Martinez v. State
204 S.W.3d 914
Tex. App.
2006
Check Treatment

*1 MARTINEZ, Jr., Appellant, Raul Adam Texas, Appellee.

The STATE of

No. 13-03-388-CR. Texas, Appeals

Court of

Corpus Christi-Edinburg.

Nov. Law, Northcutt, At Attorney

Frances Houston, Appellant. for Atty., Kugler, Eric Assistant District Prosecutor, Delmore, III, William J. Chief Houston, Div., Appellee. for Appellate Before Justice VALDEZ Chief Justices YANEZ and CASTILLO. costs); questions depositions upon to sev- written ten are recoverable Hartnett Ass’n, providers to medical rec- WL eral medical obtain Tex. Nat’l v. Chase Bank of costs). (N.D.Tex.1999) court (holding ords were recoverable *3 that costs *2 knowing anything about Martinez denied OPINION it. Opinion by Chief Justice VALDEZ. his discussion with Shortly after brief Martinez, Jr., Appellant, Raul Adam was officers, Martinez was turned over to capital murder and sentenced convicted officer, poly- another who administered prison. to life in Martinez contends the polygrapher It three graph test. took by trial court made a constitutional error questions to four hours to create the test denying suppress his motion to a video- and the test. from the ease file administer

taped police. statement he made to The record does not contain the point appeal sole of error on is that Mar- or during report asked the test videotaped tinez’s should then returned to Offi- test. Martinez was have been admitted into evidence at trial cers Sosa and Hernandez and allowed during interroga- it was made an because father, bathroom, telephone his use the without Miranda warn- began tion that and point, and eat. At this Officers Sosa ings, though given even Martinez was with the Hernandez confronted Martinez appropriate warnings just prior making deception fact that had been de- areas of the statement. re- Appellee, They tected test. (1) sponds that: Martinez has not met the police then took from the station Martinez presenting developing burden of a rec- court, municipal to a where he was (2) reversal; ord to error requiring show statutory warnings his and constitutional neither a interrogation substantive nor an court, municipal aby magistrate. From incriminating statement occurred before police Martinez was taken to a different voluntarily Martinez waived his constitu- interrogation in an placed station and statement; rights by making tional Finally, and Hernan- room. Officers Sosa (3) by and Martinez was not harmed Martinez, him gave dez sat down with videotaped admission of his statement. him; Miranda warnings, questioned judgment. We affirm the trial court’s interrogation videotaped. Background B. Procedural I. BACKGROUND suppression hearing A to determine the Background A. Factual videotaped admissibility of Martinez’s Martinez was arrested Macar- Officer trial; shortly statement was held before io capital Sosa for the murder of Manuel only witness. Officer Officer Sosa was the arrest, Arriaga-Molina. During the Sosa the aforementioned arrest Sosa described Martinez, handcuffed told him he was un- process. Martinez’s de- interrogation murder, for him capital placed der arrest highlighted fense counsel the fact dur- car, police police in a and drove him to the statement, ing his recorded Martinez made station. No giv- warnings were told two references to statements he was en at the scene of the arrest or at the by another officer. The statements were police Upon arriving police station. at the and Hernandez made when Officers Sosa station, partner, Sergeant Sosa and his of the situation conveyed gravity Hernandez, if to reminding people asked Martinez he wanted Martinez that three were casual- speak with them about the incident. The shot and one killed. Martinez incident, ly responded, to the wall and briefly pointed three discussed the but for 30 to 40 minutes. what the dude told me over “[t]hat’s questioning, testified that Mar- officer During there.” Officer Sosa polygraph exam- referring repeated, tinez was to the arm and squeezed Seibert’s A not created of the iner. record was sleep.” “Donald was also to die Af- *3 statements, the questions, or results of she knew Donald was ter Seibert admitted examination. The trial court fire, given in meant to die she was a suppress denied Martinez’s motion to his cigarette 20-minute coffee and break. She videotaped statement. to the same room was then returned officer, warnings,

the same warnings. question- and those The waived II. DISCUSSION “Ok, ‘trice, ing during began, this session videotaped that his Martinez contends talking been for a little while about we’ve product type of a ” confession was happened.... what interrogation made uncon- “question-first” charged first-degree was Seibert with stitutional the U.S. Court.1 murder for her in Donald’s death. At role argues Martinez the unwarned and trial, suppression hearing a before she portions warned of the interviews were part tactically sought pre-warning of a continuous to exclude both her done as him process getting post-warning aimed at to make ad- statements. The trial and legal missions before he was aware of his only pre-warning court excluded her state- rights. apply He us to the Fifth asks of second- ments and she was convicted analysis Amendment used Missouri degree appeal, murder. On U.S. Su- Seibert, 159 U.S. S.Ct. Court, in af- preme plurality opinion, (2004). L.Ed.2d See U.S. Const. firmed.

amend V. which opinion, Justice Souter’s Justices, joined by three other held that A. The Seibert Case interrogators threshold issue when “[t]he ... question first and warn later is wheth- case involved murder and Seibert it to find that in er would be reasonable questionable police conduct. Patrice Sei- warnings these circumstances the could son, Jonathan, 12-year-old had ce- bert’s ‘effectively’ requires.” function as Miranda sleep, palsy, rebral and when he died Seibert, 124 S.Ct. 2601. neglect charges feared because of she Any warning “inserted body. bedsores on his She allowed her continuing midst of coordinated [a] mo- other son and a friend to “torch” her interrogation” problematic; and unless and Don- body home while Jonathan’s bile person suspect’s “a reasonable shoes ald, staying ill mentally teenager with question- could have seen the station house Seibert, in- were inside. Donald was left ing experience, [and as a new and distinct any appearance side the home to avoid warnings the Miranda could have thus] unattended. Jonathan had been Seibert, genuine choice presenting made sense as police local arrested When the admis- intentionally up whether to follow on the earlier they questioned her without Seibert, (Mo.2002), granted cert. 538 U.S. 124 S.Ct. 1. Missouri v. (2004), L.Ed.2d 1059 handed- 159 L.Ed.2d 643 supplemental brief was filed after days after Martinez filed his brief. No down a few opinion. upon Supreme Court handed-down its Martinez’s brief relies State v. sion,” objective from post- inquiry plurality would find the which “envisions perspective suspect, applies warning statements inadmissible. Id. at in the intentional and uninten- forth “rele- case both 614-16. The set five ... two-stage interrogations, tional cuts vant facts that bear on whether Miranda 621-22, 124 broadly.” Id. at too could ef- delivered midstream view, Instead, Kennedy’s in Justice fective:” timing interrogator’s questions treated the sec second, sonnel, and content of the two [1] ond round as continuous interrogation, [4] completeness the setting of the first and the [5] answers the continuity [2] degree statements, in the first round and detail of the with to overlapping police per which the first. [3] the way rogation unless liberately then “postwarning statements that are related case[s]” statements should continue to be 124 S.Ct. 2601. the to undermine the Miranda “[t]he principles where the technique ...” in a calculated police uses admissibility used “the the of Elstad.”2 Id. at interrogating In two-step strategy, those two-step postwarning “infrequent officer de- *4 governed warning, inter- 622, 615, factors, Id. at 124 S.Ct. 2601. These prewarning to the statements substance all relationship of which concern the be- must excluded unless curative measures interrogations, tween the first and second postwarning are taken before the state- in determining two-step are intended to aid courts ment is made.” Id. If the method initial, interrogation deliberately, interrogating whether an unwarned was used the ... operates to “thwart of officer must take “curative measures purpose Miranda’s designed per- to ensure that a reasonable reducing the risk that a coerced confession in suspect’s son the situation would under- would be admitted.” Id. at 124 S.Ct. import stand the and effect of the Mi- 2601. warning,” randa such as “a substantial Kennedy Justice in judg- concurred the in time and between break circumstances ment, grounds. but on “narrower” Id. at the Mi- prewarning the statement and J., 124 2601 S.Ct. concur- warning or “an warning,” randa additional ring judgment only). in plurality, Like the explains likely inadmissibility that the Kennedy Justice wrote that interro- “[t]he prewarning the custodial statement.” Id. gation technique used this case is de- signed to circumvent Miranda v. Ari- Justice authored the four- O’Connor zona,” dissent, through and “statements that “the obtained member which concluded technique the use of this are to El- plurality gives inadmissible.” insufficient deference ” stad, Id. at that S.Ct. For Justice and stated the Court should however, test, Kennedy, plurality’s “analyze[d] two-step interroga- have the Elstad, 298, 301, 314-16, Oregon interrogation 470 U.S. the scene. At the outset of the station, police suspect 105 S.Ct. 84 L.Ed.2d 222 at the Elstad, police young suspect’s went to and made full confession. custody charge house to take him into on a The Court held the second statement admissi- burglary. spoke voluntary rejected "cat out of Id. One officer with the ble and short, kitchen, briefly bag” theory any in the while that earlier admis- mother another suspect living arguably neglect waited with the in the room. sion obtained in innocent living young of the la- The officer in the room told the Miranda determined character 311-14, ter, burgla- he he was warned confession. Id. at man “felt” involved in the ry. young acknowledged being S.Ct. 1285. man aptly procedure points tion under the voluntariness The dissent out that Fifth standards central to the Amendment holding usually of a decision is 628-29, and reiterated Elstad.” Id. at opinion found that concurs (O’Connor, J., dissenting). S.Ct. on the judgment grounds. narrowest States, 188, 193,

Marks v. United (1977) (hold- 51 L.Ed.2d 260 Holding B. The Under Seibert ing ordinarily, fragmented that where “a Miranda, police officers are Under single a case and no ratio- Court decides required to inform about individuals explaining enjoys the result the as- nale undergo interrogation custodial Justices, holding of the sent of five intends to use their statements to state may position be viewed as that tak- Court them, they right convict have the en who concurred in those Members silent, they right remain and that have the judgments grounds.” on the narrowest present during question to have counsel (internal omitted)); quotation marks see Miranda, ing. also Thornton v. may effectively 1602. An individual (Tex.Crim.App.2004). 234 n. 10 rights “provided waive these the waiver is *5 voluntarily, knowingly, intelli made However, recognize the dissent fails to 444, 475, gently” Id. at 86 S.Ct. 1602. practical the limitations of Marks. The the to made voluntari order for waiver be hold- produces Marks rule determinate it a full ly, “must have been made with logical ing only opinion when one is right being awareness of the nature of the other, opinions. subset of broader United consequences of the abandoned and the 216, Eckford, v. 910 F.2d 219 n. 8 States v. Bur decision to abandon it.” Moran (5th Cir.1990) (“The Marks ‘narrowest bine, 1135, 412, 421, 475 106 89 U.S. S.Ct. grounds’ interpretation plurality deci- (1986). 410 L.Ed.2d common denom- comprehends sions least justices of the upon inator which all of the reading of is that a confes- Our Seibert Palmer, majority King can v. 950 agree.”); voluntarily is made if it is made after sion (en banc). (D.C.Cir.1991) 771, F.2d 781 warnings. functional proper and plurality concurring opin- Seibert, 612, When 124 See 542 U.S. at S.Ct. 2601 approaches, and there is opinion). with the ions take distinct (plurality Seibert deals admissibility of statements made after the opinion representing no narrowest is, police give warnings, “midstream” common denominator of the Court’s rea- interrogation police begin when a custodial problematic. soning, Marks becomes advising suspect without his Mi- Carrizales-Toledo, 454 United States rights, incriminating randa obtain state- (10th Cir.2006). 1142, Marks F.3d 1151 ments, after questioning and then continue opinions not when the various apply does warnings in order to re-elicit administering are mutu- supporting the Court’s decision incriminating plu- statements. Id. The Bound, ally exclusive. See Homeward interroga- rality opinion holds “when Ctr., 1352, Mem’l 963 F.2d Inc. v. Hissom later,” the question tors first and warn (10th Cir.1992) (citing King, 950 F.2d 1359 is “whether it would be threshold issue 782). at circum- to find that in these reasonable holding in find the Seibert We warnings could function ‘effec- stances plurality opinion for two reasons. Id. at 611— tively1 requires.” as Miranda First, tethering rule 12,124 there is no internal S.Ct. judgment. and concurrence in cation of Elstad unless a deliberate two- Kimura, Legitimacy used; Ken A step strategy See Model if the deliberate for Decisions, Interpretation Plurality used, two-step strategy is curative meas- (1992).3 1593, 77 Cornell L.Rev. 1599-1600 employed post- ures must be before plurality’s The rationale focuses on the warning statement is made in order for comprehension rights defendant’s of his Seibert, that statement to be admissible. interrogation process. at 542 U.S. ( S.Ct. 2601 J., concurring judgment only). “[W]hen Miranda are inserted Furthermore, only Seibert’s con- continuing the midst of coordinated and (or only argu- currence the decision of one interrogation, they likely are to mislead two) Justice(s), ably expressly but it was ‘depriv[e] knowledge a defendant of rejected by seven other Justices of the ability essential to his to understand the plurality argued Court.4 The rights nature of consequences and the “[bjecause that, intent of the officer will ”) abandoning them.’ (quoting Moran v. rarely candidly be as admitted as it was Burbine, 412, 424, 475 U.S. 106 S.Ct. (even likely here it is to determine the (1986)). plurality’s 89 L.Ed.2d interrogation), conduct the focus is reasoning fits within the framework sur apart on facts from the intent that show rounding Mmnda. See Duckworth v. Ea Id, question first tactic at work.” gan, 492 U.S. 109 S.Ct. 6,124 617 n. S.Ct. 2601. Justice O’Connor’s (1989); L.Ed.2d 166 v. Prysock, California stinging. rebuff is even more Justice 355, 359, Kennedy’s O’Connor claimed that Justice *6 contrast, By L.Ed.2d 696 Justice ambiguity analyzing rationale creates Kennedy’s concurrence focuses on the because, officers, two-stage interrogation cases “in interrogating state-of-mind the drawing addressing a distinctions addition to the standard Mi- between accidental and intentional actions. It urges appli- questions, randa and voluntariness courts Ascertaining appropriate legal particular re- rule occasions when the same out- quires analysis plurality opinion a close of the come is achieved. When the alternative Kennedy's concurring opinion. and Justice For, results, outcome no basis exists for believ- ing supporting that the Justices the broader [a]lthough legal may the narrower rule accept principles underly- rule will still aspects legal share certain rule, of the broader ing one-way the narrower rule. This flow necessarily it does not follow that the legitimacy imputing majority disallows supporting accept Justices the broader rule agreement on the rule. narrower Indeed, validity of the rule. narrower Kimura, Legitimacy Ken A Model the In- for split the fact that the decision creates a Decisions, terpretation Plurality 77 Cornell suggests concurrence that do some Justices L.Rev., 1593, accept validity not rule. narrower legal To construe the narrower rule as the Breyer joined 4. Justice in Justice Souter’s majority misguided. rule is It is true that plurality entirely; he also wrote his own con- supporting the coalition of Justices partially joins Kenney’s currence that Justice necessarily broader rule would reach the concurrence, slightly but articulates a differ- same outcome under the narrower rule. that, "[cjourts exclude the ent rule in should suggest This seems to that this coalition questioning 'fruits’ of the initial unwarned implicitly accepts How- narrower rule. good unless the failure to warn was in faith.” ever, decisions, sup- in future the coalition Seibert, (Brey- 542 U.S. at 124 S.Ct. 2601 porting "implicitly” the broader rule will er, J., concurring). agree only with the narrower rule on those reject of diffi- have led the Court to an

will forced to conduct the kind cult, that normal- inquiry proce- state-of-mind we intent-based test several criminal Seibert, Id. at ly pains take to avoid.” dures. 542 U.S. at 124 S.Ct. (O’Connor, J., dissenting). Quarles, (citing S.Ct. 2601 New York v. 81 L.Ed.2d underlying rationales of Justice (1984)). Seibert, did Unlike Officer Sosa Kennedy’s concurrence and the up two-stage not own to a deliberate inter- opinion divergent they are so render The silent record in the instant rogation. n Marks narrowest-grounds-interpretation “any does not reveal actual coercion case Generally, rule narrow- inapplicable. or other circumstances calculated to un- only prece- ground persuasive est merits ability to exercise his dermine” Martinez’s value, Kimura, dential 77 Cornell L.Rev. free will. mandatory value. precedential not Kennedy’s Because Justice concurrence is The dissent cites Jones clearly minority view and does com- as au- (Tex.Crim.App.2003), port jurisprudence surrounding with the thority two-stage interroga- condemning Miranda, find plurality opinion we year published tion. Jones was before persuasive governs.5 more and therefore decided, equal- dealt facts Seibert with

ly disturbing as and is distin- Jones, In guishable from Martinez’s case. Response C. to the Dissent orally his involvement appellant admitted applying Kennedy’s holding, Justice 771-72. As appel- two murders. Id. at summarily finds deliberate the dissent confessed, lant an officer wrote down “ver- two-stage intent in either a failure to make appellant said on a statement batim” what or the pre-Miranda a record of statements finished, appellant form. Id. When very engaging “two-stage” act of inter- officer sat down next to him and went over rogation. perform The dissent fails to top legal rights appeared analysis of the officer’s Elstad whether form. Id. Then the officer and the written “a sim- omission Miranda ap- together, read the statement *7 warning, un- ple failure to administer mistakes, initialed revi- pellant corrected accompanied by any actual coercion or oth- sions, at the signed and the statement er circumstances calculated to undermine bottom. Id. suspect’s ability to exercise his free on Jones is mis- The dissent’s reliance Elstad, 318, 5, at n. will.” egre- The facts in Jones wére so placed. inability The dissent’s to suc- S.Ct. 1285. Appeals of Criminal gious the Court cessfully inquiry conduct an Elstad ex- Miranda. It refused opinion rested its applying of poses practical problems only other doctrinal apply to Elstad —the by Kenney’s con- the rule dictated Justice “[t]o available at the time —because noted in Justice tool currence Seibert. As dissent, [appel- and declare the evidentiary apply difficulties Elstad here O’Connor’s Hernandez, Ap- v. No. 5. We that the U.S. Court of United States are mindful *2, 2602078, U.S.App. LEX- recently WL peals Circuit has issued for the Fifth *7, 12, 2006) (5th Sept. unpublished opinions finding n. 1 Cir. Seibert’s IS two curiam) Perhaps (unpublished opinion). Kennedy’s (per holding in concurrence. Justice See, find an internal rule e.g., Courtney, No. the Fifth Circuit can United States v. 05- (5th coursing through plurality and Justice 2006 U.S. LEXIS at *11 20, 2006) Kennedy’s that we cannot. Aug. (unpublished opinion) concurrence Cir. warnings by magistrate a lant’s] statement admissible virtue of rate Miranda officers, late admonishment of required finally interrogating and the spirit would undermine the interrogation in a appeared videotaped intent of Miranda.” Id. at 775. Seibert that was admitted into evidence at trial. provides is now the law of the land and outset, At the we note that there is no appropriate analysis given the facts of the pre-warning record of Martinez’s state- rights instant case. Martinez’s were not and Hernan- ments made to Officers Sosa trampled like those dez or the examiner. The first Jones. The instant case shows a mean- found two factors the Seibert ingful waiver of Miranda because determining relevant in whether Miranda questioning was not continuous. To the warnings delivered midstream are effec- contrary, questions the officers’ were completeness tive are the and detail of the court, punctuated by trip to a municipal questions and answers the first round given where Martinez was Miranda warn- and the interrogation overlapping content ings by magistrate. of the two statements. The dissent troubled Martinez’s references two D. Standard of Review polygrapher telling peo- him that three ple were shot the incident. Unlike subject to suppress Motions are repeating polyg- Martinez was to a bifurcated standard review. Car- State, (Tex. rapher’s general regarding statements mouche v. 10 S.W.3d crime, Crim.App.2000). In not his own unwarned statements. reviewing the trial Therefore, ruling court's on a motion to the first two Seibert factors are suppress, we afford deference applicable to the trial court’s deter Martinez’s case. mination of rulings the historical facts and case, fac- this the last three Seibert questions on mixed if law and fact point meaningful tors waiver of toward upon resolution those turns right Martinez’s to remain silent. The the credibility and demeanor of witnesses. timing, setting, general circumstances State, Guzman v. 955 S.W.2d 87-88 surrounding interrogation the second were (Tex.Crim.App.1997); Morfin enough apprise formal Martinez of the 664, 666 (Tex.App.-San Antonio gravity Shortly of the situation. after the pet.). Appellate no courts are not at administered, polygraph test was Martinez liberty findings to disturb the trial court’s warnings by a magis- long of fact as they supported by are police trate and then taken to a different However, *8 the record. we decide de novo interrogation. station for further Before misapply

whether the trial court erred in interrogation, post-warning Martinez Carmouche, ing the to law the facts. apprised rights by of his Officer Sosa. 327; Guzman, 955 S.W.2d at Having given warnings been Miranda 87-88; Morfin, 34 S.W.3d Sosa, magistrate and Officer Martinez videotaped made the statement. While Analysis E. and Hernandez interacted Officers Sosa Martinez before and after the Mi- with The instant presents case a Seibert not warnings, questions randa their did problem because Martinez made ^re-Mi rely prior on made to the police randa statements to officers and a statements examiner, polygraph given sepa- warnings. was then warned warnings, tainted his Miranda

III. CONCLUSION involuntary. it rendered statement and that admission of the video- We conclude subjected to an contends he was Appellant consti- did not constitute taped statement including interrogation process, “unwarned it made after tutional error because was was used to ob- polygraphing,” ... which functional Miranda warning. proper and him he was from before tain admissions of error is overruled. point Martinez’s sole rights. Appellant argues of his apprised trial court is affirmed. judgment of the portions of and unwarned that warned continu- “part of one his interviews were LINDA Dissenting opinion by Justice his state- process,” and that warned ous REYNA YÁÑEZ. involuntary and inad- therefore ment was missible. by Justice YÁÑEZ. Dissenting Opinion (1) argues that response, the State majority that the Unit- agree I with the interrogated gave and appellant was decision ed States Court’s to waiv- incriminating prior statement no Missouri v. Seibert applicable to this (2) the rights, and ing his constitutional however, the ma- disagree, I with ease.1 statement was appellant’s admission con- Seibert and its jority’s application of his other evidence light harmless not err in that the trial court did clusion by subjecting appel- I conclude that guilt. videotaped state- admitting appellant’s in- examination lant to a appellant’s state- ment. I would hold crime for which about the cluded pursuant to deliber- ment was obtained arrested, giving him without first he was interrogation technique used two-step ate offi- Miranda warnings, law enforcement of Miranda to undermine the effectiveness two-step inter- deliberately utilized a cers is there- warnings,2 appel- and that the statement that undermined rogation technique I cannot con- and subsequent fore inadmissible. Because lant’s inad- videotaped that the his statement beyond a reasonable doubt rendered clude missible. appellant’s did not contribute conviction, hold that the error I would also appellant’s I sustain harmful.3 would of Review Standard conviction, remand issue, his reverse Applicable Law trial. Accord- court for a new

to the trial a motion to ruling A trial court’s ingly, respectfully I dissent. abuse of generally reviewed for suppress is issue, contends the single In a hearing, the suppression In a discretion.4 admitting post- his erred trier of fact trial court is the sole judge trial credibility of the witnesses judge statement because videotaped to their testi- weight to be and the prior receiving interrogation,” “initial (Tex. 600, 616-17, v. 26 S.W.3d 4. See Ford 1. Missouri pet.) (citing Oles App.-Corpus no 159 L.Ed.2d Christi *9 103, State, (Tex.Crim.App. 106 v. 993 436, 479, Arizona, 86 v. 384 U.S. 2. Miranda 1999)). 1602, 16 L.Ed.2d 694 S.Ct. 44.2(a). Tex.R.App. P. 3. See

923 mony.5 In a trial motion if it reviewing ruling ruling suppression court’s court’s on reasonably is the record and supported on a to suppress, motion we afford almost any is correct on theory applicable law total deference to the trial court’s determi- to the case.10 nation of the historical facts that the rec- established in supports, especially safeguards ord the trial The when play person custody come into when a is findings evaluating court’s turn on a wit- subjected express questioning to either or When, credibility ness’s and demeanor.6 equivalent.11 its functional A confession case, as in the trial this court makes no may “involuntary” be deemed under three fact, explicit findings pre- of historical we (1) comply different theories: failure to necessary sume it made those findings (2) 38.22;12 article to comply with failure support ruling, provided they sup- its are Miranda; (3) with the dictates or fail- ported in the record.7 We afford almost comply process ure to with due or due total deference to trial ruling court’s course of law because the confession was “application questions,” law to fact coercion, freely given as a result of also known questions as “mixed of law and influences, improper or incompetency.13 fact,” if resolving questions those ultimate challenges When a defendant the volun- on evaluating credibility turns and de- confession, tariness of a the burden is on We review de novo meanor.8 questions government show a waiver of law and “mixed of law and fact” rights was the result of a defen- that do not turn on an evaluation of credi- dant’s free own and rational choice in the bility and demeanor.9 uphold totality We a trial of the circumstances.14 Ballard, 889, (Tex. 5. testimony any State v. 987 S.W.2d 891 no threats. The behavior Crim.App.1999). appears exemplary of Officer Sosa to be and it is admitted. Ross, 853, (Tex.Crim. 6. State v. 32 S.W.3d 856 Ross, 856; Guzman, 8. 32 S.W.3d at 955 State, 85, App.2000); v. 955 S.W.2d Guzman S.W.2d at 89. (Tex.Crim.App.1997). 89 Ross, 856; Guzman, 9. 32 S.W.3d at State, 323, 7. See Carmouche v. 10 S.W.3d S.W.2d at 89. (Tex.Crim.App.2000). 327-28 The trial court findings did not file written fact and conclu- State, 134, regarding sions of law Villarreal v. 935 S.W.2d voluntariness of 1996). appellant's required (Tex.Crim.App. statement as article 38.22, proce- section 6 of the code of criminal dure. See Tex.Code Crim. Proc. Ann. art. 38.22 State, 256, (Tex. 11. Miller v. 196 S.W.3d (Vernon State, 2005); § 6 Urias v. 155 S.W.3d 2006, h.) App.-Fort (citing pet. Worth no 141, However, (Tex.Crim.App.2004). Innis, 291, 300, Rhode 446 U.S. Island v. 38.22, complied trial court with article sec- (1980)). 64 L.Ed.2d 297 6, by dictating findings tion its and conclu- reporter, findings sions to the court and those (Vernon 12. See Tex.Code Crim. Proc. art. 38.22 part appellate Murphy are record. See 2005). State, (Tex.Crim.App. v. 112 S.W.3d 2003). findings The trial court's were: Miller, (citing 196 S.W.3d at 266 v.Wolfe (Tex.Crim.App. 917 S.W.2d going I am to admit the I statement. make 1996)). specific finding I have found Officer Sosa to be a credible witness. arrest war- Hernandez, good appeared rant 14. United No. arrest warrant. It States *4, freely, voluntarily U.S.App. that the defendant did 2006 WL LEX- (5th 2006) knowingly rights Sept. (per waive his to remain IS Cir. *12 curiam) give (citing Connelly, silent and that statement. There was Colorado v.

924 “one statements were warned and warned Appeals Court of Criminal

The Texas ad- court’s erroneous Appellant held that a trial cites process.” has continuous in viola- statement mission of defendant’s (Tex. State, 766, 775 119 S.W.3d Jones v. federal Fifth Amendment is tion of the Seibert, v. and Missouri Crim.App.2003) subject a harm anal- error constitutional 2601, 600, 616-17, 124 159 542 S.Ct. Proce- Appellate under Rule of ysis Texas (2004), argu- support of his L.Ed.2d 643 44.2(a).15 44.2(a), judg- Under rule dure ment.19 must punishment of conviction or ment reviewing court deter- reversed unless the majority applies the multi-factor The doubt that the beyond a reasonable mines four-justice by test crafted to the conviction did not contribute error that under the cir- and concludes Seibert admitting Error punishment.16 or cumstances, Mi- pre-statement appellant’s harmless be- is not appellant’s statement him of effectively apprised randa rea- if there is a a reasonable doubt yond his statement ad- and rendered rights his materially that the error likelihood sonable noted, I agree As Seibert missible.20 Thus, a jury’s deliberations.17 affected majori- disagree with applicable, but “calculate, near- as reviewing court should its conclu- ty’s application Seibert impact of the probable ly possible, Seibert, the holding in sion. Under jury light of the other error on the officers de- is whether the threshold issue evidence.”18 two-step procedure liberately engaged in a Analysis By protections.21 Miranda’s to weaken exami- to a subjecting appellant post-Miranda that his Appellant argues included about un- nation that is inadmissible because 870, Cir.1980) (when (5th 515, determin- 157, 163-65, F.2d 876 L.Ed.2d 473 S.Ct. 93 107 452, Bell, ing (1986); whether admission 367 F.3d non-Mirandized United States v. harmless, Miller, reviewing court must Cir.2004)); (5th at statements is 196 S.W.3d 461 whether, statement, State, 199, absent decide (citing v. 912 S.W.2d 266 Alvarado sup- 1995)). only sufficient to (Tex. remains not evidence Crim.App. 211 overwhelming as to so port the verdict but State, beyond 44.2(a); guilt of the accused establish the Jones v. TexR.App. 15. See Proc. doubt; 766, because error harmless (Tex.Crim.App.2003); reasonable 777 119 S.W.3d 47, overwhelming). (Tex. physical evidence was other McCarthy S.W.3d 55 v. 65 State, No. Crim.App.2001); Valerio v. 13-03- 2004, 21, 11049, 243-CR, Appellant's was filed June 19. brief Tex.App. at *10-*11 LEXIS 2004 (T ref'd) U.S. Su- approximately week before the pet. one ex.App.-Corpus Christi opinion v. preme its in Missouri (not Court issued publication). designated for Seibert, S.Ct. 159 542 U.S. opin- 777; Appellant Jones, cites McCarthy, L.Ed.2d 643 S.W.3d at 16. Court, State v. ion of the Missouri S.W.3d at 52. Seibert, (Mo.2002), which 93 S.W.3d 700 Jones, 777; Supreme Court. the U.S. McCarthy, 65 affirmed 17. 119 S.W.3d at 55. 20. See Jones, (quoting at 777 McCar- 119 S.W.3d 55); States thy, S.W.3d at see United (Kenne (9th Cir.1996) S.Ct. 2601 Polanco, id. at 21. See 93 F.3d 562-63 J., test concurring). multi-factor dy, The finding (analyzing error Miranda-Elstad four-justice plurality does not crafted evi- of “substantial other it harmless because holding holding represent the in Seibert. con- prove as that the same fact dence” Kennedy's con in Justice of Seibert is found improperly ad- defendant’s tained within the Hernandez, Estelle, WL statement); currence. See Harryman v. mitted

925 arrested, event, crime for which he gle taking place without in the same room as benefit Miranda the warnings, uninterrupted pro- the offi- an and continuous 25 deliberately two-step cers used a interro- cess.” court The held to declare the gation technique to protec- by undermine the statement admissible virtue of the late tions of Miranda. warnings spirit “would undermine the intent of Miranda.”26 Jones,

In Ranger questioned a Texas Seibert, appellant, the in custody while for one In the Supreme United States offense, about two “question-first” extraneous murders.22 Court addressed a interro- appellant orally by After the his in gation strategy, admitted which officers inten- murders, volvement the the tionally questioned person officer under arrest wrote down giving “verbatim” what the until warnings without the said, during confessed, an interview that ap suspect gave warnings lasted then the proximately hour-and-a-half, postponing repeated questioning get warnings until ap incriminating he asked the same response.27 Justice pellant sign Kennedy, the written statement.23 concurring plurality with a The court of criminal appeals justices, held that the four other post-Mi- held that a circumstances reflected “a serious misun pre-Miranda randa statement given after derstanding statements, law enforcement” of the should judged under Elstad, of Miranda.24 Oregon requirements v. The court standard laid out in 470 298, 314, found that 1285, unwarned oral statement 105 S.Ct. 84 L.Ed.2d (1985),28 and the written warned statement “were of Mi- 222 withholding unless the given during nearly randa undifferentiated sin- warnings strategy was a deliberate *2, 23258, U.S.App. LEXIS *7 majority present recognizes n. 1 case States, 188, (citing above, Marks v. authority United 430 U.S. the Fifth Circuit cited it 193, 990, (1977) 97 S.Ct. interpretation 51 L.Ed.2d 260 nonetheless finds the rule cited ("When fragmented “inapplicable.” majority Court decides a case Marks cites single authority and no explaining support rationale from the Tenth Circuit in the result Justices, enjoys position. its holding the assent See United States v. of five Carrizales- Toledo, (10th Cir.2006). may 454 F.3d position the Court be viewed as that taken those Members who concurred in Jones, judgments grounds.”)); 22. 119 S.W.3d at the narrowest 771. Courtney, United States v. 463 F.3d (5th Cir.2006); Williams, United States v. 23. Id. at 771-72. (9th Cir.2006); F.3d United States (3rd Cir.2005). Naranjo,

v. 426 F.3d 24. Id. at 774. Thus, holding in Seibert is that a trial suppress post-warning court must confessions 25. Id. at 775. two-step obtained a deliberate interro gation where the midstream Miranda warn 26. Id. ing light objective facts cir —in effectively apprise cumstances—-did not Seibert, 542 U.S. at 124 S.Ct. suspect rights. of his atU.S. 621- J., concurring). 124 S.Ct. 2601 Although the Seibert would consider Elstad, 298, 314, Oregon 28. See two-stage interrogations eligible all for a Sei 84 L.Ed.2d 222 inquiry, Kennedy’s opinion Elstad, bert Justice nar Court held that "absent exception rowed tactics,” the Seibert to those cases deliberately improper coercive or involving two-step proce deliberate use subsequent "[a] administration of Miranda protections. dure to suspect weaken Miranda's See to a who has a volun- id.; Williams, Although tary ordinarily 435 F.3d at 1157. but unwarned *12 appellant knowing

on to part anything the of law enforcement officials denied about transported the ap- situation. Officer Sosa protections circumvent the of Miranda.29 pellant headquarters police to and asked Kennedy Justice narrowed the Seibert test him if a willing polygraph he was to take First, to a parts.30 two court must decide provide examination. Officer Sosa did not officers made whether the a “deliberate” appellant. to Officer in flout Miranda round choice to the first provided the case file to poly- Sosa the so, If interrogation.31 “postwarning examiner, prepared who then graph the that are to sub- statements related questions. to Appellant “poly- was taken a prewarning stance of statements must graph in the same building (police room” excluded unless curative measures are tak- headquarters) polygraph for a examina- postwarning en before that poly- tion. Officer testified Sosa in- Such “curative made.”32 measures” graph procedure, including preparation of clude, a example, for sufficient break itself, and the examination interroga- time or circumstances between took three to four hours. After the exami- tions, warning to the suspect or a that nation, advised Officer was that the Sosa cannot be against first statement used polygraph “deception” showed results on him.33 appellant’s questions. to some answers argues that Appellant “[a]s Jones appellant Officer confronted Sosa with Seibert, portions the unwarned and warned polygraph Appellant results. was then interviews with here were [him] magistrate municipal taken before a process.” part done as of one continuous (at location) separate court around 5:00 p.m., of his and was advised only hearing ap- witness at the The thereafter, rights. Immediately appellant pellant’s suppress to Macario motion was area,” was taken to a “central hold at a Sosa, police the Houston officer who ar- location, he separate gave where his video- Officer appellant. rested Sosa testified taped statement. tip, that to a Crime pursuant Stoppers appellant suspect was identified as cross-examination, On defendant’s coun- robbery that resulted the murder of sel if he asked Officer Sosa recalled the Arriaga-Molina, one the victims. Manuel asked questions appellant surviving victims, Lo- Two of the Gustavo polygraph “supposedly examination that Balderas, pez and Alfredo Camilo Loredo deception.” reflected Officer re- Sosa in the appellant participant identified sponded not. Defense counsel that he did array. photo crime from a Officer Sosa questioned appellant’s Sosa about Officer an arrest warrant and arrested that he obtained reaction he was told “failed” when appellant about 10:30 a.m. officer told examination. Officer Sosa arrested, appellant why being he was stated he did not recall. Seibert, remove the 31. 542 U.S. at 124 S.Ct. 2601 should suffice to conditions

precluded J., concurring). admission of earlier state- (Kennedy, ment.” Id. 32. Id. 29. 542 U.S. at 124 S.Ct. 2601 J., concurring). Id. 2601; Id. at see also Court- ney, 463 F.3d at 338-39.

At the suppression hearing, Officer Sosa about ap- the circumstances of the crime testified as follows: parently provided by others.34 Officer referring Sosa testified that Q [by Now, defense on the counsel]: questions provided by statements or

tape yeah, we heard some references polygraph examiner. *13 or, they me, that’s what told yeah, that’s said, guy what that with reference to The record contains no documentation like the number of shots. would Who regarding polygraph examination. Of- “they” have pointing been when he’s to ficer Sosa stated that he did not know the wall there? Miranda appellant whether was warnings prior being questioned by to A polygraph [Officer Sosa]: The exam- polygraph examiner. He also stated that iner. identity he did not recall the poly- of the Q: polygraph So the gives examiner graph examiner. At the suppression hear- person they’re information as asking ing, counsel appellant’s argued that “the offense; about the is that cor- lack, importantly, any most reading of rect? rights or Miranda warnings during all the I present A: wasn’t you so I can’t tell questioning that throughout occurred exactly happened what during the exam- day by polygraph examiner” tainted ination. appellant’s post-warning statement. The at suppression hearing burden was on Q: you can’t say So for sure that the to prove preponderance State polygrapher did not provide him with appellant’s the evidence that details of the offense in order to ask him Here, voluntarily given.35 the record questions? provided shows that Officer Sosa the poly- say A: I can’t provided whether he de- file, graph examiner with the case which tails and warnings, what have examiner clearly enabled the question to no, you, ma’am. appellant specifics about the of the crime By for which he had been doing arrested. Q: you Because nothing have to do so, ensuring without that appellant was with that? provided warnings prior being to A: I was not present during that time. I questioned, conclude that the officers deliberately engaged We have reviewed an unconstitutional appellant’s video- taped two-step interrogation statement. tape appel- strategy designed shows responding lant of Miranda. questions posed by protections to to undermine the Offi- cers Sosa and During Accordingly, Hernandez. I conclude that the admissi- interrogation, bility there are appellant’s governed two instances statement is appellant which refers information Seibert.36 shots,” wall, point, regarding

34.At one pointed appellant information that to the died, people appel- referring three were shot and one to another officer. stated, they lant "that's what told me over Later, Miller, Alvarado, appellant there.” (citing made a similar refer- 196 S.W.3d at 266 211). only people got ence that "he told me three 912 S.W.2d trial, Similarly, shot.” Officer Sosa testi- statement, appellant's fied that in when he 542 U.S. at 124 S.Ct. 2601 stated, me, J., they concurring). "that’s what told three I conclude that un- statement, inadmissible.41 likely postwarning In his Seibert, appellant’s post- holding in der the crime dis- to circumstances refers inadmissible. warning statement is interview with during his unwarned cussed Thus, appellant’s examiner. to the was “related postwarning statement Analysis Harm statements” prewarning of [his] substance there is a rea- I examine next whether specific, cu- “excluded absent and must be the admission of likelihood that sonable regard whether steps.”37 rative With material- videotaped statement appellant’s and circum- in time “substantial break A jury’s deliberations.42 ly affected occurred, ap- to allow sufficient stances” calculate, as near- reviewing court “should *14 contexts “distinguish the two pellant impact of the probable ly possible, as interrogation has that the appreciate and jury light in of the other on the error turn,”381 appellant that note taken a new evidence.”43 locations to three different moved was Here, surviving victims identi- the two polygraph afternoon: throughout array one of photo from a as appellant fied location, at one he was taken examination robbery in the involved the two assailants magistrate at a before a was then taken statement, he In appellant’s murder. and location, was his statement different regarding of events versions gave several However, very a third location. taken at incident, story as to changing his events. these elapsed time between little in- were people or four whether three we found “[o]nce testified that Officer Sosa However, in driving. and who was volved deception was an area that there version, that he was stated each things or I our gathered we polygraph, car, out get did not of the in the back seat our gathered appellant], we [the collected incident, and did car magis- to a was taken things and he his state- anyone. shoot personally “[a]fter testified that He also trate.” in the back ment, he was appellant states read, pro- we warning magistrate’s also states his a “lookout.” He seat as at 61 Ries- hold area to the central ceeded people the other he knew statement that ner, the statement is where which lick,” com- “do a or going to the car were in loca- changes Although the taken.”40 robbery. mit a the contexts “distinguished” may tion have noted appeals criminal the court of As no substantial there was appellant, for McCarthy, appel- and no evidence in time break statement, especially state- A defendant’s pre-warned that his lant was told in the com- her implicating were examiner to the ments ("If there is McCarthy, S.W.3d at 55 42. S.Ct. 2601. 37. Id. at materially error that the likelihood reasonable S.Ct. 2601. 38. Id. at deliberations, the er- jury’s then affected beyond a reasonable harmless ror is not magistrate was taken before Appellant 39. doubt.”). p.m. 4:50 around started at videotaped statement Appellant's 40. Id. p.m. 5:16

41.Seibert, 124 S.Ct. U.S. at J., concurring). offense, car, mission of the I charged sitting is unlike was a lookout. was in the any around, other evidence that can be admitted looking knowing guys these against the defendant. Arizona v. going get See were a lick. You’re a look- Fulminante, 279, 296, you’re guilty out of capital murder. 1246, 113 L.Ed.2d 302 In Ful

minante, the defendant was convicted you’ve I tape got watched that it

through the use of a statement obtained I evidence and counted at least seven in violation of Fifth and Fourteenth par- times in that where defendant rights. Amendment See id. at tape says ticular he’s either a lookout or Court watching he’s out. noted that [A] defendant’s own confession is

probably the probative most and dam- if you says But believe what he in that aging evidence that can be admitted statement, he’s guilty capital murder. against him. The admissions of a de- Thus, in McCarthy, ap- the State used himself, fendant come from the actor *15 pellant’s statement as direct evidence of knowledgeable most and unim- guilt party co-conspirator.46 his as a or As peachable source of information about noted, McCarthy court past his Certainly, conduct. confes- profound sions have impact on the likely A confession is to leave indeli- jury, may justifi- so much so that we impact jury. “If jury ble a be- ably ability put doubt its to out them lieves that defendant has admitted the of mind even if told to do so.44 crime, it tempted will doubtless be alone, rest its decision on that evidence Here, just in McCarthy, as appellant’s careful without consideration of the oth- statement was sufficient to establish Apart, perhaps, er evidence the case. guilt party.45 as a In closing argument, crime, from videotape one would prosecutor emphasized appellant’s difficulty finding have evidence more statement: damaging to a criminal plea defendant’s way The fourth [Prosecutor]: four [of of innocence.” ways to appellant guilty find of capital deliberations, I that also note its party, murder] is as as a lookout to murder, jury requested appellant’s videotaped capital again, promote, as- statement, offense, among sist in the other I commission of the he items. find solicits, it encouraged, impossible say directed or there is no reason- aided. you ap- If believe this able likelihood that the defendant’s state- State’s use ment, you everything says pellant’s materially take he affected the true, says conclude, it here I tape: jury’s twice on this deliberations.48 I cannot Fulminante, (quoting (quoting Id. at 55-56 v. Fulmi 47. Id. at 56 U.S. at Arizona nante, 279, 296, J., 111 S.Ct. 1246 concur- (1991)). L.Ed.2d 302 ring)). jury charge jury 45. The instructed the on the 48. See id. parties conspiracy. law of and the law of McCarthy,

46.See 65 S.W.3d at 54. court, trial and remand doubt, judgment of the that the admis- beyond a reasonable trial, for a new unconstitutionally ob- appellant’s sion not contribute to the tained statement did I guilty.49 Accordingly,

jury’s verdict of issue, appellant’s reverse the

would sustain id.

49. See