the defense also argued back and forth on the claim that a Sixth

Amendment right-to-counsel violation had occurred because the police reinitiated contact with the

defendant after he had requested counsel at arraignment.

7. Trial Court’s Ruling and Reconsideration

The trial court granted the motion to suppress. The State filed a motion for reconsideration

on the basis of Montejo v. Louisiana.8 The State’s argument was that Montejo defeats Appellee’s

Sixth Amendment claim. The trial court granted reconsideration to hear the State’s argument.

Defense counsel argued that the case did not apply because state caselaw still applied and statutory

law (Article 38.22) was stricter than the Sixth Amendment. The trial court reaffirmed its original

ruling granting the motion to suppress.

C. Appeal

The court of appeals concluded that the trial court could have based its suppression ruling

“in part on the continued behavior of law enforcement figures declaring to [Appellee] that he would

speak to them in the interrogation setting.”9 The appellate court found that the evidence supported

an inference that two declarative statements made by Detective Thayer in the first interview “set the

8
556 U.S. 778 (2009).
9
State v. Castanedanieto, ___ S.W.3d ___, Nos. 05-18-00870-CR, 05-18-00871-CR,
05-18-00872-CR, 2019 Tex. App. LEXIS 8884, *7 (Tex. App.—Dallas October 3, 2019).
 CASTANEDANIETO — 16

tone for an expectation that [Appellee] would speak to authorities that overbore [Appellee’s] will

and made his statements involuntary.”10 The court of appeals characterized Detective Thayer as

“going through the motion of providing Miranda warnings in English and Spanish.”11 The court

found that Appellee expressed hesitation about his rights by acts and words, and it criticized

Detective Thayer for failing to elicit any verbal or nonverbal assent from Appellee to waiving his

Miranda rights.12

The court of appeals also concluded that Detective Garcia, though to a lesser extent,

“declared” to Appellee that he would talk.13 The court further found it significant that Detective

Garcia reminded Appellee of the prior interrogation and confession, “suggesting he may have more

to tell the second time around.”14 The court of appeals found this reference to give the trial court

sufficient basis to conclude that Appellee’s confession “was motivated, if only in part, by so-called

cat-out-of-the-bag thinking.”15

The court of appeals then discussed Sterling v. State,16 which set forth factors to be

considered when determining whether an earlier confession’s illegality tainted a later confession.17

10
Id.
11
Id.
12
Id.
13
Id.
14
Id. at *7-8.
15
Id. at *8.
16
800 S.W.2d 513 (Tex. Crim. App. 1990).
17
Castanedanieto, 2019 Tex. App. LEXIS 8884 at 8-10.
 CASTANEDANIETO — 17

The court of appeals contrasted the present case with Sterling by pointing out that Sterling’s motion

to suppress was denied by the trial court but Appellee’s was granted.18 The court of appeals

emphasized that the trial court had wide discretion and concluded that the videos of the interviews

did not contain indisputable evidence contrary to the exercise of that discretion.19 And focusing on

the video of the second interview, the court of appeals said that nothing in it demonstrated that

Appellee “was not under the influence of the detectives’ declarations that he would speak to them

or that he was not motivated at least in part by cat-out-of-the-bag thinking.”20

The court of appeals also noted the Supreme Court case of Oregon v. Elstad,21 which held

that there was no presumption that an earlier confession taken without Miranda warnings would

cause a later confession in compliance with Miranda to become involuntary.22 But the court

concluded that Elstad did not change the appellate court’s job to review the trial court’s ruling for

an abuse of discretion and that the case did not require an appellate court to “reweigh the facts in a

way that may warrant a conclusion that denying the motion was possible.”23

Concluding that the trial court did not abuse its discretion in granting the motion to suppress,

the court of appeals affirmed.24

18
Id. at *9-10.
19
Id. at *10-11.
20
Id. at *11.
21
470 U.S. 298 (1985).
22
Castanedanieto, 2019 Tex. App. LEXIS 8884 at *11-12.
23
Id. at *12.
24
Id.
 CASTANEDANIETO — 18

II. ANALYSIS

A. The Issue Here

Defense counsel presented the trial court with two legal theories for suppressing the

statements from the second interview: (1) that Appellee did not understand the Miranda/Article

38.22 warnings in the first interview and that this lack of understanding carried over to the second

interview, and (2) that the State violated Appellee’s Sixth Amendment right to counsel by reinitiating

questioning after Appellee had requested appointed counsel at arraignment. But the court of appeals

did not address either of these theories. Instead, the appellate court upheld suppression of the

evidence on a third, unargued theory (“coercion” theory): that Appellee’s will was overborne by

declarative statements made by the detective in the first interview and that this coercion carried over

to the second interview based at least in part on the fact that the “cat was out of the bag” (because

he had incriminated himself in the first interview).

In its first ground for review, the State contends that this “coercion” theory was not a theory

of law applicable to the case because the State did not have the opportunity to litigate it before the

trial court.25 Appellee responds that the State litigated the coercion theory before the trial court when

it asked Detective Garcia whether he threatened Appellee at the second interview and whether the

statements in that interview were voluntary. The State also raises claims about the Sterling factors

and video as indisputable evidence, but as we shall see, these claims are subsumed or mooted in our

25
This ground reads: “Under the Calloway rule, is police coercion of a confession a ‘theory
of law applicable to the case’ where the appellee argues that he lacked a ‘full understanding’ of his
Miranda rights in a different statement?”
 CASTANEDANIETO — 19

discussion.26

B. The Calloway Rule

The “Calloway rule” dictates that a claim of reversible error on direct appeal should be

rejected if the trial court’s ruling is correct “on any theory of law applicable to the case” even if “the

trial court did not purport to rely on that theory” and the prevailing party did not explicitly raise the

theory.27 But courts have resisted employing the Calloway rule “when to do so would work a

manifest injustice” to the party appealing.28 While a legal theory can support a trial court’s ruling

even if not explicitly raised or relied upon, the theory must in some basic way be “a theory of law

applicable to the case.” A legal theory is not applicable to the case if the appealing party did not

have an adequate opportunity to develop a complete factual record with respect to the theory.29 The

question in this case, then, is whether the State had an adequate opportunity to develop a complete

26
The State’s second ground reads: “In reviewing a trial court’s ruling on a motion to
suppress, the reviewing court must give deference to the trial court’s resolution of the facts and
review de novo the legal significance of those facts. May the court of appeals infer that a confession
is involuntary as a matter of fact instead of applying the relevant legal test to the facts supported by
the record?” The State’s third ground reads: “In deferring to the trial court’s implied resolution of
the facts, must the court of appeals ignore indisputable video evidence that the defendant
affirmatively waived his Miranda rights?” In connection with these grounds, the State contends that
the court of appeals failed to properly apply the Sterling factors to determine whether the taint of the
first interview was attenuated for the second interview, and the State contends that the court of
appeals ignored indisputable video evidence from the video of the second interview. Appellee
responds that the Sterling factors are not exclusive, that the court of appeals implicitly considered
at least some of them, that lack of attenuation can be decided as a matter of fact and not just law, and
that the video evidence of the second interview is not indisputable because it must be examined in
light of the first interview.
27
State v. Esparza, 413 S.W.3d 81, 85-86 (Tex. Crim. App. 2013).
28
Id. at 89.
29
Id. at 90.
 CASTANEDANIETO — 20

factual record with respect to the coercion theory relied upon by the court of appeals.

C. Did the Defendant’s Theories Give the State an Adequate Opportunity
to Develop a Complete Factual Record on the Unraised Coercion Theory?

We first address whether the defendant’s legal theories at the suppression hearing gave the

State an adequate opportunity to develop a complete factual record on the coercion theory. Because

we can most easily dispense with the Sixth Amendment theory, we address it first. Appellee’s claim

was that his Sixth Amendment right to counsel attached at arraignment and that this right was

interfered with when Detective Garcia initiated the second interview, which occurred after

arraignment. For this claim, arraignment was the key event, and nothing that occurred before

arraignment was relevant.30 The first interview occurred before arraignment. Because the coercion

theory depends on a finding of coercion at the first interview, and the first interview had no relevance

at all to the Sixth Amendment claim, the Sixth Amendment claim did not put the State on notice of

the need to develop facts that would ultimately be relevant to the coercion theory.31

Next, we turn to the claim that Appellee did not understand the warnings that were given

pursuant to Miranda and Article 38.22. Although that claim was based on what occurred at the first

interview, there is a significant factual difference between not understanding one’s rights and being

30
See Texas v. Cobb, 532 U.S. 162, 167-68 (2001) (“The Sixth Amendment right [to
counsel] . . . is offense specific. It cannot be invoked once for all future prosecutions, for it does not
attach until a prosecution is commenced, that is, at or after the initiation of adversary judicial
criminal proceedings—whether by way of formal charge, preliminary hearing, indictment,
information, or arraignment.”) (quoting McNeil v. Wisconsin, 501 U.S. 171, 175 (1991)) (bracketed
material and ellipsis in Cobb).
31
Because the court of appeals did not address Appellee’s Sixth Amendment claim, we have
no occasion to address it or to discuss the State’s reliance on Montejo.
 CASTANEDANIETO — 21

coerced into making a statement.32 And these factual scenarios need not align. A person could

understand his rights with perfect clarity and still be coerced. Conversely, a person could give a

statement with complete volition but not understand his rights.

Moreover, a finding of coercion carries more far-reaching consequences for later statements

than a finding of noncompliance with Miranda or Article 38.22.33 If a statement is coerced, then

later statements are presumptively the fruit of the poisonous tree and are admissible only if the taint

has been shown to be attenuated.34 By contrast, a failure to comply with Miranda in a prior

interview gives rise to no such presumption and ordinarily does not bar statements made in a

subsequent interview that does comply with Miranda.35 The only exception is when the police

engage in a two-step interrogation technique “in a calculated way to undermine the Miranda

warning.”36 Likewise, Article 38.22 simply prescribes the conditions that must be met for a

particular statement to be admissible; the failure of a statement to satisfy its conditions does not give

rise to an independent illegality that would render inadmissible a later statement that complies with

32
See Elstad, 470 U.S. at 312 (“There is a vast difference between the direct consequences
flowing from coercion of a confession by physical violence or other deliberate means calculated to
break the suspect’s will and the uncertain consequences of disclosure of a ‘guilty secret’ freely given
in response to an unwarned but noncoercive question.”).
33
Id.
34
See Elstad, 470 U.S. at 317-18.
35
Elstad, 470 U.S. at 314. See also Contreras v. State, 312 S.W.3d 566, 582-83 & nn.59,
60 (2010) (“The failure to observe those practices—give warnings, honor warnings, etc.—is not
itself a constitutional violation, but the admission, in certain circumstances, of a statement that was
taken without observing those practices is.”) (holding Art. 38.23 inapplicable to Miranda violations,
citing Elstad).
36
Carter v. State, 309 S.W.3d 31, 38-39 (Tex. Crim. App. 2010) (discussing Missouri v.
Seibert, 542 U.S. 600 (2004)).
 CASTANEDANIETO — 22

the statute.37 In the Miranda and Article 38.22 contexts, a prior non-compliant statement does not

taint a later compliant statement, so there is no occasion to conduct an attenuation analysis.38

Although it is true that Appellee claimed that the statements in the second interview were a

fruit of the poisonous tree and that the lack of knowledge in the first interview carried over to the

second interview, his legal theories were of the sort that do not involve a traditional “taint” analysis.

The State’s focus on the second interview and its decision to introduce only Detective Garcia’s

testimony was consistent with a belief that the State would not have to address a taint flowing from

the earlier statement. But in relying partially on a “cat out of the bag” theory, the court of appeals

used a “taint” analysis.39

Even if Appellee’s allegation of carry-over should have given the State some incentive to

introduce evidence from Detective Thayer regarding the circumstances surrounding the first

interview, that incentive was largely blunted by other factors. First, as we have just discussed, in

assessing compliance with Miranda or Article 38.22, an interview typically stands on its own.

Second, the record as it stood provided an obvious explanation for concluding that there was no

carry-over of any confused mental state on Appellee’s part from first interview to the next. The first

37
See Davidson v. State, 25 S.W.3d 183, 186 n.4 (Tex. Crim. App. 2000) (“[A]rt. 38.22
merely prescribes the various requirements that must be satisfied before a statement made by an
accused as a result of custodial interrogation will be admitted against him/her at trial. That such
requirements are not met does not mean that the statement was necessarily obtained as a result of any
legal or constitutional violation, and art. 38.22 mandates exclusion of such statements by its own
terms and without reference to art. 38.23.”); Thai Ngoc Nguyen v. State, 292 S.W.3d 671, 676-77
(Tex. Crim. App. 2009) (quoting from Davidson).
38
See supra at nn.35, 37.
39
See Elstad, 470 U.S. at 302; United States v. Bayer, 331 U.S. 532, 540-41 (1947); Sterling,
800 S.W.2d at 519-20.
 CASTANEDANIETO — 23

interview occurred in the wee hours of the morning after Appellee had used drugs. The second

interview occurred almost two days later, in the evening, after Appellee had eaten. Third, Appellee’s

rights had been explained to him previously by a magistrate. The second interview would have been

the third occasion for Appellee to hear his rights and the second one to do so after having the

opportunity to sleep and have the effects of drugs wear off. We need not and do not decide whether

the State would prevail against Appellee’s lack-of-understanding claim. We observe only that the

State had every reason to believe its position was strong without having to produce witnesses

relevant to the voluntariness of Appellee’s participation in the first interview.

That would all change if Appellee’s claim had been that Detective Thayer coerced his

participation in the first interview. Coercion would carry a presumptive taint that the State would

have to show was attenuated. The State would have had a good reason to try to establish that no

coercion occurred in the first place, and to do that, the State would need witnesses who could speak

to the circumstances surrounding the first interview. The State’s incentive to call Detective Thayer

would have been significantly stronger. Also, the State might have wanted to proffer testimony

about Appellee’s arrest, which occurred much closer in time to the first interview than to the second.

And because coercion implicates a taint analysis, the State would have had at least some incentive

to explore in greater detail any intervening circumstances that occurred between the first and second

interviews, such as Appellee’s appearance at arraignment.

Given all of these factors, we conclude that defense counsel’s claims at the motion to

suppress hearing did not afford the State an adequate opportunity to develop a complete factual

record on the coercion theory.

C. Did the State Raise the Coercion Theory so as to Create
 CASTANEDANIETO — 24

an Adequate Opportunity to Develop a Complete Factual Record?

Appellee contends, however, that the State raised the coercion theory through Detective

Garcia’s testimony. More specifically, Appellee contends that the coercion theory was raised when

the prosecutor elicited testimony from the detective that he did not threaten Appellee and that

Appellee’s statements appeared to be voluntary. It is true that the prosecutor elicited this testimony

from Detective Garcia. For that matter, the prosecutor also elicited testimony that the detective did

not promise Appellee anything in exchange for his statement and did not discuss or make any deals

with him.40

All of this is the sort of testimony that prosecutors commonly elicit when a confession is

being challenged as impermissibly extracted, regardless of the precise nature of the defendant’s

claim.41 It would be questionable to rely upon this testimony to create defense theories of law

applicable to the case when the defense attorney did not purport to dispute or controvert this

testimony at the hearing. When the State puts on an officer who testifies that he did not coerce the

defendant, and the defense makes no effort, through argument or evidence, to controvert the accuracy

of that statement, a reasonable inference is that the defense is satisfied with that aspect of the State’s

testimony and is not in fact raising a challenge to it. Appellee’s defense attorney never once

suggested in his argument to the trial court that Appellee was coerced into participating in either of

the interviews, nor did the defense present any testimony that explicitly suggested that.

The court of appeals relied on what it deemed to be“declarative” statements by the officers

40
We refer to the testimony about promises, in addition to testimony about coercion, for
illustrative purposes only and do not suggest that these issues are necessarily intertwined.
41
This practice seems especially understandable when the State is the first party to present
evidence at the suppression hearing—as occurred here.
 CASTANEDANIETO — 25

in the interviews, as depicted by the videos. These statements are, at best, evidence from which

coercion might be inferred. Even if such an inference is something the trial court could ultimately

rely upon, if the issue were otherwise raised, it hardly seems to be a clear communication to the

State that its witness’s testimony of “no coercion” is being controverted. Perhaps in an appropriate

case, an officer’s statements in an interview video could be blatant enough that an inference of

coercion would be immediately self-evident. The statements in the present case do not rise to that

level.

In any event, the court of appeals’s holding depends on a conclusion that the first interview

was coercive. Detective Garcia did not testify about the first interview. He did not say that the first

interview was not coercive. He only testified about the second interview. Even if his testimony

about the second interview could raise coercion as a theory of law applicable to the case, it would

not raise it as to the first interview. Consequently, Detective Garcia’s testimony did not place the

State on notice that it needed to develop a complete factual record on whether coercion occurred at

the first interview.

D. Conclusion

The court of appeals resolved the appeal on a coercion theory that was not a theory of law

applicable to the case. The court of appeals has not addressed the theories of law that Applicant

presented to the trial court. The State’s first ground for review is sustained. The State’s two

remaining grounds, regarding the Sterling attenuation factors and the conclusiveness of video

evidence, involve issues that might not even apply the same way to the types of claims the court of

appeals needs to resolve. Any resolution of the State’s two remaining grounds would be premature,

so we decline to address them at this time.
 CASTANEDANIETO — 26

We reverse the judgment of the court of appeals and remand the case for further proceedings

consistent with this opinion.

Delivered: September 16, 2020

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