Opinion issued August 29, 2014
In The
Court of Appeals
For The
First District of Texas
————————————
NO. 01-12-00324-CR
———————————
CRISTOBAL GALVAN-CERNA, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 155th District Court
Austin County, Texas
Trial Court Case No. 2009R-0091
OPINION
A jury found Cristobal Galvan-Cerna guilty of capital murder 1 and the trial
court assessed his punishment at life without parole. Appellant’s first point of
1
See TEX. PENAL CODE ANN. §§ 19.02(b)(1), 19.03(a)(2) (West 2012).
error contends that the evidence is insufficient to support the verdict. His second
and third points maintain that the trial court erred in overruling his motion to
suppress his custodial statement because the warnings given did not comply with
Texas Code of Criminal Procedure article 38.22 and he did not waive his rights.
We affirm.
Background
On arrival at his Austin County ranch for a weekend visit with his wife and
infant son, Dr. Jorge Mario Gonzalez, went inside the house ahead of his wife. As
Charleen was walking towards the house, she saw a man dressed in black approach
her from around the corner of the porch. She ran into the house screaming for Dr.
Gonzalez to get his gun. As the doctor went to the bedroom closet to grab his gun,
Charleen tried to hide in the bathroom and called 9-1-1. Charleen saw Dr.
Gonzalez leave the bedroom and moments later heard several gunshots. Shortly
afterward, someone tried to force open the bathroom door. She could see several
men dressed in black and wearing black masks outside the bathroom window, but
they eventually fled.
Bellville Police Department Officer Chris Rosales responded to Charleen’s
9-1-1 call at approximately 12:10 p.m. At an intersection leading toward the
Gonzalez ranch, Rosales saw a white truck and a burgundy car approaching him at
2
a high rate of speed, and as the vehicles sped through the intersection he heard a
gunshot and saw a handgun extended out of the white truck’s passenger-side
window. Rosales attempted to pursue the truck but eventually lost sight of it and
continued to the Gonzalez ranch. On arrival at the ranch, Rosales and other
officers found the Gonzalez’s son, Mario, next to Dr. Gonzalez’s truck, and Noel
Cerna, the Gonzalez’s ranch hand (and appellant’s brother), sitting in a chair
holding his wounded arm. They also found the doctor, dead in the kitchen, shot
four times.
Highway Patrol Sergeant Joseph Evans responded to the crime scene at 1:30
p.m. En route to the ranch, he drove behind two Hispanic males in a white truck
matching the description of the truck that had passed Officer Rosales, and recorded
the license plate. Learning later that the suspects fled in the same direction as the
white truck, he gave the registration information to the Texas Rangers
investigating Dr. Gonzalez’s murder. Sergio Bustillo, Noel’s mother’s boyfriend,
was the owner.
Crime scene experts later found six shell casings and four bullets at the
scene. Two other bullets were recovered from Dr. Gonzalez’s body during an
autopsy. Ballistics tests revealed that the casings and bullets had been fired by a
single weapon, a 9mm Baretta.
3
Investigators found foot tracks from near the house toward the back gate.
The path revealed tire tracks near the back gate which led to a nearby area where
they discovered masks, clothing, and duct tape on the ground. Later DNA testing
of the items revealed a match to appellant’s cousin, Misael Santollo (a sweatshirt,
gloves, and a cap), and to appellant’s brothers, Moises (a stocking cap) and Noel (a
glove). The testing also revealed a DNA match with appellant (a glove and a cap).
Subsequent investigation revealed:
• At 6:03 a.m. on the morning of the murder, appellant, Moises, Noel,
and Santollo were videotaped arriving at a West Houston Shell gas
station in a red Honda Civic and a white Ford F-150 truck;
• At 6:45 a.m., toll road cameras recorded both vehicles traveling
westbound toward Austin County;
• At 7:23 a.m., appellant, Moises, Noel, and Santollo were shown on
video entering a McDonald’s restaurant in Sealy where they remained
for approximately twenty minutes before leaving; 2
• At 9:00 a.m., the motion-activated security cameras on the exterior of
the Gonzalez’s ranch were moved and re-directed into a different
position;
2
The city of Sealy, located at the intersection of I-10 and State Highway 36, lies on
the route from Houston to Bellville.
4
• At 9:52 a.m., Noel called Dr. Gonzalez; at 10:25 a.m., Noel called
Santollo; at 10:30 a.m., Santollo called Noel back; at 10:30 a.m., Dr.
Gonzalez called Noel shortly before picking Noel up; at 10:38 a.m.,
Noel sent a text message to Santollo to which Santollo responded
moments later;
• At 10:40 a.m., highway toll records showed the red Honda (but not
the Ford F-150) again passing through the westbound toll headed back
toward Austin County;
• At 11:46 a.m., Noel sent another text message to Santollo shortly
before the Gonzalezes arrived with Noel at the ranch;
• At 11:55 a.m.—moments before the Gonzalezes arrived at the
ranch—the security camera was moved again and then detected
several individuals approaching the house under a fence line at the
back of the property;
• At 12:09 p.m., after Charleen’s 9-1-1 call, the security camera
detected three individuals running from the scene toward the back
fence line; and
• Between 1:17 and 3:35 p.m., appellant attempted to reach Santollo on
his cell phone twenty-three times.
5
Appellant was arrested during the late night hours of August 27, 2009, on an
unrelated charge. Prior to being questioned, appellant was allowed soft drinks,
restroom breaks, and food. Texas Ranger Noe Diaz advised appellant of his
Miranda rights in Spanish. Appellant gave no indication of misunderstanding
what he had been told nor did he attempt to invoke any of the rights Diaz had
explained. Ranger Diaz and Department of Public Safety Lieutenant Rick Muniz
then began questioning appellant.
During the videotaped interview, appellant conversed with the investigators
in Spanish. Appellant admitted participating in the crime but stated that another
person named “Pollo” was involved. He claimed that the plan was to commit a
kidnapping and robbery by tying up and threatening Dr. Gonzalez’s wife and child
in order to coerce Dr. Gonzalez into withdrawing money from the bank. Appellant
claimed that as they entered the property, “Pollo” went first, carrying a black gun.
Appellant told police that the plan was for Santollo to go to the bank with Dr.
Gonzalez and, “[i]f a mistake was made, we would do something bad to his wife or
his child.” Appellant told investigators that when things started to go wrong,
“Pollo” and Dr. Gonzalez began shooting at one another. Appellant further told
them that after the shooting “Pollo” picked up Dr. Gonzalez’s gun, and that
“Pollo,” Moises, and appellant fled. After Ranger Diaz told appellant that he did
6
not believe “Pollo” existed, appellant began to interchange “Pollo” with
“Santollo.” The interview lasted less than two hours.
After the video-recorded interview, and while he was sitting in the hallway
outside the interview room, appellant volunteered to take the investigators to the
guns involved in the crime. Appellant then took them to the apartment of Santos
Aviles, to whom appellant claimed he had given the guns. Aviles had Dr.
Gonzalez’s stolen gun and another gun in the trunk of his car. The second gun was
a black Baretta later identified as the murder weapon.
Discussion
In his first point of error, appellant contends that the evidence is insufficient
to support the jury’s verdict that he committed the offense of capital murder. In his
second and third points of error, he argues that the trial court erred in overruling
his motion to suppress his custodial statement because the warnings given did not
comply with Texas Code of Criminal Procedure article 38.22 and he did not waive
his rights.
Sufficiency of the Evidence
A. Standard of Review
We review evidentiary sufficiency challenges under the Jackson v. Virginia
standard. See Brooks v. State, 323 S.W.3d 893, 895 (Tex. Crim. App. 2010).
Under this standard, we review the evidence in the light most favorable to the
7
verdict, and ask whether any rational fact-finder could have found that each
essential element of the charged offense was proven beyond a reasonable doubt.
See Jackson, 443 U.S. at 319, 99 S. Ct. at 2789; Laster v. State, 275 S.W.3d 512,
517 (Tex. Crim. App. 2009). The jury is the sole judge of the credibility of
witnesses and the weight to give testimony, and our role on appeal is simply to
ensure that the evidence reasonably supports the jury’s verdict. Montgomery v.
State, 369 S.W.3d 188, 192 (Tex. Crim. App. 2012); see King v. State, 29 S.W.3d
556, 562 (Tex. Crim. App. 2000) (noting appellate court may not re-evaluate
weight and credibility of evidence produced at trial or otherwise substitute its
judgment for that of trier of fact). The jury may reasonably infer facts from the
evidence presented, credit the witnesses it chooses, disbelieve any or all of the
evidence or testimony proffered, and weigh the evidence as it sees fit. See
Canfield v. State, 429 S.W.3d 54, 65 (Tex. App.—Houston [1st Dist.] 2014, pet.
ref’d). Inconsistencies in the evidence are resolved in favor of the verdict. See
Curry v. State, 30 S.W.3d 394, 406 (Tex. Crim. App. 2000).
B. Elements of Capital Murder
A person commits murder if he “intentionally or knowingly causes the death
of an individual.” TEX. PENAL CODE ANN. § 19.02(b)(1) (West 2011). A person
commits capital murder if he intentionally commits murder in the course of
committing or attempting to commit any of several offenses, including robbery,
8
kidnapping, or burglary. Id. § 19.03(a)(2). As alleged in the indictment, capital
murder in the present case required proof that the principal actor intentionally
caused Dr. Gonzalez’s death while in the course of committing or attempting to
commit burglary, robbery, or kidnapping.
In determining whether intent to kill was proven, the jury can use common
sense and may apply common knowledge and experience. See Rodriguez v. State,
90 S.W.3d 340, 355 (Tex. App.—El Paso 2001, pet. ref’d). The jury may infer
intent to kill from any evidence that it believes proves the existence of that intent.
Brown v. State, 122 S.W.3d 794, 800 (Tex. Crim. App. 2003). A person’s acts,
words, and conduct are generally reliable circumstantial evidence of one’s intent.
See Laster, 275 S.W.3d at 524. The jury may also infer intent to kill from the use
of a deadly weapon, unless it would be unreasonable to infer that death or seriously
bodily injury could result from the particular use of the weapon. See Brown, 122
S.W.3d at 800–01.
Capital murder also requires proof that the murder was committed in the
course of committing or attempting to commit burglary, robbery, or kidnapping.
A person commits burglary “if, without the effective consent of the owner, the
person: (1) enters a habitation . . . with intent to commit a felony, theft or assault;
or . . . (3) enters a . . . habitation and commits or attempts to commit a felony, theft,
or an assault.” See TEX. PENAL CODE. ANN. § 30.02(a)(1), (3) (West 2011). Under
9
section 29.02, a person commits robbery “if, in the course of committing theft . . .
and with intent to obtain or maintain control of the property, he . . . intentionally or
knowingly threatens or places another in fear of imminent bodily injury or death.”
Id. § 29.02((a)(2) (West 2012). Under section 20.02, a person commits kidnapping
“if he intentionally or knowingly abducts another person.” 3 Id. § 20.02(a).
Here, the evidence establishes that Dr. Gonzalez was shot four times by
bullets fired during a barrage of gunfire heard on the 9-1-1 recording and as
evidenced by the casings and bullets recovered at the scene. A black Beretta was
identified as the murder weapon. See TEX. PENAL CODE ANN. § 1.07(a)(17)(A)
(West 2014) (characterizing firearm as deadly weapon per se). In light of the
weapon used and the numerous times Dr. Gonzalez was shot, the evidence is
sufficient to show an intent to cause Dr. Gonzalez’s death.
The State also presented evidence that several masked intruders trespassed
onto Dr. Gonzalez’s private property, entered his home, and murdered him, and
that his revolver was stolen. The unlawful entry into Dr. Gonzalez’s home,
followed by commission of a felony (i.e., Dr. Gonzalez’s murder and theft of his
3
“‘Abduct’ means to restrain a person with intent to prevent his liberation by: . . .
using or threatening to use deadly force.” TEX. PENAL CODE ANN. § 20.01(2)(B)
(West 2011).
10
gun),4 constitutes a burglary. Appellant also admitted to his intent to tie up and
hold Dr. Gonzalez’s wife and child for ransom and to threaten them with harm in
order to coerce Dr. Gonzalez to withdraw money from the bank. The unlawful
entry into Dr. Gonzalez’s home with the intent to commit a felony (i.e., kidnapping
Dr. Gonzalez’s wife and child) also constitutes a burglary. The evidence is legally
sufficient to show that the murder was committed in the course of committing or
attempting to commit burglary, robbery, or kidnapping.
C. Party Liability
Here, the jury was authorized to find appellant guilty of capital murder in
any one of the following three ways: (1) as a principal; (2) as a party under Texas
Penal Code section 7.02(a)(2); and (3) as a co-conspirator under section 7.02(b).
See TEX. PENAL CODE ANN. 7.02 (West 2011). When there are alternative means
of proving an offense, the sufficiency of the evidence is established if sufficient
evidence of any alternative exists. See Alvarado v. State, 912 S.W.2d 199, 225
(Tex. Crim. App. 1995). Moreover, we need not reach the question of whether the
evidence was sufficient to support a second theory if the evidence is sufficient to
support a finding of guilt under the first theory. See Gibbs v. State, 932 S.W.2d
256, 259 (Tex. App.—Texarkana 1996, no pet.). If the evidence is sufficient to
4
Theft of a firearm, theft from a person, and theft from a corpse constitute state jail
felonies. See TEX. PENAL CODE ANN. § 31.03(e)(4)(B), (C) (West 2011).
11
support a guilty finding under any of these theories, we must uphold the jury’s
guilty verdict. See Sorto v. State, 173 S.W.3d 469, 472 (Tex. Crim. App. 2005).
“A person is criminally responsible as a party to an offense if the offense is
committed by his own conduct, by the conduct of another for which he is
criminally responsible, or by both.” TEX. PENAL CODE ANN. § 7.01(a) (West
2011). Subsection (c) provides that “each party to an offense may be charged and
convicted without alleging that he acted as a principal or accomplice.” Id. §
7.01(c). “A person is criminally responsible for an offense committed by the
conduct of another if: . . . (2) acting with intent to promote or assist the
commission of the offense, he solicits, encourages, directs, aids, or attempts to aid
the other person to commit the offense . . . .” Id. § 7.02(a)(2).
In addition to being criminally responsible as a party under section 7.02(a), a
person may be criminally responsible for the conduct of another
[i]f, in the attempt to carry out a conspiracy to commit one felony,
another felony is committed by one of the conspirators, all
conspirators are guilty of the felony actually committed, though
having no intent to commit it, if the offense was committed in
furtherance of the unlawful purpose and was one that should have
been anticipated as a result of the carrying out of the conspiracy.
TEX. PENAL CODE ANN. § 7.02(b) (West 2011). Thus, section 7.02(b) obviates the
need for the State prove the defendant intended to kill the victim as long as the
evidence establishes that a felony was committed as a result of the conspiracy and
the murder should have been anticipated in carrying out the conspiracy to commit
12
the underlying felony. See Wood v. State, 4 S.W.3d 85, 89 (Tex. App.—Fort
Worth 1999, pet. ref’d).
In determining whether the accused participated as a party, the trial court
“may look to events occurring before, during and after the commission of the
offense, and may rely on actions of the defendant which show an understanding
and common design to do the prohibited act.” Cordova v. State, 698 S.W.2d 107,
111 (Tex. Crim. App. 1985). Post-offense conduct, although relevant, cannot stand
alone to demonstrate an agreement. Gross v. State, 380 S.W.3d 181, 188 (Tex.
Crim. App. 2012). A reviewing court may rely on circumstantial evidence to
prove party status. Id. at 186. Although “[e]ach fact need not point directly and
independently to the guilt of the appellant,” the cumulative effect of the
incriminating facts must be sufficient to support the conviction. Guevara v. State,
152 S.W.3d 45, 49 (Tex. Crim. App. 2004).
D. Analysis
In his first point of error, appellant contends that the evidence is insufficient
to support his conviction for capital murder. Specifically, he argues that the
evidence is insufficient to convict him as a party under section 7.02(b) because the
State failed to prove that he should have anticipated that a murder would occur as a
result of the carrying out of the conspiracy.
13
Appellant contends that the original plan in which he agreed to participate—
holding Dr. Gonzalez’s pregnant wife and child hostage to coerce Dr. Gonzalez
into withdrawing money from the bank—demonstrates that he did not and could
not have anticipated that murder would result. This is so, he argues, because he
and the other conspirators could never get the money if Dr. Gonzalez was killed.
Appellant asserts that “[o]ne cannot anticipate an outcome that is completely
contradictory to the intended[ed] purpose of the conspiracy.” Appellant, however,
misconstrues section 7.02(b). Section 7.02(b) does not require that the defendant
actually have anticipated the crime—rather, a defendant is liable if the offense
“was one that should have been anticipated.” See TEX. PENAL CODE ANN. § 7.02(b)
(emphasis added).
In support of his argument, appellant also relies on Tippitt v. State, 41
S.W.3d 316, 319–20 (Tex. App.—Fort Worth 2001, no pet.), overruled on other
grounds by Hooper v. State, 214 S.W.3d 9, 15 (Tex. Crim. App. 2007). In Tippitt,
the defendant and a man named Whitaker planned to rob a known drug dealer. See
id. at 319. During the course of the robbery, Whitaker pulled out a gun and killed
the dealer. See id. at 320. The defendant was convicted of capital murder under
the theory of parties’ liability. See id. at 319. On appeal, the defendant argued that
the evidence was legally insufficient to support his conviction. See id.
14
The court of appeals held that the evidence was legally insufficient to
support a finding of criminal responsibility under either section 7.02(a)(2) (as a
party) or 7.02(b) (as a co-conspirator). See id. at 324. With regard to section
7.02(b), the court found that although the evidence established that the murder was
committed in furtherance of the robbery, the evidence failed to support a finding
that murder was an offense that the defendant should have anticipated as a result of
carrying out the robbery. See id. In particular, the court found that although there
was some evidence that Whitaker, by his reputation, might have been prone to
violence, there was no evidence to establish the defendant’s knowledge of
Whitaker’s violent propensities. See id. at 325–26. The court also noted that there
was no evidence to show that the defendant knew Whitaker had a gun when he
entered the victim’s home. See id. The court concluded that without such
evidence, it could not hold that the evidence showed beyond a reasonable doubt
that the defendant should have anticipated intentional murder as a possible result of
their agreement to rob the victim. See id. at 326.
Relying on Tippitt, appellant contends that there is no basis to conclude that
he should have anticipated Dr. Gonzalez’s murder. He argues that, just as in
Tippitt, appellant merely had an agreement with his co-conspirators to kidnap and
rob the Gonzalez family, there was no intent to murder anyone, and appellant’s
presence when the murder occurred does not establish that he should have
15
anticipated its occurrence. Tippitt, however, is distinguishable from the facts in
this case. Here, appellant admitted to investigators that he knew that one of the co-
conspirators had a gun at the time they entered the Gonzalez property. Appellant
also described a plan that required the perpetrators to be able to convince Dr.
Gonzalez that they could carry out a threat to harm his wife and child. In short, the
perpetrators’ plan to wait in ambush for Dr. Gonzalez and his family, invade their
home, and threaten harm Dr. Gonzalez’s pregnant wife and child in an attempt to
extort money from him evidences a plan fraught with risks of violence. Further,
appellant’s contention that there was no intention to murder anyone is irrelevant
for purposes of section 7.02(b), which specifically confers responsibility on all
conspirators to a crime committed “though having no intent to commit it . . . .”
TEX. PENAL CODE ANN. § 7.02(b) (emphasis added).
Viewing the evidence in the light most favorable to the verdict, we conclude
that the evidence is legally sufficient to support a finding that appellant should
have anticipated murder as a possible consequence of the planned kidnapping and
robbery. See id. Because the evidence is legally sufficient to support a finding of
criminal responsibility as a co-conspirator under section 7.02(b), we need not reach
the question of whether the evidence was also sufficient to support a finding of
guilty under the State’s alternative theory under section 7.02(a)(2). See Gibbs, 932
S.W.2d at 259. Appellant’s first point of error is overruled.
16
Motion to Suppress
In his second point of error, appellant contends that the trial court erred in
overruling his motion to suppress his custodial statement because the warnings
given did not comply with Texas Code of Criminal Procedure article 38.22. In his
third point of error, he argues that the trial court should have suppressed his
recorded statements because he did not voluntarily waive his rights.
A. Standard of Review
We review a trial court’s ruling on a motion to suppress under a bifurcated
standard of review. Valtierra v. State, 310 S.W.3d 442, 447 (Tex. Crim. App.
2010). We afford almost total deference to a trial court’s determination of
historical facts. Id. The trial court is the sole trier of fact and judge of the
credibility of the witnesses and the weight to be given their testimony. Id.
Additionally, given this vital role, we accord great deference to the trial court’s
decision to admit or exclude such evidence, which will be overturned on appeal
only where an abuse of discretion is shown. See id. When a trial court makes
written findings of fact, as it did in the instant case, a reviewing court must
examine the record in the light most favorable to the ruling and uphold those fact
findings so long as they are supported by the record. See id.
B. Article 38.22 Warnings
1. Applicable Law
17
An oral statement of an accused made as a result of custodial interrogation is
admissible against the accused in a criminal proceeding if: (1) an electronic
recording, which includes a videotape, is made of the statement; (2) before the
statement, but during the recording, the accused is given the warnings required by
article 38. 22; and (3) the accused knowingly, intelligently, and voluntarily waives
the rights conveyed by the warning. TEX. CODE CRIM. PROC. ANN. art. 38.22, §
3(a) (West 2014). Under article 38.22(a)(2), a custodial statement is inadmissible
unless the accused is first warned that:
(1) he has the right to remain silent and not make any statement at all
and that any statement he makes may be used against him at his trial;
(2) any statement he makes may be used as evidence against him in
court;
(3) he has the right to have a lawyer present to advise him prior to and
during any questioning;
(4) if he is unable to employ a lawyer, he has the right to have a
lawyer appointed to advise him prior to and during any questioning;
and
(5) he has the right to terminate the interview at any time.
TEX. CODE CRIM. PROC. ANN. art. 38.22, § 3(a)(2).
2. Analysis
Prior to trial, the court held a hearing on appellant’s motion to suppress his
custodial statement. Appellant argued, among other grounds, that his custodial
18
statement should be suppressed because of the alleged inadequacy of the warnings
provided to him in Spanish by Ranger Diaz during his videotaped interview. A
translated transcript of the interview was admitted at the hearing. 5 Dr. Berk-
Seligson, a linguistic expert, testified on behalf of the defense at the hearing and
orally translated into English the warnings given to appellant by Ranger Diaz. At
the conclusion of the hearing, the trial court overruled appellant’s motion to
suppress his confession. In its order denying the motion, which included the
court’s findings of fact and conclusions of law, the trial court found that
Prior to giving the statement, but during the recording warnings were
provided to the Defendant in Spanish, a language spoken by the
defendant, and that the language of the warnings used was the fully
effective equivalent and conveyed the same meaning as all those
warnings required by the Constitution and laws of the United States of
America and the State of Texas, including the warnings contained in
art. 38.22, §2(a), Texas Code of Criminal procedure.
At trial, the State introduced the court interpreter’s Spanish-to-English
translation of the recorded warnings:
Ok. You have the right to remain silent, and to say absolutely
nothing. Any statement you make may be used against you, in the
case counseled against you, charged or brought against you, sorry.
Any statement made by you may be used against you in court. You
have the right to have an attorney present with you so that you are
counseled before being questioned, and while you are being
questioned If you cannot have an attorney, you have the right to have
an attorney assigned for him, for him to counsel you before you doubt
of the time that you are questioned.
5
A reporter’s note reflects that all of the exhibits admitted at the hearing on
appellant’s motion to suppress were sealed.
19
Appellant contends that the warnings given to him by Ranger Diaz in
Spanish are not the “fully functional equivalent” of the warnings set out in article
38.22, §3(a)(2). See TEX. CRIM. APP. PROC. ANN. Art. 38.22, §3(e)(2) (requiring
that statutory warnings be given exactly as listed or their “fully functional
equivalent”). This is so, he argues, because “Dr. Berk-Seligson provided the court
with a translation of the actual warnings given to [appellant], some of which, when
translated, were nonsensical.”
We find appellant’s contention unpersuasive for two reasons. First,
appellant’s argument that Ranger Diaz’s words were not the “fully functional
equivalent” of the warnings under article 38.22 because several of the warnings
were nonsensical as evidenced by Dr. Berk-Selingson’s translation requires us to
accept a translation other than the court interpreter’s translation admitted at the
suppression hearing and at trial.6 Second, questions regarding inaccuracies in a
translation are issues of fact to be settled by the trier of fact. See Garcia v. State,
887 S.W.2d 862, 875 (Tex. Crim. App. 1994), overruled on other grounds by
Hammock v. State, 46 S.W.3d 889, 893 (Tex. Crim. App. 2001); Calixto v. State,
66 S.W.3d 505, 510 (Tex. App.—Austin 2001, pet. ref’d). In Garcia, the Court of
6
In footnote 2 of his brief, appellant notes that the English translation of his
statement admitted at the suppression hearing as D-1 was also admitted before the
jury as State’s Exhibit 120. In so noting, we understand appellant to say that the
two exhibits are effectively the same. At trial, the State also noted that the
differences between Exhibit D-1 at the hearing and trial Exhibit 120 are “de
minimis.” \
20
Criminal Appeals held that a defendant must settle the question of a translation’s
accuracy at trial by impeaching the translation, either by cross-examination or
other means:
We, as an appellate court, can no more determine whether a
translation is accurate or which of two translations is more accurate,
than we can determine which of two witnesses is telling the truth, or
which of the two is more truthful; these are questions for the
factfinder. . . . Similarly, just as [a defendant] may not preserve error
by objecting at trial that a witness is lying, he may not preserve error
objecting that a translation is inaccurate; there is simply no reviewable
question to preserve. Just as he must impeach the lying witness at
trial to cure the lie, a defendant must impeach the inaccurate or
incomplete translation to cure it. As a question of fact, [a defendant]
must settle the question of a translation’s accuracy at trial by
impeaching the translation; cross-examination of the witness presents
the most convenient vehicle, but impeachment may be accomplished
by many other means.
887 S.W.2d at 875. Here, appellant does not attempt to argue that the warnings as
translated by the court interpreter and admitted at trial were inadequate. Moreover,
appellant offered no evidence at trial to support a finding that the warnings
appellant received were other than those reflected in the translation admitted at
trial.
Viewing the record in the light most favorable to the trial court’s ruling, we
conclude that the court did not err in overruling his motion to suppress his
custodial statement because the warnings given complied with Texas Code of
Criminal Procedure article 38.22. We overrule appellant’s second point of error.
21
C. Waiver of Rights
In his third point of error, appellant contends that the trial court erred in
overruling his motion to suppress his custodial statement because he did not waive
his rights.
1. Applicable Law
The State bears the burden to prove, by a preponderance of the evidence,
that a defendant knowingly, intelligently, and voluntarily waived his Miranda
rights. See Robinson v. State, 851 S.W.2d 216, 223 (Tex. Crim. App. 1991).
Article 38.22 does not require an express waiver and it is within a trial court’s
discretion to rely upon an implied waiver whenever the totality of the
circumstances, as reflected by the recording of the oral statement, warrants it. Leza
v. State, 351 S.W.3d 344, 353 (Tex. Crim. App. 2011); Joseph v. State, 309
S.W.3d 20, 25 (Tex. Crim. App. 2010) (noting that “[T]he question is not whether
[the defendant] ‘explicitly’ waived his Miranda rights, but whether he did so
knowingly, intelligently, and voluntarily.”).
This question is answered in two parts: “First, the relinquishment of the right
must have been voluntary in the sense that it was the product of a free and
deliberate choice rather than intimidation, coercion, or deception.” Id. at 25.
“Second, the waiver must have been made with full awareness of both the nature of
the right being abandoned and the consequences of the decision to abandon it.” Id.
22
“[I]f the ‘totality of the circumstances’ surrounding the interrogation reveals both
an uncoerced choice and the requisite level of comprehension . . . a court [may]
properly conclude that the Miranda rights have been waived.” Id. (citation
omitted).
2. Analysis
In its findings of fact and conclusions of law, the trial court stated:
The Court further finds from the totality of the circumstances
surrounding the making of this statement, that the Defendant, at the
time of making the statement, understood the rights and warnings of
which he had been advised, and that the Defendant knowingly,
intelligently, and voluntarily waived the rights set out in the warnings.
The totality of the circumstances includes, but is not limited to: the
Defendant's apparent intelligence; his ability to articulate his thoughts
(be they truthful or perjurious) in response to questions; his conduct
before, during, and after the videotaped interrogation; the information
within the knowledge of the Defendant about the nature of the crime
and the investigation thereof; the knowledge on the part of the
Defendant of his rights, including the right to continue or discontinue
the interview with law enforcement officials; and the method of
interrogation used by the officers, including duration, location and
comforts for the Defendant, and the technique of questioning. The
Court further finds that the Defendant was not threatened or coerced
into making the statement, nor promised anything in exchange for
making the statement, and that the Defendant’s statement was the
product of a free and deliberate choice by the Defendant to waive his
rights and speak with the officers questioning him.
Appellant contends that he did not waive his rights because he was not
explicitly asked if he understood the warnings given to him and whether he waived
his rights. He further argues that the fact that he was handcuffed and waiting
approximately four hours before the interview began at 4:00 a.m. also
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demonstrates that he did not waive his rights knowingly, intelligently, and
voluntarily.
At the suppression hearing, Ranger Diaz testified that appellant gave no
indication of misunderstanding what he was being told and made no attempt to
invoke any of the rights Diaz had explained. He further testified that he and
appellant had no difficulty understanding one another in Spanish, conversing freely
and answering questions responsively. See Joseph, 309 S.W.3d at 26–27 (noting
defendant’s willingness to talk with investigators can demonstrate knowing,
intelligent, and voluntary waiver of Miranda rights). The record reflects that, prior
to the interview, appellant was allowed soft drinks, restroom breaks, and food, and
that the interview lasted less than two hours. See Smith v. State, 779 S.W.2d 417,
429 (Tex. Crim. App. 1989) (concluding eight hours of questioning without food
did not render confession involuntary in light of defendant’s willingness to
continue); Fineron v. State, 201 S.W.3d 361, 366 (Tex. App.—El Paso 2006, no
pet.) (holding seven hours in custody did not render statement involuntary). After
the recorded interview and while he was in the hallway, appellant, without any
prompting, offered to take the police to the guns.
The trial court is the “sole and exclusive trier of fact and judge of the
credibility of the witnesses” and the evidence presented at a hearing on a motion to
suppress, particularly where the motion is based on the voluntariness of a
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confession. Delao, 235 S.W.3d at 238. Based on the totality of the circumstances,
we conclude that the preponderance of the evidence supports the trial court’s
conclusion that appellant knowingly, voluntarily, and intelligently waived his
rights before giving his custodial statement. As such, the trial court did not abuse
its discretion in finding appellant’s statement admissible under article 38.22. We
overrule appellant’s third point of error.
Conclusion
We affirm the trial court’s judgment.
Jim Sharp
Justice
Panel consists of Justices Keyes, Sharp, and Huddle.
Publish. TEX. R. APP. P. 47.2(b).
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