IN THE
TENTH COURT OF APPEALS
No. 10-09-00157-CR
GENARO GARCIA,
Appellant
v.
THE STATE OF TEXAS,
Appellee
From the 272nd District Court
Brazos County, Texas
Trial Court No. 08-04560-CRF-272
MEMORANDUM OPINION
Appellant Genaro Garcia was charged by indictment with one count of
aggravated sexual assault of a child under fourteen years of age, a first-degree felony,
and two counts of indecency with a child by contact, a second-degree felony. After a
jury trial, Garcia was sentenced to seventy years’ confinement on Count 1 and twenty
years’ confinement for Counts 2 and 3, to be served concurrently. In two issues, Garcia
argues that: (1) the trial court erred in denying his motion to suppress to his confession;
and (2) his trial counsel was ineffective. We will affirm.
Garcia’s first issue argues that the trial court erred in refusing to suppress his
confession. Specifically, Garcia asserts that he, “a non[-]English speaking[,] insulin
dependent[,] diabetic[,] illiterate man who had been drinking prior to his confession,
did not believe he was free to leave [the police station] without confessing.” Because he
subjectively believed that he was not free to leave the police station, Garcia contends
that his confession should have been suppressed. The State counters that the trial court
did not err because Garcia was not in custody at the time he confessed.
A trial court’s denial of a motion to suppress is reviewed for an abuse of
discretion. Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim. App. 1997). We review the
evidence in the light most favorable to the trial court’s ruling, see Gutierrez v. State, 221
S.W.3d 680, 687 (Tex. Crim. App. 2007), and we review the trial court’s ruling under a
bifurcated standard of review, giving almost total deference to the trial court’s rulings
on (1) questions of historical fact, even if the trial court’s determination of those facts
was not based on the evaluation of credibility and demeanor, and (2) application-of-the-
law-to-fact questions that turn on the evaluation of credibility and demeanor. Amador v.
State, 221 S.W.3d 666, 673 (Tex. Crim. App. 2007). However, when application-of-law-
to-the-fact questions do not turn on the credibility and demeanor of the witnesses, we
review the trial court’s ruling on those questions de novo. Id. Furthermore, we review
the record to determine whether the trial court’s ruling is supported by the record and
correct under some theory of law applicable to the case. Armendariz v. State, 123 S.W.3d
401, 404 (Tex. Crim. App. 2003).
Oral confessions of guilt or oral admissions against interest made by a suspect
Garcia v. State Page 2
who is in custody are not admissible unless made in compliance with the provisions of
article 38.22 of the Code of Criminal Procedure. See TEX. CODE CRIM. PROC. ANN. art.
38.22 (Vernon 2005); Shiflet v. State, 732 S.W.2d 622, 623 (Tex. Crim. App. 1985); see also
Narramore v. State, No. 06-05-00226-CR, 2007 WL 817302, at *4 (Tex. App.—Texarkana
Mar. 20, 2007, pet. ref’d) (mem. op., not designated for publication). However, if a
person makes an oral confession of guilt or an oral admission against interest while not
in custody, a different rule applies. See Shiflet, 732 S.W.2d at 623; see also Narramore, 2007
WL 817302, at *4. Article 38.22, section 5 provides that: “Nothing in this article
precludes the admission of a statement made by the accused . . . that does not stem from
custodial interrogation . . . .” TEX. CODE CRIM. PROC. ANN. art. 38.22, § 5. Thus, an oral
confession of guilt or an oral admission against interest that does not stem from
custodial interrogation, and is given freely, voluntarily, and without compulsion or
persuasion, is admissible evidence against the accused. See Shiflet, 732 S.W.2d at 623; see
also Narramore, 2007 WL 817302, at *4. Thus, the crux of this issue is whether Garcia was
in custody when he confessed to the charged offenses.
Custodial interrogation is “questioning initiated by law enforcement officers
after a person has been taken into custody or otherwise deprived of his freedom of
action in any significant way.” Miranda v. Arizona, 384 U.S. 436, 444, 86 S.Ct. 1602, 1612,
16 L.Ed.2d 694 (1966). A person is in “custody” only if, under the circumstances, a
reasonable person would believe that his freedom of movement was restrained to the
degree that he was not at liberty to leave. See Dowthitt v. State, 931 S.W.2d 244, 254 (Tex.
Crim. App. 1996) (citing Stansbury v. California, 511 U.S. 318, 323-25, 114 S.Ct. 1526, 1529-
Garcia v. State Page 3
30, 128 L.Ed.2d 293 (1994)); Herrera v. State, 241 S.W.3d 520, 526 (Tex. Crim. App. 2007).
The determination of “custody” must be made on an ad hoc basis, after considering all
of the objective circumstances. Herrera, 241 S.W.3d at 526.1
At least four general situations may constitute “custody”: (1) the suspect is
physically deprived of his freedom of action in any significant way; (2) a law
enforcement officer tells the suspect that he cannot leave; (3) law enforcement officers
create a situation that would lead a reasonable person to believe that his freedom of
movement has been significantly restricted; and (4) there is probable cause to arrest and
law enforcement officers do not tell the suspect that he is free to leave. Gardner v. State,
306 S.W.3d 274, 294 (Tex. Crim. App. 2009). In all four circumstances, the initial
determination of “custody” depends on the objective circumstances of the interrogation,
not on the subjective views of the interrogating officer or the person being questioned.
Dowthitt, 931 S.W.2d at 255. The subjective intent of law enforcement officers to arrest is
irrelevant, unless that intent is somehow communicated or otherwise manifested to the
suspect. Stansbury, 511 U.S. at 323-25, 114 S.Ct. at 1529-30; Herrera, 241 S.W.3d at 525-26.
A person is not in “custody” if he “voluntarily accompanies police officers, who
are then only in the process of investigating a crime, to a certain location, and he knows
or should know that the police officers suspect he may have committed or may be
implicated in committing the crime.” Turner v. State, 252 S.W.3d 571, 580 (Tex. App.—
Houston [14th Dist.] 2008, pet. ref’d) (citing Dancy v. State, 728 S.W.2d 772, 778-79 (Tex.
1In Herrera, the court concluded that the construction of “custody” with respect to article 38.22 is
consistent with the meaning of “custody” for purposes of Miranda. Herrera, 241 S.W.3d at 526.
Garcia v. State Page 4
Crim. App. 1987)). “Once the circumstances show the person is acting upon the
invitation, urging[,] or request of police officers, and not the result of force, coercion[,]
or threat, the act is voluntary and the person is not then in custody.” Id. (citing
Livingston v. State, 739 S.W.2d 311, 327 (Tex. Crim. App. 1987). However, an initial
consensual encounter with police can be transformed into a custodial detention where
the police procedures become qualitatively and quantitatively so intrusive with respect
to a person’s freedom of movement. See Kaupp v. Texas, 538 U.S. 626, 630, 123 S.Ct. 1843,
1847, 155 L.Ed.2d 814 (2003).
A trial judge’s ultimate “custody” determination “presents a ‘mixed question of
law and fact.’” Herrera, 241 S.W.3d at 526 (citing Thompson v. Keohane, 516 U.S. 99, 112-
13, 116 S.Ct. 457, 465-66, 133 L.Ed.2d 383 (1995)). Therefore, we afford almost total
deference to a trial judge’s “custody” determination when the questions of historical
fact turn on credibility and demeanor; otherwise, we review the trial judge’s “custody”
determination de novo. Id. Furthermore, when a trial judge denies a motion to
suppress and does not enter findings of fact, as is the case here, the evidence is viewed
“in the light most favorable to the trial court’s ruling,” and we “assume that the trial
court made implicit findings of fact that support its ruling as long as those findings are
supported by the record.” Id.
In the instant case, Garcia first interacted with law enforcement on August 1,
2008, when his house was searched pursuant to a warrant. At that time, Garcia agreed
to come to the police station to make a statement regarding his involvement in this
matter. Kelley Caldwell, a Bryan police officer, testified that Garcia arrived at the police
Garcia v. State Page 5
station at 9:30 a.m. on August 8, 2008, to make his statement. Garcia was first
interviewed by Sabino Martinez Jr., who was then a sergeant with the Texas
Department of Public Safety and a polygraph expert. This initial interview was
regarded as a pre-polygraph examination interview. During this interview, Sergeant
Martinez spoke to Garcia in Spanish, and Sergeant Martinez began the interview by
reading Garcia his Miranda rights. Sergeant Martinez noted that before he interviews
anyone, he reads them their Miranda rights, even if the individual is not in custody or
under arrest. Sergeant Martinez testified that Garcia appeared to understand his rights
and that he agreed to continue the interview. Shortly into the interview, Garcia
discussed some of the facts involved in this case, and Sergeant Martinez asked Officer
Caldwell to join the interview. Once Officer Caldwell entered the room, she began
recording the interview, and Sergeant Martinez read Garcia his Miranda rights once
again. Garcia again waived his rights and agreed to make a statement.
After waiving his rights, Garcia admitted that he voluntarily came to the police
station to make a statement and that no one had forced, coerced, or made promises to
him in exchange for any statements made to police. Garcia then admitted being
involved in the charged offenses, but he blamed K.M., the seven-year-old child victim in
this case. Garcia told Sergeant Martinez and Officer Caldwell the following:
Basically that he had—that some of the information about the
sexual abuse was true, but that the child was the one that wanted him to
touch him [sic]. The child—I’m sorry, the child was the one that wanted
him to touch her, and pretty much was blaming the child throughout the
whole interview.
Garcia spoke to Sergeant Martinez and Officer Caldwell for approximately thirty
Garcia v. State Page 6
minutes until he ended the interview by saying “That is all I have to say.” Garcia then
left the police station on his own accord. Sergeant Martinez did not administer the
polygraph test because Garcia confessed to the crimes charged.
During the interview, both Sergeant Martinez and Officer Caldwell wore civilian
clothes, and both denied that Garcia was in custody or formally arrested at the time he
made his confession. Garcia was never handcuffed, deprived of water or restroom
breaks, or deprived of his right to counsel. Sergeant Martinez explained to Garcia that
he could terminate the interview at any time. On cross-examination, Sergeant Martinez
acknowledged that Garcia told him that he had surgery about a month before the
interview, and Garcia did tell him that he had high blood pressure and had consumed
“seven to eight beers” the night before the interview. Sergeant Martinez testified that
these factors could have affected the polygraph examination, but a preliminary
examination to determine what effect, if any, these factors would have had on the
polygraph examination was never conducted because Garcia confessed. With regard to
Garcia’s purported medical issues, Officer Caldwell recalled Garcia merely stating that
“he was diabetic and couldn’t get an erection.” Officer Caldwell testified that Garcia
did not appear to be ill on the day he gave his confession. Furthermore, Sergeant
Martinez denied that Garcia was promised anything in exchange for his confession.
Garcia also testified at the hearing on his motion to suppress. His wife took him
to the police station on August 8, 2008 to make a statement, and he said that Sergeant
Martinez did not read him any warnings before starting the interview. Garcia told
Sergeant Martinez that he was not feeling well. He testified that Sergeant Martinez read
Garcia v. State Page 7
Garcia his Miranda rights only after discussing the facts of the case and that Sergeant
Martinez raised his voice at him during the interview. Garcia said that he is diabetic;
that he had not eaten anything on the morning of the interview; and that he had
consumed beer the night before the interview. Regarding his confession, Garcia
testified that he made the statements only because Sergeant Martinez told him that he
could leave the police station if he confessed; he only told Sergeant Martinez and
Officer Caldwell what they wanted to hear so that he could leave.
At the hearing, Garcia recanted his confession and denied all of the allegations
against him. He also testified that he was nervous talking to police at first, but he later
admitted that he was not scared of Sergeant Martinez and Officer Caldwell. On cross-
examination, Garcia admitted that Sergeant Martinez told him that he could stop the
interview at any time and that he could leave. Garcia also admitted that neither
Sergeant Martinez nor Officer Caldwell promised him anything; that he was voluntarily
present at the police station; and that Sergeant Martinez had informed him of his
Miranda rights.
The evidence does not support a finding that Garcia was in custody at the time
he made his confession. Garcia voluntarily came to the police station to make a
statement, and he was never restrained, handcuffed, or formally arrested. Garcia was
not deprived of water, restroom breaks, or the right to counsel. Garcia was informed
that he was free to terminate the interview at any time, and Garcia did, in fact,
terminate the interview by stating, “That is all I have to say.” He then left the police
station on his own accord, further demonstrating that he was free to leave at any time.
Garcia v. State Page 8
Given this evidence, we conclude that, in viewing the evidence in the light most
favorable to the trial court’s ruling, Garcia was free to leave at any time during the
interview; thus, he was not in police custody at the time he confessed. See Herrera, 241
S.W.3d at 526; see also Turner, 252 S.W.3d at 580.
Nevertheless, Garcia argues that Sergeant Martinez promised him he could leave
only if he confessed and that he did not understand his rights because of his medical
issues and his illiteracy.2 But both Sergeant Martinez and Officer Caldwell testified that
Garcia appeared to understand his rights and that he did not appear to be ill when he
confessed. In denying Garcia’s motion to suppress, the trial court obviously accepted
their testimony and rejected Garcia’s testimony. The trial court is the sole judge of the
credibility of the witnesses and the weight to be accorded to their testimony. See St.
George v. State, 237 S.W.3d 720, 725 (Tex. Crim. App. 2007); Campos v. State, 977 S.W.2d
458, 465 (Tex. App.—Waco 1998, no pet.). The trial court may believe or disbelieve any
or all of the testimony, including that of the accused. See Green v. State, 934 S.W.2d 92,
98 (Tex. Crim. App. 1996); Campos, 977 S.W.2d at 465. We will not disturb the trial
court’s ruling absent a clear abuse of discretion. Campos, 977 S.W.2d at 465.
Considering all of the evidence regarding the circumstances surrounding the taking of
Garcia’s statement, including the fact that Garcia was not in police custody at the time
he confessed, we find that the trial court’s denial of Garcia’s motion to suppress was not
an abuse of discretion. Accordingly, we overrule Garcia’s first issue.
2The record indicates that Garcia was informed of his Miranda rights on at least two occasions
during the interview and that he signed waivers of those rights each time.
Garcia v. State Page 9
In his second issue, Garcia asserts that his trial counsel was ineffective. Garcia
contends that “there are several deficiencies when considered in their totality amount to
ineffective assistance of counsel.” In particular, Garcia alleges that trial counsel was
ineffective because: (1) he allowed a potential juror to exit the courtroom without
objecting and allowed voir dire to continue without any mention of whether the
potential juror had returned; (2) he failed to challenge for cause or exercise a
peremptory challenge against a juror whose college roommate had been the victim of
sexual assault; (3) he failed to make an opening statement; (4) he failed to object to
bolstering evidence the State allegedly presented to explain why a child might lie or
cover up sexual abuse; (5) he failed to object to the admission of an expert report that
allegedly contained hearsay; (6) he failed to secure the testimony of Jane Riley, the
pediatric nurse who conducted the sexual assault examination of K.M.; (7) he violated
the State’s motion in limine by referring to Garcia’s immigration status; and (8) he failed
to cross-examine K.M.
The United States Constitution, the Texas Constitution, and article 1.051 of the
Code of Criminal Procedure guarantee an accused the right to reasonably effective
assistance of counsel. See U.S. CONST. amend. VI; TEX. CONST. art. I, § 10; TEX. CODE
CRIM. PROC. ANN. art. 1.051 (Vernon Supp. 2010); see also Strickland v. Washington, 466
U.S. 668, 686, 104 S.Ct. 2052, 2063, 80 L.Ed.2d 674 (1984); Ex parte Gonzales, 945 S.W.2d
830, 835 (Tex. Crim. App. 1997). To prove ineffective assistance of counsel, Garcia must
show that: (1) trial counsel’s representation fell below an objective standard of
reasonableness, based on the prevailing professional norms; and (2) there is a
Garcia v. State Page 10
reasonable probability that, but for trial counsel’s deficient performance, the result of
the proceeding would have been different. See Strickland, 466 U.S. at 687-95, 104 S.Ct. at
2064-69; Dewberry v. State, 4 S.W.3d 735, 737 (Tex. Crim. App. 1999). Whether this test
has been met is to be judged on appeal by the totality of the representation, not by
isolated acts or omissions. Rodriguez v. State, 899 S.W.2d 658, 665 (Tex. Crim. App.
1995). Garcia has the burden of proving ineffective assistance of counsel by a
preponderance of the evidence. Thompson v. State, 9 S.W.3d 808, 813 (Tex. Crim. App.
1999).
Our review of counsel’s representation is highly deferential, and we will find
ineffective assistance only if Garcia overcomes the strong presumption that his
counsel’s conduct fell within the range of reasonable professional assistance. See
Strickland, 466 U.S. at 689, 104 S.Ct. at 2065. The right to “reasonably effective assistance
of counsel” does not guarantee errorless counsel or counsel whose competency is
judged by perfect hindsight. Saylor v. State, 660 S.W.2d 822, 824 (Tex. Crim. App. 1983).
Moreover, the acts and omissions that form the basis of Garcia’s claims of ineffective
assistance must be supported by the record. Thompson, 9 S.W.3d at 814. A silent record
that provides no explanation for counsel’s actions usually will not overcome the strong
presumption of reasonable assistance. Id. at 813-14. To warrant reversal without
affording counsel an opportunity to explain his actions, “the challenged conduct must
be ‘so outrageous that no competent attorney would have engaged in it.’” Roberts v.
State, 220 S.W.3d 521, 533 (Tex. Crim. App. 2007).
Here, Garcia did not raise the issue of ineffective assistance of counsel in his
Garcia v. State Page 11
motions for new trial. Thus, his trial counsel was not afforded an opportunity to
explain his trial strategy or address the numerous complaints Garcia makes on appeal.
In situations where trial counsel has not been afforded an opportunity to explain his
actions, an appellate court will usually reject the complaint in a summary fashion. See
Scheanette v. State, 144 S.W.3d 503, 510 (Tex. Crim. App. 2004); Hervey v. State, 131
S.W.3d 561, 564 (Tex. App.—Waco 2004, no pet.) (“[T]rial counsel should ordinarily be
afforded an opportunity to explain the actions taken or not taken, as the case may be,
before being condemned as unprofessional and incompetent.”). Because the record is
silent as to trial counsel’s trial strategy and because Garcia has not adequately explained
how trial counsel’s actions were so outrageous that no competent attorney would have
engaged in them, we cannot say that the record supports a finding that trial counsel
was ineffective. See Roberts, 220 S.W.3d at 533. We overrule Garcia’s second issue.
Having overruled Garcia’s two issues, we affirm the judgment of the trial court.
REX D. DAVIS
Justice
Before Chief Justice Gray,
Justice Davis, and
Justice Scoggins
Affirmed
Opinion delivered and filed August 3, 2011
[CRPM]
Garcia v. State Page 12
Genaro Garcia v. State
Combined Opinion