ACCEPTED
13-14-00123-CR
THIRTEENTH COURT OF APPEALS
CORPUS CHRISTI, TEXAS
10/14/2015 9:34:29 AM
Dorian E. Ramirez
CLERK
Cause No. 13-14-00123-CR
IN THE COURT OF APPEALS FILED IN
13th COURT OF APPEALS
FOR THE THIRTEENTH SUPREME JUDICIAL DISTRICT
CORPUS CHRISTI/EDINBURG, TEXAS
AT CORPUS CHRISTI-EDINBURG,10/14/2015
TEXAS 9:34:29 AM
DORIAN E. RAMIREZ
Clerk
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RAUL LARA, APPELLANT
v.
THE STATE OF TEXAS, APPELLEE
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APPEAL OF TRIAL COURT CAUSE NO. CR-4394-12-E
FROM THE 275TH DISTRICT COURT
HIDALGO COUNTY, TEXAS
The Honorable Juan Partida, Presiding
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SUPPLEMENTAL BRIEF OF THE STATE OF TEXAS/APPELLEE
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Ricardo Rodriguez, Jr.
Criminal District Attorney
Hidalgo County, Texas
Glenn W. Devino
State Bar No. 24012525
Lead Counsel for Appellee
Office of the Criminal District Attorney
100 N. Closner Blvd.
Edinburg TX 78539
Telephone 956-318-2300
Facsimile 956-380-0407
glenn.devino@da.co.hidalgo.state.tx
FOR THE STATE OF TEXAS, APPELLEE
NOTE AS TO PURPOSE OF THIS SUPPLEMENTARY BRIEF
The purpose of this Supplemental Brief is to address the additional arguments of
Appellant set forth in his Amended Brief that are not within his initial Brief. This
Brief is supplemental to, and not in lieu of, the initial Brief of the State of Texas,
Appellee.
2
IDENTIFICATION OF PARTIES AND COUNSEL
Appellee certifies that the following is a complete list of the parties, attorneys, and
all other interested persons regarding this matter:
1.) The Appellant is:
Raul Lara
2.) Appellant was represented in the trial court by:
Judith Pena-Morales, Esq. 120 S. 12th Ave., Edinburg TX 78539
E. Omar Maldonado, Esq. 1 100 N. Closner, Edinburg TX 78539
O. Rene Flores, Esq. 1308 S. 10th St., Edinburg TX 78539
3.) Appellant is represented on appeal by:
Rolando Garza, Esq. 310 W. University Dr., Edinburg TX 78539
4.) The Appellee is:
The State of Texas
by and through Ricardo Rodriguez, Jr., Hidalgo County Criminal District Attorney
5.) Appellee was represented in the trial court by:
Rene Guerra, Criminal District Attorney in and for Hidalgo County, Texas2
100 N. Closner, 3rd floor, Edinburg TX 78539
by his Assistant Criminal District Attorneys Linda Castillo, Roberto ‘Bobby’ Lopez,
Jr. and Ashley Reeve
6.) Appellee is represented on appeal by:
Ricardo Rodriguez, Jr., Criminal District Attorney in and for Hidalgo County, Texas
100 N. Closner, 3rd floor, Edinburg TX 78539
by his Assistant Criminal District Attorney Glenn W. Devino
1
E. Omar Maldonado, Esq., now sits as Judge Presiding, County Court at Law 8, Hidalgo
County, Texas; his motion to be permitted to withdraw as counsel for Appellant was granted by
written order before trial on the merits or any proceedings pertinent to this appeal. O. Rene
Flores, Esq. was granted leave to substitute for E. Omar Maldonado as co-counsel with Ms.
Morales, who represented Appellant throughout the course of proceedings in the trial court.
CR169, CR171, CR249.
2
The term of office of Rene Guerra as Criminal District Attorney in and for Hidalgo County,
Texas, ended after trial of this cause was concluded but during the pendency of this appeal.
3
NOTES AS TO THE FORM OF CITATION
A.) Citation to the Clerk’s Record will be to page number, e.g. CR 47
refers to Page 47 of the Clerk’s Record. Citation to a Supplemental Clerk’s Record
will be to volume and page number, e.g. 1SCR5 refers to Page 5 of Supplemental
Clerk’s Record, volume 1.
B.) Citation to testimony in the Reporter’s Record will be to volume and
page number, e.g. 3RR56 refer to page 56 of volume 3 of the Reporter’s Record.
Note: The numbering of the various volumes of the Reporter’s Record is in
some respects improper:
a.) A reference to 17RR herein is a reference to the transcript
memorializing proceedings conducted December 6, 2013; a reference
to 1Supp. RR herein is a reference to the transcript memorializing
proceedings conducted December 9, 2013.3
b.) A reference to 25RR herein is a reference to the transcript
memorializing proceedings conducted December 18, 2013, although
the copy of the transcript memorializing these proceedings, as provided
by the District Clerk of Hidalgo County, is labeled ‘volume 26 of 29’.
c.) A reference to 26RR herein is a reference to the transcript
memorializing proceedings conducted December 19, 2013.
d.) A reference to Supp. RR1, followed by an exhibit number, is a reference
to the Supplemental Reporters Record containing exhibits admitted in
suppression hearing.
3
Both of these referenced volumes are numbered ‘7 of 29’; staff of the Court has advised that the
latter volume will be and is redesignated so as to avoid confusion.
4
TABLE OF CONTENTS
Title Page…………………………………………………………………………...1
Note as to the Purpose of this Supplemental Brief…………………………………2
Identification of Parties and Counsel …...………………………………………….3
Note as to the Form of Citation……………………………………..……………...4
Table of Contents…………………………………………………………………...5
Index of Authorities………………………………………………………………...6
Statement of the Case………………………………………………………………7
Issue Presented……………………………………………………………………..8
Statement of Facts……………………………………………………………….....9
Summary of Arguments……………………………………………………….......10
Note as to Oral Argument………………………………………………………....11
Arguments and Authorities………………………………………………………..12
Conclusion………………………………………………………………………...16
Prayer……………………………………………………………………………...16
Certificate of Compliance…………………………………………………………17
Certificate of Service……………………………………………………………...17
5
INDEX OF AUTHORITIES
Cases
Bible v. State, 162 S.W.3d 234 (Tex. Crim. App. 2005)……………………...13fn7
Castellan v. State, 54 S.W.3d 469 (Tex. App.—Corpus Christi 2001, no pet.)…..15
Garcia v. State, 919 S.W.2d 370 (Tex. Crim. App. 1996, cert. denied)(op. on
rehearing)…………………………………………………………………13
Hernandez v. State, 421 S.W.3d 712 (Tex. App.—Amarillo 2014, pet. ref’d)..15-16
Missouri v. Siebert, 542 U.S. 600 (U.S. 2003)……………………………......12-13
Sosa v. State, 769 S.W.2d 909, 916 (Tex. Crim. App. 1989, cert. denied)……….14
Statutes
Tex. Code Crim. P. Art. 38.22…………………………………………………….12
Rules
Tex. R. App. P. 9.4…………………………………………………………….11fn5
Tex. R. App. P. 38.1…………………………………………………………...11fn5
Tex. R. App. P. 39.7…………………………………………………………...11fn5
6
STATEMENT OF THE CASE
Appellee, the State of Texas, does not set forth herein a Statement of the Case, but
rather rests on the procedural history set forth in the initial Brief of Appellee.
7
ISSUE PRESENTED
Issue:
Appellant is not entitled to reversal on his claim of error in the admission of
written custodial statements.
8
STATEMENT OF FACTS
Appellee, the State of Texas, does not set forth herein a Statement of Facts, but
rather rests on the recitation of facts established by evidence as set forth in the
original Brief of Appellee.
9
SUMMARY OF ARGUMENTS4
The trial court did not err in admitting the written custodial statements of
Appellant. Proper waivers are set forth on the face of each statement. The said
waivers are adequate in that the phrasing thereof substantially complied with the
specific provisions of the governing statute. Appellant was properly and timely
advised as to his rights before the execution of both statements. The circumstances
of the instant case do not present a ‘question now/warn later’ interrogation
scenario. The techniques employed by investigators in interviewing Appellant
were not coercive in nature so as to render his statements involuntary.
4
This Summary is supplemental to, and not in lieu of, the Summary of Arguments within the
initial Brief of Appellee.
10
NOTE AS TO ORAL ARGUMENT
Appellant does not request oral argument.5
The State of Texas respectfully submits that oral argument in the case at bar would
not serve to enlighten the Court further or illuminate the issues in that, because the
facts and legal arguments are adequately presented in the briefs and record, the
decisional process of the Court would not be significantly aided by oral argument.
The State of Texas reserves the right to present oral argument should the Court sua
sponte order oral argument.
5
Appellee recited in its initial Brief that Appellant requested oral argument. This recitation was
incorrect. Appellant did not, in either his initial Brief nor in his Amended Brief, reflect on the
cover thereof a request for oral argument. Tex. R. App. P. 9.4(g); Tex. R. App. P. 39.7. Neither
Appellant’s initial Brief nor his amended Brief contains a ‘statement regarding oral argument’ as
permitted by Tex. R. App. P. 38.1(e).
11
ARGUMENTS AND AUTHORITIES
Issue: Appellant is not entitled to reversal on his claim of error in the admission
of written custodial statements.6
Appellant contends that both of his custodial written statements should have been
suppressed for alleged lack of compliance with the governing statute, which
provides in pertinent part that the face of the statement must show that Miranda
warnings were issued before making the statement and that the accused, prior to
and during the making of the statement, knowingly, intelligently, and voluntarily
waived these rights. Tex. Code Crim. P. Art. 38.22 sec. 2.
One line of argument advanced by Appellant is grounded on the undisputed
testimony that the statements, which contains all the requisite cautions and
acknowledgements on their face, were not produced in written form until the
conclusion of the interviews rather than before questioning commenced. 17RR24-
25, 53-54. Appellant’s argument is flawed. Neither interview of Appellant was a
‘question first/warn later’ interrogation of the sort condemned by the Supreme
Court. In Missouri v. Siebert, 542 U.S. 600, 124 S. Ct. 2601, 159 L.Ed.2d 643
6
The arguments advanced herein are supplemental to, and not in lieu of, those advanced in the
initial Brief of Appellee.
12
(U.S. 2003), the interviewing officer made a “’[c]onscious decision’ to withhold
Miranda warnings [at the initial contact with and questioning of the suspect], thus
resorting to an interrogation technique he had been taught: question first, then give
the warnings, and then repeat the question ‘until I get the answer that she’s already
provided once.’” Id. at 605. Here, in contrast, Appellant was advised as to his
rights at the outset of both interviews. 17RR13, 40-41.7 The waivers on the face of
the written statements, which concededly were actually printed at the conclusion of
each interview rather than at commencement, merely memorialized in writing the
issuance of warnings that had properly and timely occurred.
Appellant’s reliance on Garcia v. State, 919 S.W.2d 370 (Tex. Crim. App. 1996,
cert. denied)(op. on rehearing) is likewise misplaced. The statement form at issue
in Garcia lacked an express waiver of any nature; rather, the form included only a
recitation that the facts therein were true and that the accused had made no request
for counsel or demand for cessation of the interview. Garcia, 919 S.W.2d at 384-
385. Even then, the Court of Criminal Appeals ultimately upheld the trial court’s
denial of the defendant’s suppression motion. Id. at 387. In the matter at bar, an
7
The second interviewing officer reissued the required warnings despite this officer’s awareness
that Appellant had already been advised of his rights before the substance of the first interview.
17RR38. Reissuance of the Miranda warnings was not in any event required. See, Bible v. State,
162 S.W.3d 234 (Tex. Crim. App. 2005).
13
explicit waiver does in fact appear on the face of both statements and above the
factual substance of the statements. 28RR State’s Exhibits 84, 86.
Substantial compliance with the provisions of Tex. Code Crim. P. Art. 38.22 sec.
2(b) in terms of the wording of a waiver is sufficient. See, Sosa v. State, 769
S.W.2d 909, 916 (Tex. Crim. App. 1989, cert. denied)(“[a] warning which is only
slightly different from the language of the statute but which conveys the exact
meaning of the statute is sufficient to comply with the statute.”). The waiver
provision on each statement at issue reads as follows:
I have read this statement of my rights (this statement of my rights
had been read to me) and I understand what my rights are. I am
willing to discuss subjects presented and answer questions. I do not
want a lawyer at this time. I understand and know what I am doing.
No promises or threats have been made to me and no pressure or
coercion of any kind has been used against me.
28RR State’s Exhibits 84, 86.
These waivers are substantively identical to that deemed adequate in Sosa, 769
S.W.2d 914. Moreover, this Court, in considering a waiver with somewhat
different phrasing, likewise held that waiver to be proper:
Although appellant's waiver did not list the words "knowingly,"
"intelligently," or "voluntarily," it is clear that these requirements
were met, adhering to the legislative intent of section 2(b). Thus, the
14
statement was valid, and the trial court was within its discretion to
deny appellant's motion to suppress.
Castellan v. State, 54 S.W.3d 469, 480 (Tex. App.—Corpus Christi
2001, no pet.).
The waivers subject of Appellant’s complaint were in substantial compliance with
the governing statute and thus both were adequate and proper.
Appellant contends that the testimony as to interview techniques employed,
involving advising Appellant that investigators had already gained information
from other sources implicating Appellant and that Appellant would thus likely ‘go
down’ for the offense, rendered his statements involuntary. The Amarillo Court of
Appeals has recently considered and rejected such claims:
Early in his questioning, Smith confronted appellant with autopsy
results showing Espinosa did not die from alcohol or drugs. Smith
pressed appellant to "get past" the "I'm going to cover for [Kenneth],
he's going to cover for [me]" posture, and made vague references to
other evidence recently discovered that "brought us back to you."
Hernandez v. State, 421 S.W.3d 712, 719 (Tex. App.—Amarillo
2014, pet. ref’d)
The Hernandez court explained its reasoning for rejecting Appellant’s claims:
The law permits police some use of psychological tactics to obtain
the statement of a suspect. Henderson v. Hendricks, 02-4338 (MLC),
15
2005 U.S. Dist. Lexis 32897 at *31 (D.N.J. Dec. 13, 2005) (not
designated for publication); Miller v. Fenton, 796 F.2d 598, 605 (3d
Cir. 1986). Thus, for example, an interviewer may play on the
suspect's sympathies or explain that honesty may be the best policy
for a suspect hoping for leniency. Miller, 796 F.2d at 605; Rachlin v.
United States, 723 F.2d 1373, 1378 (8th Cir. 1983) (although agents
told suspect it was in his best interest to cooperate, resulting
confession was voluntary); United States v. Vera, 701 F.2d 1349,
1363-64 (11th Cir. 1983)(same). "These ploys may play a part in the
suspect's decision to confess, but so long as that decision is a product
of the suspect's own balancing of competing considerations, the
confession is voluntary." Miller, 796 F.2d at 605.
Id. at 717-718
None of the approaches employed by either investigator regarding the statements at
issue were coercive in nature so as to render the confessions involuntary.
CONCLUSION
Appellee respectfully submits, for the reasons set forth herein and as further set
forth in its initial Brief, the Judgment of the trial court should in all respects be
affirmed.
PRAYER
Wherefore, premises considered, the State of Texas prays the Court affirm the
Judgment of the trial court.
16
Respectfully submitted,
______/s/ Glenn W. Devino_____________
Glenn W. Devino
Assistant Criminal District Attorney
Hidalgo County, Texas
100 N. Closner, 4th floor
Edinburg TX 78539
Telephone 956-318-2300
Facsimile 956-380-0407
State bar no. 24012525
Certificate of Compliance
I hereby certify that this Brief, including footnotes but excluding those parts listed
in Rule 9.4(i)(1), Tex. R. App. P., contains 2,500 words
______/s/ Glenn W. Devino_____________
Glenn W. Devino
Assistant Criminal District Attorney
Hidalgo County, Texas
100 N. Closner, 4th floor
Edinburg TX 78539
Telephone 956-318-2300
Facsimile 956-380-0407
State bar no. 24012525
Certificate of Service
I hereby certify that I have sent a true copy of the foregoing Brief of Appellee to
Appellant, Raul Lara by serving Appellant therewith through the electronic filing
manager to his attorney, Rolando Garza, on this the 14th day of October, 2015.
_____/s/______Glenn W. Devino
Glenn W. Devino
Assistant Criminal District Attorney
Hidalgo County, Texas
100 N. Closner, 4th floor
Edinburg TX 78539
Telephone 956-318-2300
Facsimile 956-380-0407
glenn.devino@da.co.hidalgo.tx.us
State bar no. 24012525
17