Martinez v. State

released Appellant was interrogation is of as a confession. tape improper of the day. that same There is dimension, condition the issue be- without constitutional contact with of other can no evidence reviewing court comes whether May on him before his arrest “beyond a reasonable doubt determine again him Merrill once advised Detective to the the error did not contribute Tex.R.App. appellant again of his Miranda punishment.” conviction or he understood those acknowledged that 44.2(a). PROC. interrogation previous rights. While The obtained statement from improperly mentioned, posed questions was information May general 15 contained and the specific, more interrogation were in- to the appellant’s relationship about confrontive, because of questioners more jured appellant’s child and denials of in the additional information discovered injured ingestion act that the child of days, only and it dur- intervening two was drugs interroga- of or After that alcohol. began ing interrogation tion, released perhaps discipline his concede hospital drove him to the the child where injury. had caused the toddler being treated. Police arrested together, state- appellant’s Considered child, days injury lant later for to the May on first-responders ment to the again Merrill Detective advised May on his answers rights, appellant again of his Miranda call to Merrill on telephone Detective acknowledged that he understood those at trial that May testimony and his rights. interrogation It in this on May 15 inter- replicated the content of the May appellant began 17 that to concede included an admission of rogation and child, that he al- might injured have conscious- shaking the child until lost him though inadvertently, by shaking air, lead me gasping ness and started enough twice and with force to cause the beyond to conclude reasonable snap repeatedly. child’s head to back On doubt, the erroneous admission vid- May 18, appellant called Detective Merrill May did tape interrogation eo jail from the him told that he had appellant’s conviction or contribute ingested marijuana than three” and “more punishment. therefore concur beers and that “someone had told” appellant’s refusal of Petition for Court’s that he also had “consumed some PCP.” Discretionary Review. trial, Appellant testified at his and his testimony large part reiterated his May

statements from the on improperly

15. There is no harm from

admitted if the evidence same evidence through admitted another source with- Jr., MARTINEZ, Appellant, Raul Adam See, objection. e.g., Massey v. out (Tex.Crim.App.1996). S.W.2d of Texas. STATE May

Nor can I conclude that because of the interrogation was tainted No. PD-1917-06. appellant’s rights May

violation Appeals of Texas. Court Criminal During May interrogation, the de- Dec. only general information tectives learned about care of the child and nothing

extracted that could be construed Northcutt, Houston, Ap- money. M. Simulta- Frances abdomen and demanded pellant. pointed pistol neously, the taller man at the other victims and demanded Eric Kugler, Atty., Asst. Hous- District money. Arriaga gave his Mr. wallet ton, Horn, Jeffrey Atty., L. State’s Van man, responded by shooting taller Mr. who Austin, for State.

Arriaga groin. Mr. Camilo also man, the taller gave his wallet who OPINION responded by shooting Camilo the stom- JOHNSON, opinion delivered the of pushed ach. The men Mr. Balderas to the Court, PRICE, WOMACK, in which wallet, him in ground, took his shot HOLCOMB, COCHRAN, JJ., joined. and neck, alert, Mr. and fled. Still Balderas Martinez, Jr., appeals Raul A. his con phone used his cell to call his brother-in- capital viction for murder.1 Because the law, po- and his brother-in-law called the penalty, state chose not to seek the death lice. The three victims were taken to the jury’s finding guilt of resulted in a hospital. Mr. Balderas treated for his prison. sentence of life in The Thirteenth injuries night. and released that Mr. Appeals of upheld Court his conviction.2 hospitalized longer peri- Camilo was for a (Tex. Martinez v. 204 S.W.3d 914 od of time multiple surger- and underwent 2006). App.-Corpus Christi This Court Arriaga ies. Mr. died a after few hours granted appellant’s petition for discretion the incident. ary appeals review: “Whether the court of misapplied the of standards de Toby Macario Sosa and Her- Detectives termining that a proper and functional Mi nandez of the Depart- Houston Police given randa appellant here investigated ment’s homicide division finding appellant’s custodial statement suspects case. There were no until the admissible.” We reverse. Stop- officers were informed of a Crime pers tip identifying appellant and James FACTS primary suspects. Appellant Ruiz as 2, 2003, In the early morning August short, description of the matched Loredo, Camilo, Alfredo Balderas Gustavo male, heavy, Hispanic Ruiz matched and Manuel Arriaga Molina socializ- tall, the description skinny, Hispanic ing in the apartment complex rear an male. Mr. Balderas identified both approached Houston when men them array. lant in photo and Ruiz a Mr. Cami- a pistol. rifle and a Two identify only appellant. lo was able to Of- carrying victims described the man ficer “pocket Sosa secured a warrant”3 for short, heavy, Hispanic rifle as a male and appellant’s arrest.4 tall, carrying pistol skinny, the man as a 18, 2003, On Hispanic male. Mr. Balderas testified that November Officer Sosa ar pressed the shorter man the rifle into his rested a convenience-store days, expires 19.03(a)(2). rant in that it while § Tex. Penal Code regular expires warrant when the initially Appeals 2. The First Court of received arrested or the warrant is recalled. appellant’s appeal, but transferred the case to Appeals. the Thirteenth Court of pocket 4.Officer Sosa did not obtain a war- because, rant for James Ruiz's arrest "pоcket 3. Officer testified that a war- Sosa identification, time of the Ruiz was deceased. regular rant" is different from a arrest war- driving questioned appellant Hernandez Appellant again lot. late- parking Chevy Malibu.5 At the time Officer green robbery model about the and murder. the arrest, police give appellant of his did not repeated warnings, Sosa warnings. police headquar At videotaped statement re- appellant gave ters, ques Hernandez Officers Sosa and garding beginning the incident.8 At the robbery tioned about video, appellant stated that he had however, denied Appellant, murder. become of certain facts about the aware anything the incident. knowing about through crime examiner. Although polygraph' appellant before the thereafter, Sosa and Shortly Officers asserted that he was not aware police po- took to a Hernandez murder, robbery videotape ap- on the used the case file to devel- lygrapher, who re- pellant pertinent discussed information and then op be asked garding Appellant the crime. further stat- polygraph appellant. administered a test to that he of the assailants ed was not one three to four hours to process This took victims, but had robbed and shot the who does not reflect the complete. The record person. rather a “lookout” He main- was name of the officer who administered tained that he had remained in the back- asked, test, could and when Officer Sosa throughout seat Chevy of his Malibu Likewise, officer.6 identify Appellant initially incident. had stated questions poly- that asked in- only that persons there were three examination are not the record. graph volved, informed but after Officer Sosa test, Sosa and Her- After the Officers information, then conflicting he custody appellant, again nandez took persons that in- stated there were fоur appellant Sosa informed and Officer as- Appellant the incident. also volved he failed the exam.7 Offi- had actually serted that the individual who was customary cer Sosa conceded that it is not carrying appellant the rifle resembled that he for a to be informed mistaken they easily could have been test; usually in- suspects “failed” a are for each other. “deception indicated on formed was questions.” of the test The record is some appellant capital The state indicted polygra- silent as to which trial, appellant filed murder. Before had an- pher determined re- motion to his statement and suppress then took deceptively. Officers swered on that quested hearing. hearing At the court, mag- appellant municipal where motion, appellant sought suppress Miranda and other gave appellant istrate he had not videotaped statement because warnings for the first time. statutory received was examina- prompt return to the arrested or before the Upon appellant’s station, the state’s sole Sosa and tion. Officer Sosa was holding central Officers exhibit videotape had 8. The was marked as state’s Appellant conceded that his Malibu robbery. missing be- been used of the interview are 1. Portions videotape stopped at various cause polygra- could not recall the 6. Officer Sosa points, portions were redacted from and some name, was a male pher’s but stated that it the record. officer. he did not know Sosa testified that 7.Officer true, had been factually but that it this to be polygrapher. to him communicated

619 Seibert, hearing. given warnings.9 witness at the The trial court witness, U.S. at 2601.10 The detec- found Officer Sosa to be a credible S.Ct. later, gave tive returned 20 minutes Mi- voluntarily concluded that had warnings, signed randa and obtained a knowingly to remain waived Before waiver and a sеcond confession. silent, the videotaped and admitted state- trial, sought to exclude both ment. unwarned and warned statements. On appeal, appellant’s sole issue was un- Missouri trial court excluded the “failure to Mirandize statement, warned and the defendant was interrogation before the initial second-degree murder. The convicted polygraph examination led to constitutional Court, however, Supreme re- Missouri error in the admission videotaped of his conviction, stating versed the defendant’s Martinez, statement at trial.” 204 S.W.3d that the continuous and at 914. The court of appeals affirmed product second conviction, finding of the invalid first statement. The United satisfy lant did not factors set out five Supreme granted States certiorari. Court in Missouri v. U.S. four-justice plurality A also ruled that Sei- (2004). S.Ct. 159 L.Ed.2d 643 It bert’s warned statements were inadmissi- further stated that the admission of the ble. U.S. videotaped statement did not constitute 2601. The Court stated that constitutional error because it made when a confession so obtained is offered proper after a and functional Miranda challenged, paid and attention must be warning. Id. at 922. conflicting objects of Miranda petition Court, In his to this question-first strategy. and the Mi- sole claim is that appeals the court of randa “interrogation prac- addressed misapplied the standards of Seibert when likely tices ... ... to disable indi- [an it considered proper whether a and func- making from a free and rational vidual] tional given. Miranda speaking, choice” about at 464- U.S. 465, 1602, and held a sus- SEIBERT pect “adequately must be and effective- Patricia Seibert charged ly” of the choice the advised Constitu- arrest, with murder. After gave 467, her she guarantees. tion Id. at 86 S.Ct. however, confession about the being Question-first’s object, murder without accused, police depart- 9. "A officer custody, given from an [the Rolla] held must be strategy withholding ment testified that the adequate warnings "priоr and effective to warnings interrogating Miranda until after questioning,” merely signing not before drawing promoted out a confession was all written statement after the custodial inter- only by department, own but 445, rogation complete. is Id. at 86 S.Ct. police training organization national and oth- give timely warnings 1602. The failure to departments in er which he had worked.” being generally required in the state results 609, Seibert at 124 S.Ct. 2601. forfeit the use of statement obtained dur- ing interrogation during its case-in-chief. Arizona, 10. In Miranda v. the United States alleges When a defendant Id. Supreme "interrogation Court addressed thwarted, protections were the burden of practices likely ... ... individ- [an disable showing admissibility prosecu- rests on the making from a free ual] and rational choice” Arizona, tion. U.S. at 124 S.Ct. 2601 speaking. about 436, 445, Miranda v. 384 U.S. Illinois, 590, 604, (quoting v. Brown 422 U.S. 86 S.Ct. 16 L.Ed.2d 694 (1966). (1975)). unequivocally The Court ruled that 95 S.Ct. 45 L.Ed.2d 416 effec- could be ings midstream” warnings ineffec- delivered to render Miranda until after by waiting give them tive. tive already confessed.... suspect Elstad and The contrast between measure, likely it is

By any objective facts a series of relevant case reveals until after inter- warnings withheld bear on whether ineffec- and confession will be rogation effective midstream could be delivered suspect for succes- preparing tive object: their enough accomplish in time and interrogation, close sive and detail of the completeness pur- in content. The manifest similar of inter- in the first round and answers a confes- question-first get is to pose of overlapping content of rogation, the not make if he sion statements, setting timing the outset. rights understood his second, the continui- of the first and inserted in the are When degree and the ty police personnel, in- continuing midst of coordinated treat- interrogator’s questions they likely are to mislead terrogation, round as continuous with ed the second knowledge a defendant of “deprive the first. ability to his to understand essential 615-16, 124 S.Ct. 2601. Id. аt and the conse- nature of his much in the agreeing “with Although them.” Moran abandoning quences plu for the convincing opinion careful and ‍​​​‌‌‌‌‌​​​‌​‌​‌‌‌​​‌‌​​​​‌‌‌‌‌‌​‌​‌​‌‌‌‌‌‌​‌‌‌‌‍Burbine, 412, 424, 106 S.Ct. Kennedy’s concurring opin Justice rality,” (1986). 1135, L.Ed.2d 410 El Oregon v. ion took a narrower view— plurality 124 S.Ct. 2601. Id. stad, 1285, 84 U.S. emphasized further (1985), be followed un L.Ed.2d 222 should interrogators issue the threshold interrogating proof less there is thus first and warn later is question willing utilized knowingly officer be reasonable to find it would whether undermining two-stage technique, thus circumstances the warn- in these fo Kennedy’s warnings. Miranda Justice as Mi- “effectively” function ings could of the evi admission cus was “whether ef- the requires. randa Could would the circumstances dence under that he had the fectively advise central concerns Miranda’s frustrate an admissible giving real choice about a 619, 124 2601 S.Ct. objectives.” Seibert they juncture? at that Could statement J., concurring). He stated choose reasonably convey that he could plurality concludes whenever [t]he if he had talked talking even stop occurs, admissibility two-stage interview warnings could the For unless earlier? should de- postwarnirig statement of inter- just been suspect who place a Miranda warn- pend [the] on “whether to make such an position in a rogated could have ings delivered midstream choice, no practical there is informed enough accomplish been effective the formal accepting for justification facts of specific object” given their Miranda, compliance as objec- an This test envisions the case. of inter- stage the second treating or for perspective from the inquiry tive first, un- from rogation distinct of both in the case applies suspect, segment. and inadmissible warned two-stage and unintentional intentional 611-12, 124 Id. at S.Ct. view, my plu- [the interrogations_In broadly.... too rality’s] test cuts test crafted a multi-factor plurality The applicable test a narrower apply would Miranda warn- determining “whether case, and the convic- infrequent such as ments are inadmissible we here, in interro tion cannot stand. two-step have which the gation technique was used a calculat (Kenne- 621-22, 124 Seibert at S.Ct. way ed to undermine Miranda find Justice Ken- dy, concurring). We clarity is one of warning.... Miranda’s nedy’s reasoning persuasive. strengths, its and a multifactor test that applies every two-stage interrogation ELSTAD may clarity. serve to undermine that Seibert, Elstad controlled when Before McCarty, Berkemer v. warning Cf. violations addressing Miranda 82 L.Ed.2d 317 S.Ct. In El- confessions. corresponding (1984). stad, suspect spoke single incrimina Elstad, ting sentence at his home.11 admissibility of postwarning state- U.S. at 1285. Elstad had governed ments should continue to be warning before received Miranda principles Elstad unless statement, making apparently because two-step strategy deliberate em- Es police officers did not believe that ployed. If the two-step deliberate strat- custody tad at the time of used, egy postwarning has been state- statement. Id. Elstad was taken to the ments that are related to the substance station, proper he received a where prewarning statements must be ex- warning, rights, his Miranda waived cluded unless curative measures are tak- made a second statement. Id. He later en postwarning before the argued that the should second statement made. Curative measures should be de- suppressed be because it stemmed from signed to ensure that a per- reasonable first statement. Id. at unwarned son in suspect’s situation un- Supreme S.Ct. 1285. The Court held import derstand the and effect of the that, although made a Miranda violation and of the Miranda pre-Miranda-warning statement inad waiver. For example, a substantial missible, could be the warned statements break in time and circumstances be- because, introduced the accused the prewarning tween statement and the case, given the facts of the “neither the warning may suffice most general improper goal deterring circumstances, as it the accused allows goal conduct nor the Fifth Amendment distinguish ap- two contexts and assuring trustworthy evidence would be preciate taken by Id. at 105 suppression.” served a new turn. v. Westover United Cf. Tucker, (citing Michigan S.Ct. 1285 417 States, decided with Miranda v. Ari- 433, 445, 41 U.S. L.Ed.2d zona, U.S. (1974)). (1966). Alternatively, L.Ed.2d 694 ... explains an additional ANALYSIS

likely inadmissibility prewarning may recently custodial statement be sufficient. This has not direct Court in steps ly No curative taken this addressed midstream Miranda warn case, however, case, in but postwarning ings given so the state- such as those point, 11. The officer sat down with Elstad and asked Gross house. At that the officer told person by him if he knew a he Elstad was involved in name Elstad that felt that stated, Gross, robbery. and he said that he did and added that Elstad looked at him and "Yes, robbery a he had heard that there was at the I was there.” police before in Jones v. had dictated to before [the officer] (Tex.Crim.App.2003), S.W.3d 766 we ad- apply he To here was warned. Elstad presented dressed facts similar to those and declare the statement ad- [second] receiving here. Before Miranda warn- by missible virtue of the late admonish- ings, orally Jones admitted his involvement ment of the required warnings would in two murders. Id. at 771-72. An officer spirit undermine the and intent of Mi- wrote the defendant’s confession down rights given randa. The in waiver “verbatim” on a statement form. Id. After connection with the [second] confession, the first the officer read the constitutionally light was not valid in ap- defendant the circumstances and entire course of peared top at the of the written form. Id. police conduct. The officer and defendant read the state- Jones, 119 S.W.3d at 775. The Jones simultaneously, ment then the defendant Court held that the second statement was mistakes, revisions, corrected initialed inadmissible, but found that the error at signed the statement the bottom. Id. admitting beyond it rea- was harmless Elstad, apply stating We declined to sonable doubt. Elstad, in contrast to the initial where Here, pertinent undisput- facts are place unwarned statement took (1) appellant custody ed: un- was defendant’s home and the warned state- (2) murder; der capital arrest for Officer given ment transporting give appellant Sosa did not station, defendant the un- (3) arrest; warnings at the time of his statements in this warned warned questioned Officers Sosa and Hernandez given during nearly case were undif- about the crime at event, single taking place ferentiated giving station required without warn- uninterrupted same room as an 12 (4) ings; appellant did not Mi- receive process. continuous state- written being randa before taken for a Ranger

ment Texas [taken Akin] (4) examination;13 identity literally un- transcription of the polygrapher polygraph-ex- and the finally warned oral statement after he amination are not included warnings; received his Miranda he sim- (6) ply signed record;14 appellate written statement that the trial or 12.During hearing [appellant] cross-examination at the vised that he had appellant's suppress, motion to Officer rights you gave later him on the video- give Sosa twice conceded that he failed to tape? warnings. proper his I did not read him [Officer Sosa]: got you po- [Defense]: [the When down formally, no. station,] thing you lice what’s the first do? got [police [Officer Sosa]: We sta- testimony There record that is no tion], gathered I the case file information told time that he could together my disposal. I'd have it so refuse to take the examination. why again advised him of he was arrested might thought and I him if he that he asked trial, appellant’s 14. In the motion for new speak want to with us.... alleged counsel that the state obtained the you [appellant] Had read his [Defense]: calling polygrapher by name of the the rights at that time? department, but withheld this information un- Had I read him—I hadn't [Officer Sosa]: began. til after trial time, him at thаt no. read

going [Defense]: to the Up magistrate, you until the ^{[*] [*] [*]} time [you had not ad- all]

623 magistrate plurality determining read the Miranda to found relevant in appellant only after both the first round of whether delivered interrogation and polygraph the examina- are the com- midstream are effective facts, tion. Based on these we have deter- questions detail of the pleteness and two-step interrogation mined “the of the first round inter- answers technique way was used in a calculated rogation overlapping and the content of undermine the warning....” the The dissent two statements. 621, Seibert at S.Ct. 2601 by troubled Martinez’s two references J., concurring). the him polygrapher telling three inci- people during were shot parties

The contrary positions assert dent. Unlike Martinez was re- completeness ques- and detail of the peating polygrapher’s general state- tions and answers the first round of crime, regarding ments not his own interrogation. Appellant contends Therefore, statements. unwarned court of appeals misapplied the Seibert first applica- Seibert factors are not factors failing place the burden of ble in Martinez’s case. proof on the satisfy state to fac- five tors, including questions from the first Martinez, Indeed, 204 S.W.3d at 921. interrogation, and that it the state’s record is it lacking; does not contain a burden to questions show what were used complete, partial, description or of even during the polygraph examination. questions in the first answers

The state contends that appellant has round of interrogation test. the burden of producing so, an adequate rec Even not preclude analysis. does ord and that he has failed develop state, proponent as the of the evi concerning record specific questions what confession, appellant’s dence of bears the during were asked the polygraph examina establishing admissibility. burden of its tion and of the unwarned conversa 104(a). See also De la Tex. Rules Evid. State, tions. See Ortiz v. S.W.3d State, 671, Paz v. 273 S.W.3d 2008 WL (Tex.App.-Houston 2004, pet. [14th Dist.] 2437648, *7, 2008 Tex.Crim.App. LEXIS 'd) ref (stating repeal of former rule 751, at (Tex.Crim.App.2008); *26-27 Co (Rule 50(d)) appellate procedure does State, (Tex. v. 891 S.W.2d field absolve of his pre burden of Further, Crim.App.1994). long we have senting a record to requiring show error prosecution held that the bears the burden reversal insofar as he is required to devel proving admissibility when Miranda op record to nature show and source of an See, is found. e.g., Creager violation v. error). State, (Tex.Crim.App. S.W.2d

The court appeals took the same posi- 1997); Alvarado v. 912 S.W.2d tion, asserting did not sub- 211 (Tex.Crim.App.1995) (quoting Colora mit an adequate regarding record the un- do Connelly, questions warned statements and asked (1986)). 93 L.Ed.2d 473 When the officers during the polygraph examination. It initially questioned appellant at the stated that giving station without Miranda warn outset, note that no ings, they we there is violated constitution pre-warning

record Martinez’s state- al rights. suppression hearing, At the ments made Officers Sosa and Her- state failed provide polygrapher’s to. name, nandez or examiner. used the poly examination, graph The first two factors that the Seibert or the content of the interrogation question-first interrogation of all of be- appellant, initial When are under the control of it cannot be the sus- gins, exclusive known whether himself, the state. incriminate but the sus- pect will as out in pect’s rights set Miranda have The state also asserts that this already Although been both El- violated. distinguishable case is from Seibert be incriminating stad and Seibert involved is no cause there evidence interrogation statements in the first any incriminating made statements before second, repeated in the that was not given warnings. he his Miranda We cases, holdings. the focus of the In both (and agree Kennedy plu with Justice prime concern was the constitutional Seibert,) rality every in “not violation in- rights that the Miranda deсision was requires suppression of of the [Miranda ] protect. tended to Seibert at obtained. Evidence is admissible evidence (whether could warnings S.Ct. 2601 the central concerns of Miranda are when effectively, requires function as Miranda likely implicated not to be other admission of the evi- (plurality); “whether objectives justice system of the criminal frus- dence under circumstances would are best its introduction.” Sei served objec- trate Miranda’s central concern and 618-19, at bert S.Ct. 2601 tives”; two-step interrogation whether J., cases, concurring). In an officer some way in technique was used a calculated might recognize not that a is (Kenne- undermine Miranda custody and that are therefore dy, concurring)). It immaterial is agree suppres required. We also incriminating our consideration whether sion of statements under such a warned from the emerged statements unwarned circumstance “neither would serve interrogation. general goal deterring improper police of Fifth of goal conduct nor the Amendment Here, custody for appellant was Elstad, trustworthy assuring evidence.” Miranda; gave both state- purposes Indeed, at 1285. S.Ct. officials after his ments law-enforcement provides practical approach Elstad pursuant formal arrest to an arrest war- enforcing protections. sus “[A] rant, given at both statements were pect responded has once to unwarned who indicates that police station.15 This thereby not yet questioning uncoercive is warnings at the be- absence of Miranda waiving from and con disabled ginning interrogation process fessing given requi after he has been interrogating not a on the mistake based warnings.” Id. site officers’ mistaken belief that Elstad, however, Contrary to 1285. S.Ct. custody, but rather a conscious midstream, warning given a Miranda choice.16 case, requires a closer examination challenges ap- The state the court of used before investigatory techniques continuity police per- given. peals’s finding are and after Miranda will strategy intent of the officer the first interro- “because the Officer Sosa testified that 15. gation place and the sec- took at 1200 Travis here rarely candidly admitted as it was be as Reisner, place at 61 ond took (even likely determine the conduct as it is holding the central area. facts interrogation); the focus is on question-first apart show the from intent that that intent plurality articulated 617, 124 tactic at work.” Seibert determining dispositive not the factor question-first used the whether an officer the first and sec- sonnel, that a same officers conducted arguing there was “substan- statements; tial between the two break” and aside from periods questioning, ond of that, therefore, interrogation and the ‍​​​‌‌‌‌‌​​​‌​‌​‌‌‌​​‌‌​​​​‌‌‌‌‌‌​‌​‌​‌‌‌‌‌‌​‌‌‌‌‍was test during the time which not sup- not continuous. The record does officer, by another was administered port argument.17 continuously appel- they were both lengthy. interrogation process questioning poly-

The was lant. arrest to From ap- testified that he arrested Officer Sosa graph magistration questioning, midmorning and that and Offi- pellant was uninter- presence police personnel questioned appellant cer Hernandez first no “substantial break rupted. We discern 10:00 regarding the case around a.m. in time and circumstances between ended, Shortly interrogation after the first prewarning statement and the Miranda polygrapher taken to the appellant was warning.” examination, given polygraph and ap- Appellant asserts that the court of Immediately took three to four hours. Offi- peals failing erred in to consider that examination, following ap- court, cers Sosa and Hernandez did not tell pellant municipal was taken to the magistrate administered Miranda im- prior questioning where that all of the was approximately p.m., 5:00 seven that it could not bе used proper and questioning. hours after the first After argues him. The state that being arraigned, appellant was returned to lant of his and properly warned holding gave the central station and his giving videotaped them waived before warned, videotaped, second statement. approximately p.m.18 5:15 It is that the officers treated the evident Determining whether videotaped interrogation as a continuation presence police person- continuous first; beginning as in accomplished by nel cannot be focusing interrogation, of the second Officer Sosa only the lapse time between the two re- interrogation referred to the first statements; it is determined consider- appellant during stated he had told what ing all of the events occurred between first interview.19 While statement and unwarned warned state- from the first round of inter- answers ment. Throughout day of his arrest record, can rogation are not in the we charge, appellant on this was with reference to conclude from Officer Sosa’s or other police department person- officers police facility. nel or detained in a the first could plurality 17.The Seibert stated that "it would been Seibert at obtained.” ordinarily spates be unrealistic to treat two concurring). integrated proximately ques- conducted tioning independent interrogations subject they fed Officer Sosa also testified simply independent evaluation because Mi- day, point at some warnings formally punctuate them in randa allowed to call his father Seibert at 124 S.Ct. 2601. middle.” girlfriend, give Sosa could not but Officer out, points two-step "As Justice Souter specific time. technique permits the accused to conclude respond not to did not exist Remember, you I told [Officer Sosa]: incriminating when the earlier statements chain; going yank your I'm I’m not [that] strategy were made. The is based on * going to bull around? [s]h* assumption that Miranda will tend mid-interrоgation, to mean less when recited [Appellant]: Yeah. already inculpatory statements have results, purposes. for all continuity exist- are inadmissible reasonably assume that a 64, v. See Nesbit State 227 S.W.3d interrogations. the two ed between (quoting Nethery (Tex.Crim.App.2007) video, began by Officer Sosa On the (Tex.Crim.App. 692 S.W.2d appel- reading the Miranda 1985)). Hence, had the re the officers appellant if he under- lant. He then asked the appellant to inform sponsibility appellant replied af- rights, stood his test, or during polygraph questions asked officers, however, failed firmatively. Both results, could not be used trial the test that, on the lack appellant based to inform of the test at trial any and that mention any statement warnings, prior of Miranda This, coupled prohibited. was likewise interrogation, in- previous made the fact that the officers initiated the exam, could be not cluding polygraph the interroga regarding the first conversation him. used tion, the likely created belief itself, test, po- in and of The polygraph again dis compelled mind that he taking poly- Before the great ses concern. in the first inter cuss the matters raised knowing denied about graph, appellant during the second interview.20 view Sosa failed to inform crime. Officer two-step strate If the deliberate the poly- refuse to take lant that he could used, “postwarning been state gy has test, that, starting or graph test to the substance of ments that are related stop generally time. See he could must be excluded prewarning statements 15.051. At the PROC. art. Tex.Code CRiM. before measures are taken unless curative test, Sosa in- conclusion of the Officer is made.” Sei postwarning statement he had “failed” the formed J., (Kennedy, bert at indicating that the results test without agree that “curative concurring). We answers, nor as to some deception showed designed to ensure measures should be questions appel- he tell whiсh did suspect’s in the person that a reasonable deceptively. previ- As lant had answered import situation would understand examiner, noted, ously polygraph warning and of the effect of the Miranda from the by appellant the facts learned Examples appro Id. Miranda waiver.” (1) examiner, by mentioned polygraph priate curative measures include: It in the and the officers video. in time and circum substantial break in this state that long has been the rule stances between unwarned test, warning (Kennedy);21 to its and the Miranda to a or references we to allow rule would be frustrated were plurality emphasized that The meaning effect. undermine its unlikely suspect highly that a seems [i]t high simply risk technique creates too The understanding could retain such postwarning will be ob- statements interrogator time leads him second suspect deprived of tained when a questioning suspect through a line of "knowledge ability under- essential to his fully. point already is answered the conse- stand the nature of his involuntary unknowing or not that a later abandoning Moran v. quences them.” earlier, adequate out an confession cancels 412, 423-24, Burbine, 106 S.Ct. U.S. warning; point is that (1986). 1135 ... question-first unlikely to be effective 124 S.Ct. 2601 Seibert at sequence we have described. concurring). n. Seibert at 614 because must also fail 21. The state’s assertion Kennedy Justice noted test, completed was not [tjhe in this case distorts the technique used integral p.m., an legiti- approximately 4:30 until meaning and furthers no of Miranda than part Less of the unwarned statement. countervailing The Miranda interest. mate (2) in order to apply any curative measures explaining to the defendant statements, in cus- harm caused the Mi- unwarned taken while ameliorate the (Kennedy); Appellant’s videotaped tody, likely are inadmissible randa violation. (3) informing although therefore inadmissible. We statement was information, previously gave incriminating ap- of the court of judgment reverse (plurality); it obligated repeat he is not cause to the court of and remand this peals (4) interrogating the officers refrain from a harm may it conduct appeals so statement un- referring unwarned analysis. (plurali-

less the defendant refers to it first (5) ty); PRICE, J., concurring opinion. or if the defendant does refer to filed a statement, pre-Miranda the the interro- HERVEY, J., dissenting opinion filed gating officer states that the defendant is P.J., KELLER, in which MEYERS the obligated not discuss the content of KEASLER, JJ., joined. (plurality).22 first statement No curative steps taken in case. this J., PRICE, concurring opinion. filed responsibility The officers had the year tried before This case was over applying begin curative measures at the in Supreme opinion issued its Court interview, or, ning of the second v. Seibert.1 The brief Missouri least, very they to the first when referred appeals the court of was filed a week interrogation They of appellant. did nei appeals’s before Seibert.2 The court of ther. Such omissions or actions are not appellant’s only claim on resolution likely “to ensure that a person reasonable hampered by thus a record appeal was suspect’s in the situation would understand developed anticipation of a import and effect of the Miranda Supreme opinion, Court rather than and of Miranda Sei waiver.” light already-established Supreme Court 622, bert at S.Ct. 2601 There is no claim that precedent. concurring). Curative measures allow ap- properly preserved issue was not distinguish accused “to contexts however, peal, apply and Seibert would appreciate interrogation that the pending case on direct retroactively taken a turn.” Id. new appeal, as this one was.3 Once a defen- case,

In this apprise officers did not dant has that his statement was shown they interroga- of his Miranda made as a of custodial result tion,4 began custodial has the to establish and failed State burden ended, 314, Kentucky, an hour after the test v. 107 S.Ct. Griffith began (1987). interrogation process, the second 93 L.Ed.2d 649 thereby leaving an be- insubstantial break interrogations. tween the two State, 4. See v. 241 S.W.3d Herrera (State (Tex.Crim.App.2007) has no burden to nonexclusive, they examples are 22. These but compliance show Miranda unless record provide guidance as to when curative meas- "clearly establishes” defendant’s statement ures are needed. interrogation). product of custodial Here, undisputed it is 1. 542 U.S. 159 L.Ed.2d under arrest from the outset of his interaction (2004). police, any inquiry with the lant about the offense 2. See 204 S.W.3d Martinez examination, 2006) (Yanez, including during (Tex.App.-Corpus n. 19 Christi J., dissenting). unquestionably interrogation. constituted compliance with Miranda.5 I subsequent warnings.7 do not know expressly Without (or resolving whether burden should extend to addressing) dispute dis- even proving precede court, circumstances today simply lower the Court suffice, might Kennedy’s declares Justice view the law contemplation of “persuasive,” to call the effica- and seems to I adopt it. cy am, of those into agree doubt. that we do not need to reach the therefore, entirely unsympathetic since, issue of opinion controlling, Judge Hervey’s view, my view of matters. prevail Howev- should er, the State complained itself has never under either test. that it has been an inappro- saddled with Judge Hervey As both and the court of priate proof burden of in this In case. out, appeals point nothing we know almost event, even were we to hold that the bur- present on the record about the substance appropriately den more falls upon ap- interrogation poly- the initial or the pellant prove to circumstances that would graph Assuming examination. for the of otherwise valid Mi- impugn efficacy argument sake of that the burden rests

randa warnings, I believe on the rec- defendant, ordinаrily gap with the in ord before us it can be said that he has prove the record fatal to a would burden, carried that if only barely. claim, on predicated upon which its face is

The debate in the of appeals court cen- the fact that the police pre- obtained a Sei- opinions tered around which of the in before Mir- sumptively coerced confession bert was the one, andizing controlling Here, the plurality suspect. what little opinion of Justice Souter or the narrower the record does appel- reveal about the pre-Miranda concurring opinion Kennedy. of Justice police lant’s contact with is Applying plurality the Souter steadfastly as authorita- that he denied involvement tive, majority appeals of the court of in the offense until after he was warned. appellant held that the had failed to But the record also show shows pre-Miranda examination, that the po- polygraph contact with the submitted to the lice, including polygraph, undermined immediately informed the effectiveness of the Miranda that he warn- had failed it. We do not know concurrence, ings.6 Applying Kennedy specifically respect his what answers she controlling, may deemed the dissent- been can deceptive, have but we be ing justice police would have held that the police they sure that the told him knew failed Mirandize deliberately to deception his in an to effort wear down his them, lant before him subjecting poly- confessing by resistance to dem- examination, graph onstrating they already and took no to him curative “had efficacy goods” me, measures to assure the him.8 To this is the Arizona, 436, 478, 8.Judge Hervey complains 5. See Miranda v. the record (1966) (state 86 S.Ct. 16 L.Ed.2d 694 does not indicate whether the interrogation ments made custodial polygraph at the outset of the ex- Mirandized are inadmissible "unless and until [Miranda ] Dissenting opinion, amination. аt 10 n. It warnings and waivers are demonstrated undisputed is was under prosecution at trial[.] Colorado v. Con polygraph arrest when he submitted to the 157, 167-68, nelly, 479 U.S. examination, quintessence inter- (1986) (State L.Ed.2d 473 has burden to show rogation. The State therefore had the burden rights). waiver of Miranda prove junc- he had been at this Mirandized ture. See n. A ante. silent record on this State, supra, at 918-921. Martinez point against must militate the State. 7. Id. at 924-28. likely appreciate determinative circumstance this case. test would not his silent, It satisfies both the Souter and the Kenne- remain even once Miranda warn- dy establishing administered, criteria for an ings ineffective are be- mid-interrogation warning. Miranda gin ground” to “lead him over the same respect mendacity with to which his In explaining why warnings given after already especially This is been revealed. already may a confession has been elicited tardy so if the cause constitutionally adequate not as the serve reasonably believe evidence envisioned, prophylaxis that Miranda Jus- mendacity his on the examina- Souter tice observed: tion can him. A and will be used all, question-first After the reason that practically failed is as effective catching on is as mani- obvious as its demoralizing as a coerced confession so purpose, fest get which is to a confession suspect subsequent Miranda warn- not would make if he under- ings efficacy. will lack their intended outset; stood his the sensi- agree that, given with the Court the conti- ble underlying assumption is that with nuity appellant’s interrogation one confession hand before the warn- interrogators,10 person “a reasonable ings, interrogator get- can count on shoes [his] have understood ting duplicate, its trifling additional warnings] convey [mid-stream Upon trouble. hearing message retained a choice [he] only in the aftermath of continuing about to talk.”11 just confession, after making a hardly Kennedy require would think Justice that the he had a genuine silent, right to remain use of the question-first let alone tactic was a delib- persist believing police so once the erate choice of the police interrogators. began to lead him ground police over the same The waited more than six hours again. likely A more reaction on a sus- after questioning begun had to take the pect’s part perplexity would be about appellant to the him magistrate to have the reason for discussing rights at that they Mirandized. But him had Miran- point, being bewilderment unpromis- an immediately informing dized him that ing frame of knowledgeable mind for he polygraph. had failed the It fair to worse, decision. What is telling a sus- infer from these circumstances that pect that “anything you say can and will day’s interrogation up point whole to that against you,” be used expressly without had been either at eliciting pre- aimed excepting just the statement given, they Miranda confession that could then could lead to an entirely reasonable in- repeat, him demoralizing have or at him to ference just that what he has said will point that a post-warning confession used, be subsequent being with silence Indeed, forthcoming. would be it is hard of no avail.9 to imagine explain what else could lengthy delay in him underlying Mirandizing The same “sensible after he assump- pertains interrogator’s plainly tion” to the a was under arrest and the police use of to, polygraph. fact, failed A suspect obviously ques- who has been desired and did in interrogated and confronted the fact tion him about the with offense. The Court is pass that his denials did not justified lie-detector in its de novo conclusion that the supra, supra, 9. 124 S.Ct. 2601. 124 S.Ct. 2601. Majority opinion, at 625-26. tactic, observations, additional I utilized a deliberate calculat- With these appellant’s to undermine the will join opinion.

ed the Court’s talking warnings before Miranda resist

could steel his resolve.12 HERVEY, J., dissenting opinion filed KELLER, P.J., MEYERS and

Both Souter and Justice Kenne- Justice JJ., joined. KEASLER look to some cura- dy would see whether I may measures have been taken.13 tive The federal constitutional decision agree there was no Court pro- Miranda v. Arizona1 establishes the in the time or circum- meaningful break in-custody suspect phylactic rule that an interrogation se- day-long stances of the certain must be “warned” that he has demoralizing effects quence such silent, rights, such as the to remain learning he had failed question suspect. before the can examination would have case, basically claims In this informed worn off. Nor was though he these warn- even received he part of the Miranda eventu- voluntarily made a custodial ings before failing ally received videotaped police, these examination not a circumstance “adequate- failed to nevertheless (both trial could be used at his ly effectively” him of his apprise it came prior because under Miranda. poly- the results of warnings and because majority opinion appears to decide generally graph examinations are deemed Kennedy’s one-judge concur that Justice too unreliable to be admissible criminal opinion in con ring Missouri Seibert2 Texas). trials in Because no such amelio- case. See holding tains the Court’s exist, conclude, rating like circumstances States, Marks v. United Court,14 the Miranda (where (1977) 51 L.Ed.2d 260 purpose,”15 “could their have served [not] a case and no fragmented “a Court decides appellant’s and that the confession there- result en- single explaining ‍​​​‌‌‌‌‌​​​‌​‌​‌‌‌​​‌‌​​​​‌‌‌‌‌‌​‌​‌​‌‌‌‌‌‌​‌‌‌‌‍rationale the suppressed. fore should have been 622, (Kenne used.”); dispute the historical be id. at 124 S.Ct. 2601 12. There is no about J., (‘‘For concurring) example, any application dy, a substan facts. is there of law Neither between or credibil tial break in time and circumstances to fact that turns on the demeanor Sosa, pre-warning and the Miranda ity witness at the statement of Officer circumstances, hearing. Although warning may in most suppression the facts were suffice for, distinguish the two hoped as it allows the accused to developed could be not as well appreciate essentially contexts and that that were elicited were the facts n * * Thus, Alternatively, an has taken a new turn. unchallenged. reviewing courts likely warning explains that additional question efficacy may review of the inadmissibility pre-warning custodial de novo. State mid-stream sufficient.”) may Ross, 853, be (Tex.Crim.App. 856 v. 32 S.W.3d 2000). Majority opinion, 14. at 625-27. Seibert, 616, supra, at 124 S.Ct. 2601 See 617, supra, S.Ct. 2601. (Seibert's interrogating (plurality opinion) of- ficer, administering warnings, 1602, 478-79, 86 S.Ct. 1. 384 U.S. nothing probable misim- ‘‘said to counter (1966). L.Ed.2d 694 anything pression the advice that Seibert applied her said could be used also 600, 618-22, previ- inculpatory statement 2. 542 U.S. the details of the (2004) concurring police did ously particular, In L.Ed.2d 643 elicited. judgment). in the prior statement could not not advise that her Justices, Kennedy’s holding decided that Justice joys the assent of would have five may posi- concurring opinion be one-judge of the Court viewed as “narrower” con- tion taken those Members who un holding contains the Seibert Court’s judgments curred narrowest narrowest-grounds approach der Marks’s (internal omitted).3 grounds”) quotes The under this appellant and that should win to decide majority opinion appears also Martinez, 204 S.W.3d holding. See “holding” under the wins (Yanez, J., dissenting).6 I would 924-28 Kennedy’s concurring opinion in Justice unnecessary decide that it is to determine incomplete because the record or Justice Kenne Justice Souter’s whether presented establishes control dy’s plurality opinions “two-step interrogation technique that a disposition appel of this case because way used a calculated [in case] present lant has not carried his burden warning.” See to undermine Miranda showing that he sufficient record wins Maj. op. at 623. opinions. under either one of these See appeals’ majority opinion The court of State, 651-52 Word S.W.3d four-judge decided Justice Souter’s (Tex.Cr.App.2006) (appellate courts should plurality opinion in Seibert4 contains the from a record and presume error silent because, holding though Jus Court’s even appealing party’s pres it is the burden to Kennedy’s one-judge tice con opinion showing properly preserved, ent a record judgment curred in the on “narrower” error); Rowell v. reversible grounds, the “underlying rationales of Jus (Tex.Cr.App.2001). S.W.3d 280-81 Kennedy’s tice concurrence and [Justice capital mur- Appellant was convicted plurality opinion divergent are so Souter’s] (murder robbery) during der committed they render Marks’s narrowest- in prison.7 and sentenced to life The evi- grounds-interpretation inapplicable.” rule dence from trial shows that Martinez, See 204 S.W.3d 918-21 2006).5 people robbery three were shot (Tex.App.-Corpus Christi by appellant per- committed and another appeals’ majority opinion, court of howev er, son, both of whom used firearms. One decided that loses under Jus robbery gunshot died from his plurality opinion. tice Souter’s See id. victims The court of appeals’ dissenting opinion independently The other wounds. Maj. op. (finding waiving confessing 3. See at 621 Kenne- after he Justice dy’s reasoning persuasive). given requisite Miranda warn- has been Seibert, ings”); at 612 n. see also U.S. Seibert, 604-18, 4. See 542 U.S. at 124 S.Ct. (suggesting that the defen- 124 S.Ct. 2601 J., Stevens, (Souter, joined by Ginsburg, Elstad); but see dant would have lost under JJ.). Breyer, 622-29, 124 542 U.S. at (O’Connor, dissenting, joined by Rehn- so, plurality 5. If this were Justice Souter’s Thomas, C.J., JJ.) quist, (sug- and Scalia and opinion major- in Seibeit could not contain a gesting might defendant have won under that little, ity holding any, and would have if Elstad). binding effect in this case. Under these cir- cumstances, Supreme majority Court’s dissenting opinion, appeals' 6. The court of arguably opinion Oregon v. Elstad would therefore, appellant would have decided that case, disposition ap- control the of this holding "narrower” than the wins under a Elstad, Oregon pellant would lose. Seе appeals' majority opin- one the court of that 298, 318, appellant under. ion decided that loses (1985) (“a suspect L.Ed.2d 222 who has responded yet once to unwarned noncoercive penalty. questioning thereby The state did not seek the death is not disabled from 7. appellant appellant’s identified as one of the robbers trial statement was unwor- photospread approximately belief, from a self-serving thy of but that even this They months after the incident.8 also to appel- statement was sufficient establish appellant identified at trial as one of the guilt.10 lant’s The police questioned appellant robbers. appeal on direct Appellant claimed arrest, day on the of his and appellant erroneously the trial court denied a motion voluntarily videotaped made the custodial Addressing suppress this statement. response statement at issue in this case in the merits of this claim under United police questioning receiving Supreme States Court’s fractured decision his waiving rights. This state- appeals the court of decided appel- ment was admitted into evidence at that Seibert did not require suppression trial. Appellant lant’s claimed this exercised our appellant’s statement. We nearby in a that he was car discretionary authority to review this deci- acting as a lookout others robbed the while appellant’s victims.9 The state claimed at sion.11 During closing jury arguments, example, argued during the state 10. For the state clos- significant ing jury arguments appellant’s claimed that it vic- trial: both at independently tims identified as one you If this defendant’s believe [STATE]: (apparently comparing of the robbers statement, you everything says take as winning lottery): chances of this to true, says tape: it here twice on this I was a Mr. Camilo couldn’t look at him [STATE]: car, looking sitting lookout. I was point They or at him. scared the hell out of around, going knowing guys werе these And, him. But what’s their motive? fur- you're get a lick. You're lookout thermore, this, you gee, let me ask because guilty capital murder. I want in on are the odds that this. What going those two little Mexican men are [appellant’s lawyer], you Now would have defendant, pick man that the same same about, know, you and she went on night shotgun pointed at had the them suggestiveness and all this confession shotgun, who who also has a also owns cetera, cetera, cetera, though et et et skinny description friend that meets the her put officers these words in client's given by Ruiz that was the name of James Well, you I watched mouth. know what? puts and that also the defendant himself you've got tape and it in evidence and I Boy, there? What the odds? if himself are times where the de- counted at least seven ticket, lottery that was a we would all be says particular tape fendant in that he’s again. rich and never have to work watching I either a lookout or he's out. Wouldn’t that be nice? don't believe that. I think that statement is Appellant's evidence statement was totally self-serving you probably and I think presented trial that did not do, intelligent. all too. You’re robbery place appellant at the scene where the were shot. All of the other victims Well, you you know what? If want to be- evidence shows that was at the ahead, statement, go right you but lieve that robbeiy. Though greater scene statement, don’t, you believe that even—if weight presented of the evidence you up you, you if do and it’s are the but trial was one lant’s establishes you. judges You of the evidence before of two armed robbers scene it, you fine. if believe what he believe But legitimate robbery, evidence raised a this also statement, says guilty capital of in that he’s appellant actually fired question of whether murder. weapon. Our review of the trial record his actually fired indicates that whether ground granted upon which we reviеw 11. The weapon, not whether he was at the and states: robbery, probably was the most scene of the misapplied Appeals Court of legitimately disputed issue at Whether the factual determining standards of in the lant's trial.

633 Seibert, likely ... that if the consciously objective measure it is police In a officer technique of interrogators employ the interrogate in-custody de decided to the inter- withholding warnings until after the providing Miranda fendant without warn confession, eliciting in a rogation succeeds ings and obtained a confession. See Sei prepar- in warnings the be ineffective will bert, 604-06, 124 S.Ct. interroga- ing the for successive break, twenty-minute After about a tion, in time and similar content” close provided officer the defendant same “likely deprive and a and would mislead and basi with Miranda obtained knowledge of essential to his defendant cally the same confession after more inter ability to understand the nature of his rogation during interrogating which opin- rights.” plurality Justice Souter’s officer also confronted defendant with case, ion also described the facts prior some of her unwarned statements. very little resemblance to the which bear suppressed See id. A Missouri trial court pre- facts in the record that confession, the initial unwarned but admit sented this case: ted the later warned one. See id. The At opposite extreme are the facts decided, Supreme Missouri Court what here, by any objective measure appears type to be of “fruit poi un- police strategy adapted reveal a analysis, tree” cir sonous “[i]n (Foot- warnings. dermine the Miranda here, cumstances where the omitted). interroga- note The unwarned continuous, nearly was ... the second house, tion conducted in the station statement, clearly product [warned] of systematic, questioning and the ex- statement, first invalid should have haustive, managed psychologi- suppressed.”12 frаgmented been In its cal skill. were finished When decision, Supreme majority reject Court little, if of anything, there was incrimina- ed a analysis ultimately agreed “fruits” but ting potential left unsaid. The warned Supreme with the Missouri Court that the phase questioning proceeded of second warned confession should have minutes, pause of 15 to 20 Seibert, suppressed. been See U.S. place segment. same as the unwarned 604-18, (Souter, J., joined When the same officer who had conduct- JJ.) by Stevens, Ginsburg Breyer, phase ed the first recited the Miranda at 618-22 concurring in the warnings, nothing he said to counter the judgment). probable misimpression that the advice plurality opinion Justice Souter’s in Sei- used anything Seibert said could be bert decided that this confession should to the details of applied her also suppressed, by “any previously been because inculpatory have proper object: completeness and functional Miranda and detail of the given Appellant finding Ap- here questions and answers the first round pellant’s custodial statement admissible. interrogation, overlapping content of the statements, timing setting 12. See State v. 93 S.W.3d second, continuity police per- first and (Mo.2002), aff'd, 542 U.S. at 124 S.Ct. sonnel, interroga- degree and the to which 2601; but see 542 U.S. at 612 n. round as tor’s treated the second 124 S.Ct. 2601. Seibert, 542 continuous with the first.” See 2601; Mar- U.S. at see also plurality opinion 13. Justice Souter's sets out tinez, (applying these 204 S.W.3d at "a series of relevant facts that bear on wheth- uphold admissibility factors to er Miranda delivered midstream statement). enough accomplish voluntary be effective their custodial could particular, police nique way

elicited. In did not used in a calculated to was prior her her statement advise warning.” undermine the Miranda See omitted). (Footnote not be used. could Apparently agreeing id. with the rest of Nothing dispel said or done to was plurality opinion, Justice Souter’s Justice oddity warning legal rights about to Kennedy further a stated where “de- right silence and counsel after thе used, liberate two-step strategy” is through systematic her a inter- had led postwarning statements “that are related uncertainty rogation, any on her prewarning to the substance of state- part stop talking about a to about ments” must be excluded unless curative previously only matters discussed would postwarn- are taken before the measures aggravated by way Offi- have been ing statement is made. See id. These by saying cer scene Hanrahan set the designed curative measures be “should for a little talking “we’ve been while ensure that a in the person reasonable happened Wednesday about what suspect’s situation understand the (Citation twelfth, to rec- haven’t we?” import warning and effect of the Miranda omitted). impression ord The that the and of the Miranda waiver.” See id. questioning further a mere continu- example, “For a break in time substantial ation of the earlier and re- prewarn- and circumstances between the sponses fostered references back ing statement and the Miranda already given. to the confession It circumstances, may suffice in most as it regard would have been reasonable the accused to distinguish allows continuum, parts the two sessions as appreciate interroga- contexts and in it unnatural to which would have been tion has taken a new turn.” See id. repeat stage at the refuse second case, In filed a motion to been said before. These cir- what had suppress a month be- about challenging must cumstances be seen began. sup- fore his trial His motion to comprehensibility efficacy press alleged, part, that: relevant point to the that a person suspect’s reasonable shoes statements, The or written admissions to con- would not have understood them confessions, made, if do not vey message that she retained choice proper reflect that the admonitions were (Footnоte talk. continuing about 38.22, given, in violation of Article Sec- omitted). tion of the Texas of Criminal Code 616-17, 124 See 542 U.S. at Fifth, Procedure; Four- Sixth and teenth Amendments United Kennedy’s concurring opinion Justice Constitution; I, and Article States plurality asserted that Justice Souter’s Section 10 Texas Constitution. opinion broadly” by applying “cuts too “an (Emphasis original). objective inquiry perspective from the sup- testify witness suspect” to “both intentional and unin- pression hearing Officer Macario Sosa. two-stage interrogations.” tentional See He testified that he arrested 621-22, 124 542 U.S. at S.Ct. 2601 sta- this offense and took to a concurring judgment). tion, 10:30 they arrived at about where Kennedy Justice stated that he “would Appellant a.m. denied involvement only in apply applicable test narrower case, here, and another officer the offense when Sosa infrequent such as we have if it. tech- asked he wanted to discuss two-step which the poly- [appel- that he did not know whether Sosa testified that he had not “read [Miranda ] at that time.” of his graph appellant lant] examiner informed Miranda rights. Apparently not satisfied with any denying answer involvement ex- polygraph So the Q. [DEFENSE]: offense, then arranged appellant Sosa information gives person aminer take a examination. These polygraph to about the of- they’re asking questions during took about an hour arrangements fense; correct? is that appellant questioned time was not I can’t present A. I so wasn’t [SOSA]: police.15 Although Sosa did not during you exactly happened tell what inform that “he didn’t specifically appellant the examination. any- to take the or polygraph have talk Q. say for sure that you So can’t offense,” body about this he him if did ask provide not him polygrapher did willing he was to do so.16 An “unknown to ask him details of the offense order polygrapher” polygraph conducted the ex- questions? amination, which lasted about three or four say provided A. he de- can’t whether p.m. hours until about 4:30 Sosa not tails and Miranda warnings, what have present during polygraph examination. no, suppression hearing you, Sosa testified at the ma’am.17 minute, majority opinion po nothing twenty thirty 14.The or asserts that the like the "questioned appellant lice the crime at pro- about unwarned Seibert police giving required station incriminating without duced the defendant’s state- warnings.” Maj. op. ment, See at 622- [.Miranda] repeated twenty which she about min- appellant presented 23. The record that during interrogation. utes later the same See brought initially ap reflects when Sosa 604-05, 542 U.S. at 124 S.Ct. 2601. station, pellant police denied any involvement the offense when Sosa and polygrapher 15. Sosa testified that the reviews another officer asked if he wanted the entire case file in order to decide which police asking appellant to discuss it. The if polygraph to ask exami- “interrogation” he wanted to discuss it is not nation. purposes. for Miranda See Rhode Island Innis, 291, 301, 100 S.Ct. appears 16. The record to reflect that (1980) ("interrogation” any L.Ed.2d 297 agreed polygraph lant to take the examination part police words or actions on the willing after Sosa asked him if he was to do police reasonably likely should know are so. incriminating response); to elicit an Moran v. Q. said, (Tex.Cr.App.), 213 S.W.3d 922-23 up Like I until that [DEFENSE]: denied,-U.S.-, 235,- time, cert. you given had never indica- L.Ed.2d-(2007) (police officer's comment poly- tion that he didn't have to take the in-custody police defendant that the had graph anybody or talk to about this offense? spoken just to other witnesses after defendant basically him if A. I had asked [SOSA]: police had invoked his when counsel willing polygraph regards to take a asked defendant if he wanted to discuss the to this incident. "interrogation” offense was not thus not re (as Court) quiring subsequent appeals exclusion of defendant's 17. The cоurt of does this were, statement). incriminating police apparently testimony considered this to mean therefore, required provide was not before the Mirandized Martinez, asking appellant before if he wanted See examination. ("The presents it. Even if it be to discuss could said S.W.3d at 921 instant case police "questioned appellant problem [appellant] crime” about the because made purposes they initially pre-Miranda police for Miranda statements to officers and station, examiner, brought appellant's given sepa- him the was then warnings by magistrate denial of involvement in the rate offense officers, interrogating finally ap- it asked him if he wanted to discuss randa polygraph rights the examination p.m. When about 5:16 This was over, by polygraph Sosa was informed the the in- personally first time that Sosa examiner appellant of his Miranda that had “failed” it.18 rights. appellant formed just The record is silent on ex- otherwise Appellant rights waived these and volun- actly what occurred during three to tarily provided the statement at issue in examination.19 polygraph four-hour being questioned by this case while Sosa another police stopped officer. The appellant Sosa informed that he had questioning appellant p.m. During at 6:08 “failed” the polygraph examination20 and police this of appellant, interview did appellant magistrate, then took before a to, with, his not refer or appellant appellant who informed of confront p.m. any (incriminating at about 4:55 or Sosa then took statements other- wise) appellant may to another that police appellant during station where have made his Mi- again Sosa of appellant polygraph police informed examination and the No, peared videotaped in a that was A. ma'am. trial.”). admitted into evidence at This testi- Martinez, (noting 19. See 204 S.W.3d at 916 however, mony, does not establish that ques- that a "record was not created of the polygraph lant was not before the Mirandized tions, statements, polygraph or results actually examination. The record is silent on examination”); compare 542 U.S. at critical issue under Seibert. This issue is ("The unwarned interro- Seibert, because, appellant critical under if house, gation was conducted in the station polygraph before the exami- Mirandized questioning systematic, and the exhaus- nation, any reading then he loses under tive, managed psychological with skill. Seibert. little, police When the were finished there was anything, incriminating potential if said.”). left un- portions 18.The record is silent on which polygraph the three to four-hour examination know, appellant that "failed." For all we Arguably, this is the evidence that appellant portions could have "failed” might a raise viable issue under since polygraph that were unrelated to this offense possible hardly it that "would (e.g., appellant given could have a false name genuine right think he had a to remain silent” resulting "failing” polygraph). in him being poly- after told that he had "failed” a Sosa also testified that it would be more accu- speculate graph examination. One could say "Deception rate to was indicated” on appellant, having ini- this silent record that questions, certain but that he did not know tially denied involvement in the offense precise questions "the that were asked that station, brought when first con- supposedly deception.” reflected deny any tinued involvement offense Q. during polygraph I believe I said earlier examination and [DEFENSE]: fact, you [appellant] having told he failed. In when confronted polygraph polygraph, hardly thought that’s not what a examiner "failed” the he (in say you; genuine right part remain silent isn't true? Some- had pass polygraph, thought fail or do because he could have one doеsn't they? polygraph “failed” him could be used No, trial) and, thus, receiving a correct later at [SOSA]: A. that's not term. Q. twice, say gave correct to So it would be more somewhat polygraph expert say incriminating or examiner would statement that minimized his ques- you: Deception placed was indicated on this involvement in the but still offense (the question? state tion or that scene given percentage argued guilt). They A. would have or at trial still established his This ma’am, ques- why degree deception, yes, per might is another reason it be critical for tion. the record to reflect whether or not Q. But, records, again, you poly- without those received Miranda before the precise questions graph actually oc- don't recall the that were examination and what polygraph supposedly deception? reflected curred examination. asked that then repeat had “failed” examiner did huge up these blanks of time through examination.21 trip magistrate, until the closing sup- statement at the Appellant’s occur until almost 5:00 o’clock. did not hearing smorgasbord pression presented sufficient inter- submit those are not We for suppressing appellant’s of reasons vening circumstances to remove reasons, statement. None of these howev- all, lack of taint. First of the er, that presented appellant’s a claim and then on day’s questioning before the statement, “clearly product [any] the of urge you to consider tape the itself. We statement, first been invalid should have used, techniques that are the coercive or that not suppressed”22 had argumentation [appellant’s] the of refus- “adequately effectively” and apprised been the accept guilt, al to his denials of of his rights before he made this suggestion made that there is evidence statement.23 truly it exist that exists when doesn’t Honor, just prelimi- Your [DEFENSE]: urge you and forth. And also to so we narily, expressed we note the lack of an lack of memo- consider Detective Sosa’s beginning waiver of ry concerning surrounding the events basically detective, videotape with the taking the of the statement also raise knowing rights, you these do want to question credibility some the in- about express talk? There is no waiver regard says to he volved with what however, rights; importantly, more we urge you about done. to what was We you day-long ask to consider the worth suppress the statement.24 quite vague of activities that seem to be closing suppres- In its statement at the mind, Sosa’s lack any Detective the of hearing, argued sion the state record-keeping, inability explain the to the after voluntarily lant made statement on, going what’s been what was talked understanding waiving receiving, lack, day long, impor- about all the most rights. rights or Mi- tantly, of reading randa warnings during brief, question- Very Judge. all the All I [STATE]: ing reoffer, course, throughout day by occurred do is the would video- 21.Compare 542 U.S. at The im- omitted]. S.Ct. haven’t we?’ [Citation (“When pression questioning was a the same officer con- that the further who had mere continuation of the earlier phase ducted the first recited the Miranda responses was fostered references warnings, nothing he said to counter (em- already given.”) back to the confession probable misimpression that the advice that phasis supplied). anything Seibert said could be used applied inculpa- her also details of Seibert, 93 tory 22. See S.W.3d 701. previously particu- elicited. In lar, prior did not advise her 611-13, statement could not be used. omit- [Footnote 23. See 542 U.S. at Nothing dispel was said or done to ted]. legal rights oddity about to silence right after had led her and counsel noteworthy appellant raised It is also through systematic interrogation, suppression claim no or issue uncertainty part stop on her about a informing to hearing him that he had that Sosa talking previously about matters discussed “fаiled” the examination caused only aggravated by way giving have been subsequent of the Miranda warn- by saying ings Hanrahan set the scene Officer him to be ineffective such that he to talking genuine right “hardly [thought] 'we’ve been for a little while about had a he twelfth, Wednesday happened what on remain silent.” appears heard and take into con- behavior of Officer Sosa to be tape you everything sideration that Officer Sosa exemplary and it is admitted.26 [appellant] being said terms appellant’s offered state- When state threatened, forced, anything promised, just ment into trial evidence any way give the statement that days suppression hearing, after the did, that his Miranda were appellant reurged objection” his “earlier off given properly, they read first time the trial directed card, Specifi- State’s Exhibit No. 2. blue court’s attention to v. SeibeH.” “Missouri cally warning, each the defendant going At this time I’m [STATE]: or not he understood was asked whether offer 1A into again evidence. right. He did. He did it videotape. pur- He was—not Honor, Your at this time [DEFENSE]: drink, go chased food and allowed objection just our reurge we earlier room, make phone the rest allowed to it, v. to add to a reference to Missouri line, calls, his Judge, bottom is state- Seibert, S-E-I-B-E-R-T, Su U.S. voluntarily made.25 ment was case, preme pending, No. 02- Court motion The trial court denied 1371.27 findings on suppress to based My ruling stands the COURT]: [THE freely, voluntarily knowingly lant “did and same. Admitted. give his to remain silent and waive for his Appellant’s suppressing claim that statement.” The trial court made the statement became more focused and even following ruling: appeal. clear in his brief on direct In going am to admit [THE COURT]: containing addition to a citation to the specific finding I make a the statement. Supreme decision in Sei- Missouri Court’s a credi- I have found Officer Sosa to be beH, appellant’s appeal brief on direct also is a ble The arrest wаrrant witness. presented argument that the admission good appeared arrest It warrant. into of his statement consti- evidence was voluntarily did [appellant] freely, error, tutional because “the unwarned rights to remain knowingly his waive as an questioning warned occurred give silent and that statement. There process.” testimony uninterrupted no of threats. The and continuous was Supreme Court had Appellant made no claim that this failed to 2003. The Missouri 25. warnings whether the Miranda address handed down its decision in Seibert about six making 10, the statement "ad- he received before before this December 2002. months on apprised equately effectively” him of Seibert, See State v. 93 S.W.3d at 700. On rights. these 19, 2003, May Supreme Court exercised jurisdiction to review the its writ of certiorari ruling Appellant made no claim that this Supreme Missouri Court’s decision. See Mis- failed to address claim that the Miranda souri warnings appellant received before mak- (2003). The Su- 155 L.Ed.2d ing “adequately and the statement did not preme handed down its decision in Court effectively” apprise rights. these him of 28, 2004, about one week Seibert on June therefore, is, clear that could It appeal after filed his brief on direct to the Missouri have alerted the trial court appeals. U.S. in the court of See Supreme Court's decision 2601; Martinez, 600, 124 S.Ct. 204 S.W.3d hearing just days before. suppression (Yanez, J., dissenting). Appel- at 924 n. 19 May Appellant’s place between trial took appeal brief on direct also cited to lant's 23, 2003, May with the motion to Supreme Missouri Court’s decision Seibert. hearing occurring May suppress also likely ... ... things, appellant argued “interrogation practices other Among appeal: making his brief on direct from individual] disable [an speaking, choice” about free and rational What occurred here was that the un- (citation omitted), that a sus- interrogation process, including and held warned submitting Appellant polygraphing, “adequаtely and effective- be pect must tactically get used Appellant ly” the choice the of Constitu- advised make admissions before he of was aware omitted). (citation guarantees, tion legal rights. Appellant his That eventu- to render Mi- object question-first is ally warnings before the received randa by waiting ineffective recorder was turned on too video opportune give for a time to particularly little too late about hours [sic] them, already con- after the interrogation. custodial fessed. Miranda, Court, In the Supreme having incantation [is] Just as “no talismanic in-custody interrogation concluded that [Miranda’s ] required satisfy stric- suspect by “inherently is com (citation tures,” omitted), it be pelling,” decided that it constitutional think absurd to that mere recitation ly “adequately necessary for the litany satisfy suffices to effectively apprise! in-custody ]” every circumstance. “The conceivable suspect of certain rights, such as the inquiry simply whether the silent, to remain before can reasonably ‘convefy] suspect] his [a in begin order “to combat these [inherent ” (Ci- Miranda.’ rights required as ly compelling] pressures permit and to omitted). tations The threshold issue full suspect] opportunity [the ‍​​​‌‌‌‌‌​​​‌​‌​‌‌‌​​‌‌​​​​‌‌‌‌‌‌​‌​‌​‌‌‌‌‌‌​‌‌‌‌‍to exercise first and interrogators question when privilege against [Fifth Amendment] later is thus it be warn whether would (sic).” Miranda, self-incrimination See in [objectively] reasonable to find that (em 445-58, 467, 384 U.S. at 86 S.Ct. 1602 warnings these circumstances the could phasis supplied).28 Justice Souter’s plural Miranda re- “effectively” function as ity opinion in Seibert decided that effectively quires. warnings Could the “question-first” interrogation technique of suspect advise the that he had a real of his Mi informing in-custody suspect an an giving choice about admissible state- randa rights in the middle of a “coordinat juncture? they ment at that Could rea- continuing ed and interrogation” after the sonably convey that he could choose to suspeсt fully has not “ade confessed does stop talking if he had talked earli- even quately effectively and apprise! this sus ]” See warnings er? For could pect rights. of his unless U.S. 611-14, 124 inter- opinion place suspect just S.Ct. 2601. This who has been states: rogated position in a to make such an choice, practical informed there is no

aWhen confession so obtained is offered justification accepting for the formal challenged, paid be attention must Miranda, of Miranda conflicting objects warnings compliance as with Miranda addressed question-first. or for of inter- treating stage second right Requiring 28. There is no Fifth Amendment U.S. Const. amend. V. an in-custo "against dy suspect self-incrimination.” The Fifth to be informed of his Miranda rights question ap Amendment at issue in Miranda and can before right. person's right parently safeguard cases like this is a not "to be intended is 467, 478-79, compelled in criminal case to be a wit- See 384 U.S. at Miranda. (emphasis supplied). ness himself” first, just could to an rogation given, as distinct from the un- lead entirely reasonable inference that what segment. warned inadmissible used, (Footnote omitted). just he has said be with subse- will Thus, quent being silence of no avail. There is no doubt about the answer that in warnings Miranda are inserted proponents question-first give to this continuing the midst of coordinated and question about effectiveness warn- they likely are to mislead interrogation, ings given only after successful interro- “depriv[e] knowledge a defendant of think their is gation, and we answer ability essential understand measure, By any objective ap- correct. rights of his and the conse- nature plied exemplified to the circumstances (Citation abandoning quences of them.” here, likely interrogators it if the is omitted). token, By the same it would technique withholding employ the ordinarily be unrealistic to treat warnings interrogation until after suc- spates integrated proximately confession, eliciting ceeds warn- questioning independent cоnducted ings preparing will be ineffective interrogations subject independent suspect interrogation, successive simply evaluation because close in time and similar content. warnings formally them the punctuate all, question-first After the reason that middle. catching on is as obvious as its mani- (emphasis supplied). Id. purpose, get fest which is to a confession plurality opinion in Sei- Justice Souter’s suspect not make if he under- bert, therefore, that first sets out rule outset; stood his the sensi- to an providing in-cus- underlying assumption ble is that with nearly tody suspect in the middle of a before the one confession hand warn- continuous after the get- ings, interrogator can count just providing the same as confessed is ting duplicate, trifling its trouble. no Miranda at all. If the Upon hearing warnings then obtain another confession warned interrogation just aftermath of during nearly interrogation this continuous confession, making a a process in the absence of “curative hardly genuine think he had a would sup- measures,” this confession must be silent, per- let to remain alone con- since this confession will pressed, be. police believing sist in so once obtained without the sidered to have been began him to lead over same warnings.29 requisite prophylactic Miranda (Footnote omitted). again. ground A Seibert, 611-16, 124 S.Ct. See 542 U.S. at part likely suspect’s more reaction on a Kennedy’s concurring opin- 2601. Justice perplexity be about the reason for require apparently agrees except ion discussing rights point, at that bewilder- question-first] inter- two-step [or “that the being unpromising ment an frame rogation technique used in a calculat- knowledgeable mind for decision. What the Miranda way ed to undermine warn- worse, “anything Seibert, telling suspect a is at ing.” See concurring be used in the you say can and will S.Ct. 2601 judgment).30 opinions, Both of these expressly excepting you,” without Seibert, (giving warnings prerequi- 86 S.Ct. 1602 U.S. at 124 S.Ct. 2601 29. See confession). admissibility sitе to of custodial (Miranda admissibility at trial conditioned the a sus- custodial confession opinion appeals’ majority 30. The court of Miranda, rights); 384 U.S. at pect of his case, therefore, may erroneously have (almost therefore, significant it detail of the answers considered first round of over- interroga- [and] dispositive) that the unwarned statements”). lapping content of the two produced a confession that re- tion very a short time peated almost verbatim a Assuming appellant preserved minutes) (about twenty during later review,32 appel- appellate Seibert claim for interrogation. The warned showing a record presented lant has not that it immaterial opinion this Court’s “is Seibert. that he is entitled to relief under incriminating to our consideration whether police The record does not show emerged “question-first” statements from the unwarned interro- actually used interrogation”31 ignores signifi- gation technique the most described that, tactic, did they they if did use such a component cant led way in a to undermine the so calculated to conclude that the Miranda Court warn- warning. Miranda This record does defendánt; ings provided just twenty to the support finding just had provided complete minutes after she con- during nearly confessed continuous and during interrogation, fession an unwarned uninterrupted interrogation process when “adequately effectively” failed to in- Sosa informed of his Miranda form the defendant that she did not have rights and obtained the statement issue See, provide e.g., another confession. here.33 U.S. S.Ct. 2601 (some relevant facts that “bear on whether incomplete record that delivered midstream presented appel- does show enough station, could be to accomplish effective brought lant first to the object” them are “the completeness interrogate pur- did not state, underlying closing decided that "the rationales of nor the based on its statements Kennedy’s plu- hearing, suppression Justice concurrence and the understood rality opinion making princi- Justice are [of Souter] so diver- lant be a claim on the based gent they render Marks's narro west- ples in either the United States Su- discussed grounds-interpretation inapplicable.” rule preme Supreme Court’s or Missouri Martinez, (which See 204 S.W.3d at 920. It would in Seibert could ex- Court’s decisions appear Kennedy’s concurring that Justice plain complete record the lack of a on what opinion might holding contain the exactly in Seibert exami- occurred nation, narrower-grounds approach. under Marks's particularly a critical issue under Sei- Martinez, See also 204 S.W.3d at 920 n. 5 appellant actually bert of whether received (noting that the Fifth Circuit has decided in warnings prior polygraph ex- unpublished amination). two recent decisions that Justice See Buchanan Kennedy’s holding 772, ("When concurrence sets out the (Tex.Cr.App.2006) S.W.3d 775 Seibert). in The defendant in won objection specific, legal Seibert is not and the obvious, Kennedy’s under Justice Souter’s and Justice basis is not it does not serve the plurality opinions apparently contemporaneous-objection because these purpose of the opinions agreed question-first that the inter- appellate rule for an court to reach the merits rogation technique in in a used essentially of a forfeitable issue that is raised way calculated to undermine and did under- appeal.”) (emphasis in for the first time on Seibert, warning. mine the Miranda See 542 original). 6, (Souter, J.) U.S. at 616 n. 124 S.Ct. 2601 J.). and at 620 State, 766, 33.Compare Jones v. 119 S.W.3d (defendant’s (Tex.Cr.App.2003) warned 775 Maj. op. 31. See at 625. inadmissible because "the un- warned and warned statements this case given during nearly Arguably, suppression undifferentiated 32. the record from the court, event, single taking place hearing in the same room as reflects that neither the trial ruling hearing, uninterruрted process”). suppression at the an and continuous based on its 642 of Miranda?34 showing properly preserved, did not er-

poses appellant reversible incriminating ror). make unwarned state police during ments that the later used appellant The majority opinion permits And, because the rec

warned interview. an record by presenting incomplete to win dur exactly ord is silent on what occurred showing gaping no reversible error with examination, it is diffi ing polygraph issues, holes of silence on critical based on cult, that impossible, if not to conclude “long the assertion that this has Court may transpired during this something have prosecution held that the bears the burden polygraph examination to cause subse a Miranda admissibility proving of the Miranda quent giving warnings violation is found.” See Maj. op. 623 Such a conclusion would be ineffective.35 State, (citing Creager v. 952 S.W.2d The pure speculation.36 be based on rec v. and Alvarado (Tex.Cr.App.1997) not presented ord that does (Tex.Cr.App. 912 S.W.2d appellant’s posi that establish someone 1995)). majority The cases cited hardly tion think that he had a “would opinion support holding do not he genuine right to remain silent” when appealing party present incomplete can an the custodial state voluntarily provided showing and silent record no reversible being in ment at issue this case error and win.37 his waiving rights. formed of and Word, Creag- See majority opinion’s citation (appealing at 651 S.W.3d concurring opinion Creager er cites to party present has- burden to a record single technique police could have been 34. And even if it could be said asking using) subsequent giving question by caused the to be ineffective. See State if he wanted to discuss it was (Tex.Cr. Kelly, 204 S.W.3d 819 n. purposes, for Miranda it is clear that this does (state App.2006) interrogation in does not assume burden to not resemble the unwarned prove produced voluntariness of a defendаnt’s confes Seibert that a confession. initial bur sion unless the defendant carries present support finding den to evidence to Appellant presented evidence at the no Terrazas, involuntariness) (citing State v. (such as, hearing example, suppression 1999). (Tex.Cr.App. S.W.3d of his Miranda before informed fully polygraph or that he examination examination) significant videotaped inter- during It is confessed clearly view reflects that the did not even raise an issue of whether some- with, to, thing transpired refer or confront state- may have otherwise) (incriminating might ments or or thereafter have examination giving may subsequent of the Miranda lant have made caused Compare examination. See 542 U.S. at warnings to be ineffective. 605-06, (interro- (interrogating 124 S.Ct. 2601 officer follows 124 S.Ct. 2601 542 U.S. at unwarned confession with Miranda hearing gating suppression officer testified at "and then to cover the same leads the to with- that he "made a 'conscious decision’ time”) ground (during a second and at 605 resorting warnings, thus an hold Miranda interrogation, interrogating warned officer taught; interrogation technique he had been suspect with her unwarned state- first, confronts ments); Martinez, give warnings, question then (noting 204 S.W.3d at 921 get repeat question ‘until I the an- then the polygra- repeating “was the ") that already provided once' swer that she's regarding pher’s general the crime statements (noting 124 S.Ct. 2601 542 U.S. at 616 n. shot], people three were not his own [that [interrogating] officer that the "intent of the statements”). unwarned candidly admitted as it was rarely will be as circumstances, here”). the state Under these contrary. prove actually any burden to 37. Our case law is never assumed Word, (or at See 206 S.W.3d 651-52. polygraph examination

643 (usually by proposi- specific presents the claim that he which sets out unremarkable evidentiary showing tion that the State bears the bur- that making “[w]hen an would claim). State, proof den of on a motion in which the support the See Herrera v. statement, suрpress defendant seeks to (Tex.Cr.App.2007) 241 S.W.3d 526-27 in (mere claims was obtained violation to does not filing suppress of motion Miranda, prove the State need waiver compli on the state to show thrust burden only by preponderance of the evidence.” unless and until defen ance with Miranda (Mey- 952 at n. 2 Creager, See S.W.2d proves that statements he dant wishes ers, J., in- concurring). Alvarado did not interroga exclude result of custodial were violation, a claimed Miranda the volve tion) (Cochran, J., concur and at 533-34 Alvarado, in relying defendant rather than (“The warnings ring) to Miranda record, incomplete on an and silent actual- applies once the defendant establishes that ly presented testified and other evidence setting interroga is one of custodial suppression hearing at a that raised Only then does omitted]. tion. [Footnote issue of the voluntariness of his confession ‘heavy burden’ to estab State have put before the state to its burden to given lish that Miranda were Alvarado, prove voluntariness. See voluntarily and that the defendant waived 210-11;38 v. Kel- S.W.2d see also State rights voluntarily responded those (state ly, 204 n. 22 S.W.3d does not questioning.”).39 Only custodial then does prove assume burden to of a voluntariness the burden shift to state to defeat defendant’s confession unless defen- specific being claim its failure to do so dant carries initial burden to raise an issue grounds appeal by for a successful confession). of involuntariness of the party. other See id. The Court’s decision A always required defendant has been to prove is based on the state’s failure make some initial showing something on the record that it never had the burden to legitimate prove, the trial court that raises a “raised” issue because never of whether he is entitled to relief under the the issue.40 record, relying example, appellant’s suppression

38. Rather titan on a mo- silent 40.For actually presеnted defendant Alvarado evi- tion did not raise an issue of effectiveness factfinder, dence if believed of the Miranda that re- supported finding have that the defendant’s Appellant's suppression ceived. motion al- involuntary placing confession was the bur- leged "proper admonitions” not prove den on the state to voluntariness. See given. quite alleging This is different from Alvarado, 912 S.W.2d at 210-11. "proper given admonitions” were but "proper did not "ad- these admonitions” Kelly, 39. See also 204 S.W.3d at 819 n. 22 effectively” equately apprise appellant of (defendant produce had initial burden to evi allegation under Miranda. support finding dence to that she did not appellant’s suppression argu- motion and the draw); consent to blood Ford v. hearing suppression ments he made at the (defen (Tex.Cr.App.2005) S.W.3d certainly put did burden on State dant, violation, claiming Fourth Amendment prove "proper these admonitions" producing bears initial burden of evidence to responded were ineffective. The state support finding improper police conduct presented appellant’s ‍​​​‌‌‌‌‌​​​‌​‌​‌‌‌​​‌‌​​​​‌‌‌‌‌‌​‌​‌​‌‌‌‌‌‌​‌‌‌‌‍suppres- claim proving a search occurred with such as proved suppression sion motion when it shifting out a warrant the burden to the state were, hearing "proper admonitions” search); validity to establish the Terra fact, given. zas, (state at 727 never assumed S.W.3d Arguably, appellant’s citation to "Seibert" prove burden to of defendant’s voluntariness days the middle of trial two carry confession because defendant did not hearing raising suppression her initial burden of an issue of volun- raised issue would, tariness). warnings. how- effectiveness of case, “heavy In this the state carried its in the court to

burden” trial establish that given

appellant voluntarily waived his voluntarily responded to custo- questioning producing videotaped

dial If appel-

statement at issue this case. really put

lant meant to the trial court and party

the other on notice that it needed to

prove warnings really these did not

“adequately effectively” apprise him of rights,

these then he should have said so remaining

instead In silent. other

words, he should have “raised” this issue. respectfully dissent.

AUTOZONE, INC., Appellant, REYES, Appellee.

Salvador

No. 13-03-338-CV. Texas, Appeals

Court of

Corpus Christi-Edinburg.

Dec.

Rehearing Aug. Overruled ever, this, result, coming just it did ent did issue as to decide still not raise days suppression hearing effectiveness of the under Sei- explana- middle of trial without further bert. require why a differ- tion “Seibert"

Case Details

Case Name: Martinez v. State

Court Name: Court of Criminal Appeals of Texas

Date Published: Dec 17, 2008

Citation: 272 S.W.3d 615

Docket Number: PD-1917-06

Court Abbreviation: Tex. Crim. App.