Vasquez, Jose, PD-0078-15

Background

Jose Vasquez was arrested on a capital-murder warrant and, after transport to police, made an unrecorded inculpatory statement and later a videotaped confession to Detective Bolton; the unrecorded portion was not admitted at trial but the videotaped portion was.
Vasquez moved pretrial to suppress his statements on voluntariness and Article 38.22 recording grounds; at the suppression hearing he later asserted a “two‑step” or “question‑first, warn‑later” (Seibert) complaint only at the close of the hearing.
The court of appeals reversed the conviction, finding a Seibert violation and harmful error; the Court of Criminal Appeals vacated and remanded for the trial court to make factual findings about custody, whether Miranda warnings were given before the first interrogation, police deliberateness, and any curative measures.
On remand the trial court found Bolton credible: Padilla had Mirandized Vasquez prior to questioning, any delay in formal recording was rapport‑building (not deliberate circumvention), curative measures were taken, and warnings were given and waived before the recorded statement. The trial court disbelieved Vasquez’s contrary testimony.
The State (petition) argues the Seibert complaint was not preserved (Rule 33.1), the trial court’s factual findings should be afforded deference, the interrogation delay was rapport‑building not deliberate misconduct, and any admission of the videotaped confession was harmless because of strong independent evidence (witnesses, possession of marijuana, flight).

Issues

Issue	State's Argument	Vasquez's Argument	Held by court of appeals (post‑remand)
Preservation of Seibert/two‑step complaint	Not preserved — objection at hearing was general voluntariness/Art. 38.22 and counsel never clearly raised Seibert before ruling; Rule 33.1 requires specificity	Preserved — raised voluntariness and later identified two‑step interview at suppression hearing; trial court could and did address related facts	Court of appeals (initially) treated issue as preserved; dissent and State argue not preserved; preservation disputed on remand.
Whether pre‑recording interrogation was custodial or Mirandized before first statements	Trial court’s findings (on remand) that Padilla Mirandized Vasquez and Bolton’s testimony credible — no pre‑warning custodial violation	Vasquez testified no warnings and that he invoked rights; therefore first statements were unwarned and custodial	Trial court credited officers; court of appeals previously concluded State failed to prove Mirandizing before off‑camera statements; factual findings entitled to deference but record disputed.
Whether police deliberately used a two‑step (question‑first, warn‑later) technique (Seibert test)	No deliberate tactic — delay was rapport‑building; trial court found no deliberate strategy and no evidence of intent to circumvent Miranda	Deliberate technique used to obtain confession before warnings and then cure with recording; requires suppression under Seibert/Carter	Court of appeals (majority) found insufficient evidence State disproved deliberate tactic (Seibert violation); State argues Carter mandates deference to trial court credibility findings that show no deliberateness.
Harmlessness of admitting videotaped statement	Admission harmless — overwhelming independent evidence (post‑crime boasting, possession of stolen property, flight) so any error was not harmful beyond a reasonable doubt	Admission of recorded confession likely had substantial effect; uncurtailed two‑step tactic tainted the record and was not harmless	Court of appeals held admission was harmful and reversed; State contests and asserts harmless‑error review should favor affirmance given corroborating evidence.

Key Cases Cited

Miranda v. Arizona, 384 U.S. 436 (1966) (custodial interrogation requires warnings and valid waiver before admissibility of statements)
Missouri v. Seibert, 542 U.S. 600 (2004) (plurality/concurring guidance on "question‑first, warn‑later" technique and when post‑warning statements must be suppressed)
Carter v. State, 309 S.W.3d 31 (Tex. Crim. App. 2010) (adopts Justice Kennedy’s Seibert concurrence for deliberate two‑step interrogations; emphasizes deferential review of officer intent/findings)
Oregon v. Elstad, 470 U.S. 298 (1985) (where pre‑warning questioning is unwarned but not coercive, subsequent warned confession may be admissible if voluntary)
Martinez v. State, 272 S.W.3d 615 (Tex. Crim. App. 2008) (State bears burden to show confessions admissible; discusses curative measures and two‑step interrogation analysis)