*1 X ROCHA, Appellant, Felix
The STATE of Texas.
No. 73280. Texas. Appeals Court of Criminal April
OPINION
KELLER, J., opinion delivered McCORMICK, J., the Court in which P. MANSFIELD, WOMACK and KEASLER, JJ., joined.
Appellant was convicted November (murder capital 1998 of murder robbery). course of a Tex. Penal Code 19.03(a)(2).1 § jury’s Pursuant to the an- swers to issues special set forth in *4 Texas Code of Criminal Procedure art. 2(b) 2(e), §§ 37.071 and the trial judge . appellant sentenced to death. Article § 37.071 2(g).2 appeal Direct to this Court 2(h). § 37.071 Ap- automatic. Article pellant points raises of error. fifteen We will affirm.
I. SUFFICIENCY OF
THE EVIDENCE
two,
point
error
contends that
failed
prove
the State
corpus
underlying
delicti for the
offense of
The
robbery.
corpus delicti rule is a rule
evidentiary sufficiency
that can be sum
an extrajudicial
marized as follows:
con
alone,
fession of wrongdoing, standing
conviction;
not
enough
support
there
must exist
that a
showing
other evidence
crime
been
has
fact
committed.
State,
186,
Williams v.
190
This other
(Tex.Crim.App.1997).
evidence
commonly
“corpus
to as the
referred
delicti.” Id. This other evidence need not
prove
be sufficient
itself
offense:
“all that is required is that there be some
which renders
commission of
than it
probable
offense more
would be
(quoting
without the
Id.
Cham
evidence.”
McDonald,
Randy
Houston,
appel-
(Tex.
bers v.
866 S.W.2d
15-16
lant.
denied,
Crim.App.1993),
cert.
U.S.
Smith,
Kelly
Atty.,
Ann
Asst.
A patrol radio informed dispatch two is overruled. Point error shooting officer of a Michael Junco
progress. Junco arrived at scene II. VOIR DIRE body gunshot find Fuentes’ wounds. with A. Defendant’s gun Junco noticed there was no Peremptories/Challenges for Cause holster. Fuentes’ nine, appellant of error point
The man as tall was later identified in re the trial court erred contends that Virgilio Maldonado. The short man permit exercise of fusing to the retroactive law to be believed enforcement officials challenge. After individ peremptory a X.E. appellant. Houston Police Officer Kelley, David voir ual dire examination Avila In his oral appellant. interviewed juror. parties accepted Kelley as a both statements, following appellant gave the dire, requested that appellant in voir Later and Fuentes Appellant version of events: retroactively a permitted to exercise he be had involved in an altercation at some been The challenge Kelley. peremptory against had prior to the Fuentes time murder. request. Without trial court refused appel- and otherwise embarrassed beaten trial lant, authority, appellant contends re- get had vowed to process “due refusal violated his night killing, appel- court’s venge. On impartial jury.” Fuentes. to fair lant and Maldonado confronted ish, gun heard and understood this demand. Appellant's was made demand for Munoz, Span- Spanish. who understood 6 Legislature prescribed against prospective has juror Williams in viola procedure exercising for cause and for tion of the proscription constitutional
peremptory challenges by
parties
in a
against excluding jurors with conscientious
capital case. Article 35.13.4 Under this
scruples concerning
penalty.
the death
procedure, “the defendant must exercise
Constitution,
Under
United States
peremptory challenges upon the examina
juror
prospective
may
disqualified
be
tion
prospective jurors
of individual
with
having
scruples
conscientious
about
out the opportunity
panel
to evaluate the
penalty only
death
if his “views would
State,
as a group.”
v.
Janecka
739 S.W.2d ‘prevent
impair
or substantially
perfor
813,
(Tex.Crim.App.1987). Having
833
fol
juror
of his
mance
duties
accor
”
statutory procedure,
lowed the
the trial
dance
his
instructions
his oath.’
court cannot
held in
failing
error for
Witt,
412, 425,
Wainwright v.
469 U.S.
105
grant an
peremptory challenge.
out-of-time
844,
(U.S.1985).
S.Ct.
B. State’s for Cause past, person that’s been convict- ed, ten, one, point past, his if he has error what claims erroneously they say, that the trial court evidence. And I other- granted a challenge person the State’s for cause could decide whether provides: proba- The statute 5. That issue asks: is a "whether'there bility would juror that defendant commit crimi- capital A in a case in which the state has made it it will seek the death nal of violence would constitute known acts that penalty, qualified, passed continuing society.” held to shall be threat 37.071 acceptance challenge for or to the state 2(b)(1). first § Challenges and then to the defendant. jurors peremptory are either or for cause. process not, though participate
dangerous even that fuse or question yes or no? Or answer that finding that he might lead to you could sit as you saying that you are put should be death. Could through the deliberation juror, go do that? jurors go through that process I determine A. I don’t know how could you determining, they’re when person dangerous could be that themselves, know, all 12 dis- among the future. determining cussing the case and Well, me for Q. assume—assume with an- that issue should be whether possible moment that that’s for or no? yes swered you to do? think I would have trouble A. I right. A. All that one. Q. that’s human possible That Well, Q. you it’s Okay. okay it being to And look at from do. fact, juror every that trouble. aspect. ques- If answer this an- should have trouble sits there tion, it from a yes looking at —and swering special issues. all these that are three point view there is, could Okay? question But there, third of the questions is one persuaded, answer you, you were way get for that man the death no special yes issue aspect, From that could penalty. indi- your the benefit of Mr. Rocha to that you give ques- fair attention upon the evi- judgment vidual based your Or would views affect tion? you heard. dence way you ques- looked A. No. tion? do Q. You could not that? Yes, they
A. would. A. No. Regardless of circumstances? Q. voir [Defense dire] A. No. Q. you saying regardless Or the amount of evidence ground for This reveals a colloquy has, regardless of the prosecution from articulated challenge distinct *7 they may eyeball witnesses that ina not claim that her Witt. Williams did crimes, example, have of other for from bility to answer the issue stemmed other crime victims from In penalty. her views about death that, know, maybe you a behavior stead, that issue simply she claimed did, that you saying you person to an susceptible not that answer one you could never answer would— predict cannot be because future behavior 1, yes? Special Issue No. challenge, ed. from a Witt While distinct I I A. I don’t think could. Because a valid presents nevertheless this scenario could, don’t I even still think based is entitled challenge for cause. The State what someone would tell me or juror to a who will be able answer me, I I don’t could show believe affirmatively in dangerousness issue future that per- choose to decide whether State, v. case. Chambers appropriate something would the fu- son do (Tex.Crim.App. 323-324 568 S.W.2d they’ve such as done ture 1978), grounds, Grijal other overruled on a I Don’t think it’s decision past. (Tex.Crim. State, 420, 425 614 S.W.2d va v. could make. Chambers, prospective App.1980). In profession juror who was a statistician Q. Okay. you’re saying And that that’s issue dangerousness future that the decision—that that’s not deci- stated by reason not be determined you think can make? could you sion that, stand- logic from a statistical you you would re- saying Are point, whether an act probably will occur capital classified murder offense because cannot proven beyond future be person not accept does that offense as reasonable doubt. Id. found We the sta- a valid criteria for imposing sentence of tistician to for challengeable cause. Id. death. Howard 941 S.W.2d Similarly, Williams showed an ina- 128 (Tex.Crim.App.1996)(juror would be bility to dangerousness answer future properly unwilling excludable if to consider upon issue based belief future penalty death for murder the course dangerousness is incapable an issue of de- of a burglary); Fuller v. 829 S.W.2d challengeable termination. She was 191, 199-200 (Tex.Crim.App.1992), cert. de cause on that basis. nied, 508 U.S. 113 S.Ct. juror (1993)(prospective prop L.Ed.2d 640 challengeable Williams was also erly unwilling excluded because she was cause because she could never consider the except penalty consider the death in serial death penalty for a murder committed murders). robbery: course of a In cause, challenging Williams for voir [Prosecution dire] State commented that is unqualified “she Q. A capital murder A capital trial. jury serve on this on more than one is the killing murder intentional point.” Although objected defense counsel during another human being a rob- disqualification, he Williams’ conceded bery, assault, killing po- sexual of a that Williams’ answers to con- questions police lice officer while a officer in cerning dangerousness the future issue of duty. the line There are other raised valid concerns: “I can see the crimes, but those are—are three of concern, perhaps Court’s prosecutor’s con- you Do them. feel those answer, cern over that first special warrant a grave crimes sentence as issue way she does.” The trial court as the death penalty? had grounds grant more than sufficient A. Part of them. challenge State’s for cause. Point of Q. you ones do agree Which not with? error ten is overruled. A. I’m so robbery. sure about the Q. The case that’s here? eleven, In of error point A. general. general. claims erroneously the trial court Q. In general? granted challenge the State’s for cause A particularly. Not against juror prospective viola Fowler Q. Right. tion of proscription the constitutional really against excluding jurors A. specific have—I con- with conscientious *8 I cepts scruples penalty. as what crimes would concerning the death put think would allow someone to support prospective be of his contention that juror qualified, death. appellant Fowler was sets following colloquy forth the from the rec Q. alleged in indictment What’s ord: the killing person here is of one you during robbery. think .Do voir [Prosecution dire]
you could ever vote for the death Q. you you Do have some—I hear in a case penalty that involved the —do you you you feel say, don’t like during of one killing person a rob- judge? can Is that on a— based bery? religious just belief? a personal Or A. No. you code that have? juror A prospective challengeable for Well, belief, person basically, religious cause if A. would never vote to penalty a statutorily really. death it, then, prevented impaired or I that it’s would not have Okay. And take Q. of her duties she should performance that is in on an based admonition excused, trial court of, and the been judge the form not— have erred.” A. Yes.
Q. you judged? portions less crucial Appellant [sic] omits individual voir Fowler’s record. Before Yes. A. elicited con- judge the trial began, dire you That believe? Q. is what deciding death from her about cerns A. Yes. penalty case: peo- Q. You understand that —that I indicated was I’d also THE COURT: ple, all the time. That we do this they everybody whether going to ask every culture in the world almost religious, a moral or consci- you felt had they system judge has where some keep you scruple that would entious disputes people at least between accurately being fairly able to from punishment or assign blame you questions presented answer the know, demand, you compensation case. capital of a murder the course very wrongs, least? a situation like that? youDo have A Yes. Well, I think PROSPECTIVE JUROR: you Q. despite you Do feel like how judge, I like I can I do. don’t feel you that —that judgment feel about know, You it’s— I don’t know. because this, participate could civ- I I say can I this? don’t feel like how il—I know it’s a court —but criminal anybody, if it was on judge can because judg- in the citizen’s exercise my other hand and son was ment? situation, really think I could. I don’t Well, can, I I I yes, A do. feel I outlines fol- colloquy have to. question ap- and would lows the Court’s All Q. right. you And what do —what But, appel- Fowler. pear to rehabilitate mean, you you do have to? include voir dire neglects lant say if, I honor you A know—it’s an immediately affirma- following Fowler’s I I serve. That’s what mean. If pro- can “go through tion that she chosen, to, if yes, have I’m can. cess”: All Q. right. you you So don’t have a— dire] voir [Prosecution don’t have a belief that’s—that’s so Okay. really we I notice that —and you Q. fundamental that would have Judge. it with the juror? didn’t address refuse to take an oath as a you him how feel about You told No, I A don’t. you don’t. Do really that. You Q. Okay. you you And do have— —but objection pen- to the death you having problem putting— alty? in a putting yourself position of A. Yes. else? judging somebody Okay. Yes I is—how would Q. A. am. What —what objection to the you your state Okay. you How do feel could— Q. you *9 penalty? death you you carry do feel like could you you go like could out—do feel if I can rule. That A. I don’t feel like pro- this through process and do I guilty, really person found cess? my I It be on don’t think can. will get if they would conscience A. Yes. penalty. death appellant concludes: passage, From Q. Right. personal Ms. Fowler’s views “Because A. I couldn’t live with penalty that. I because couldn’t five with Knowing that. I did that. Q. notice, however, I you that the—in questions. Defense counsel asked no questionnaire you you that stated — The you support that record contains option ample answered conclusion you you really that Fowler’s views that did not have a about — problem penalty the death would fact penalty. the death substantial- impair ly ability you her to the case in That that it decide thought had a valid juror. accordance with her oath place. as a court trial did not abuse its discretion A. In certain cases. granting the challenge State’s for cause. Q. Okay. you objec- So don’t have an Point of error eleven overruled.
tion to penalty? all—all the death you, yourself,
But you don’t feel like III. MOTION TO SUPPRESS participate? could Findings A. Failure Make Written No, A. I don’t. One, point appellant error Q. contends the trial court in fail your Is erred feeling strong you so ing findings to file written of fact and tell Judge would can- you granted conclusions of law. We not take the oath and participate motion abate remand State’s penalty a death trial? to file findings case such and conclusions. A. Yes. order, Pursuant to our remand the trial Q. sorry. I’m All right. you And un- findings court filed of fact written derstand, nobody laws doesn’t regarding appellant’s conclusions of law —the where, put you position in a to suppress motion his confession. Point
make — know, you you you know, of error one is overruled as moot. are— they you where force take Voluntary Warnings B. Waiver of you
oath cannot with. comply okay. you say So it’s It’s fine four, points appel- of error three and given that. But —but if the option lant contends that the trial court should you not participate, your feel like suppressed have certain oral statements about penalty beliefs the death will Articles under 38.22 and 38.23. He ad- you cause to participate? two arguments support vances of this that, you judge Cause tell the I First, appellant argues contention. per- cannot take that I oath because comply the State failed to with Article sonally participate cannot in death because, 38.22 transcription while the penalty trial? the recorded conversation shows required warnings given, were the tran- A. Yes. scription appellant does not show that Q. you Is there else anything wanted Second, rights. appellant waived his as- me your feelings tell about about that the serts record shows his confession that? (1) involuntary to be because he did not (2) his rights, prom- understand the officer Well, A. my goes heart out it’s— help ised to he did what son, anybody’s only I because (3) said, officer appel- officer told one child. And if he do something say. lant what to it will me. hurt wrong, hurt And it person, me about the other because 1. The Facts feel they know how about their child, said, really, According findings too. So I like I it to the trial-court’s *10 (cid:127) record, my following will be on in a death and review the conscience our
H uh, you to to I want AVILA: O.K. Homicide De- INV. Houston Police occurred:6 hap- what of of of inter- us a statement assigned to Xavier Avila was tective uh, state- giving us this pened, you are in with the defendant connection view you forcing voluntarily. No one April ment had on robbery bank occurred it to, us what to tell what Shortly robbery, after the bank 1996. Yes No? hospital happened? recov- appellant in the while wound, con- gunshot Avila ering from a Yes. CHANOCUA: recorded an interview that was ducted oral this what? AVILA: Yes? Then INV. beginning At the audiotape. voluntary? It is regarding ap- appears colloquy interview it asked? being Is CHANOCUA: pellant’s rights:7 (All colloquy, original). After this “...” name? your INV. What AVILA: subject The proceeded. the interview Benito Chanocua.8 CHANOCUA: robbery. was the bank interview Uh, Benito INV. AVILA: Chanocua? Benito, uh, continuing before with 24, 1996, Detectives Avila and April On you your notify we interview need went to the Harris Coun- Jaime Escalante Uh, you read legal rights. Spanish? can appellant, who was ty Jail interview robbery. custody aggravated already for Yes. CHANOCUA: however, return asked them to Appellant, Uh, INV. O.K. here on this AVILA: day, day. following following the, your legal rights uh are card have returned to April Detective Avila uh, Sp Spanish ... read me written De- appellant alone. jail interview right. your first car- was not in uniform and tective Avila right You CHANOCUA: appel- he met with weapons ried no when say your absolutely maintain silence lant. you may make nothing statement you may against used in cause jail inter- arrival Upon appellant’s Two, any, any state- which is accused. room, him- Detective Avila introduced view you may ment that make be used as investigating a self and that he was said against you in You have court. that his even- appellant homicide. He told attorney present have an for right Maldonado, co-defendant, Virgilio had tual you you ques- him to advise are before statement, which he already given tioned, during you being the time are appellant, Detective Avila implicated you employ If questioned. cannot part of that statement played short you right have the to have one attorney hearing record- appellant. After you you assigned during ... advise he to make ing, appellant indicated wished you questioned. You have the time Avila then as well. Detective statement right to this interview at terminate Imme- audio-tape his recorder. activated you that ... desire. time recorder, activating De- diately after you Do understand INV. AVILA: O.K. legal appellant tective Avila read his your rights? indicated that warnings, appellant ac- verbally appellant he understood: Yes. CHANOCUA: summary 7. of the oral interviews is taken almost Both of the facts 6.Our findings quote Spanish. from trial court’s We from verbatim were conducted in to the trial court’s factual fact. In addition English translation. summary, we about have inserted discussions made of the two oral statements contents Appellant was as Benito Chano- also known statements, by appellant. were State’s Those cua. hearing. We have pretrial at the exhibits "appellant” the trial court’s substituted the factual sum- use of "the defendant” in mary. *11 knowledged that he lawyer understood each indi- present. otherwise have a Nor did right vidual and indicated directly indirectly to Detective Avi- Detective Avila or prom- appellant la that he wished to voluntarily anything waive ise or induce otherwise Moreover, rights give those and make a him to his ap- statement. The statement. translated transcription colloquy pellant way of this no or threatened Avila, appears speaking as follows: coerced into with Detective appel- and Detective never promised Avila uh, uh, you INV. can AVILA: O.K. tell anything in lant return for his statement. this, here, you ... speak take can into uh, this. happened Tell me what about The appellant’s trial court found that uh, uh, this guard, incident about a claims he not did understand the Mi- you uh, uh, your let me legal read warnings randa to him read Detective First, you first. right have the to main- Avila to be not court credible. trial your tain say absolutely silence and recording ap- also found the audio nothing. Any you statement that make pellant’s require- statement satisfied may against you be used in the cause ment set forth Article 38.22 and that the you you which are accused. Do under- recording was true correct and had stand? not been altered. The trial court also CHANOCUA: M-hm. transcription appel- found the written be lant’s statement true and correct. INV. AVILA: O.K. Number two is: The trial appellant’s court concluded that Any you statement make be may statement was not made the result of used as evidence in the ... cour threats, any promises, or coercion. against you. you court Do understand? you Yes? ... speak No have to so that Analysis I CHANOCUA: Yes understand. The second oral statement appellant’s Appel the focus of complaint. INV. AVILA: O.K. Number three is: lant correct that the record you shows right attorney have an have express no waiver his before, rights appears present you during to advise However, recording. law not does you being questioned. time are Do require that the ex recording reflect an you understand? press Etheridge rights. waiver I CHANOCUA: understand. (Tex.Crim.App. 903 S.W.2d four, INV. if you AVILA: Number can- 1994), denied, cert. 516 U.S. 116 S.Ct. an employ attorney you not an uh (1995). Appellant’s L.Ed.2d attorney you right ... ... have the remaining regarding contention the volun attorney appointed to have an so you depends upon tariness of his statement may you that he advise before or while facts that were the trial court resolved you questioned. you are Do under- against appellant’s position. After review stand? record, ing the we find that the evidence is Yes, I CHANOCUA: understand. support sufficient to the trial court’s factu five, you INV. ... AVILA: Number Although al rendition. intro appellant uh..you have the to terminate right evidence, court conflicting duced the trial interview time Do you say. found that evidence to credible. you understand? trial We almost total deference to a CHANOCUA: understand. facts, court’s resolution of the historical ” (All Thereafter, original). “... appel- turns on especially when that resolution lant’s statement was recorded on audio- credibility of witnesses. Guzman v. tape. (Tex.Crim.App. 955 S.W.2d 1997). At no time did ever indicate Points of error three four he speak lawyer wished to overruled.
13 hence, Con- violation of the Vienna no Vienna Convention C. Id. at 247. treaty was established. vention five, point appellant In of error case, appellant present In raised trial have contends that the court should written, suppress motion to his in his issue his under Arti suppressed oral statements confession, by trial court denied which 38.23 law enforcement officers cle because Moreover, there existed written order. by to give warnings required failed him appel- that uncontroverted evidence ample, Con the Vienna Convention. “The Vienna a citizen.9 And in fact Mexican lant was grants on Relations a vention Consular undisputed appellant evidence arrested, foreign national who has been custody during the oral interview custody right or into imprisoned taken 25, Further, April on 1996. conducted requires consulate and the ar contact his ap- undisputed evidence established inform resting government authorities to un- pellant his informed of right the individual of this ‘without de State, der the Vienna Convention. v. 998 lay.’” Maldonado S.W.2d (Tex.Crim.App.1999)(citing 246-247 find it address appropriate We Relations, on Vienna Convention Consular open left in Maldonado: now the issue 24, 1963, U.S.T., 36(l)(b), 21 April art. remedy for provide 38.23 Does Article (ratified 100-101, 595 U.N.T.S. 292 treaty? of the Vienna Convention violations 24,1969)). the United States on Nov. question, To we must decide answer this A Vienna Convention claim has been exclusionary 38.23’s rule whether Article previous before this Court on two raised 38.23(a) pro applies treaties. Article State, v. occasions. Ibarra 11 S.W.3d part: in relevant vides rejected a de- (Tex.Crim.App.1999), we or obtained an officer No evidence being procedurally fendant’s claim as de- any provi- person other violation of faulted, because defendant did not laws of the sions of the Constitution or hearing complain about the issue until a Texas, of or of Constitution State his motion for trial. new Id. 197-98. America, of of laws the United States Maldonado, we observed a violation against shall be admitted evidence treaty of the Vienna Convention “would any criminal case. accused on the trial of arguably fall under the in Article language “laws,” word key issue is whether the 38.23(a)” because states must adhere to statute, as treaties.10 used includes Supremacy treaties under Clause the cardinal begin with We the United States Constitution “and statutory in Texas: a construction rule them the same force and effect solely in accor interpreted is to be statute other law.” at 247 federal 998 S.W.2d lan added). plain of its meaning dance with the But (emphasis we did not language ambiguous guage, unless treaty whether the did fact determine re plain meaning leads to absurd or the language Article 38.23. fall within the v. Boykin sults. rejected the defendant’s claim because We 38.23, (Tex.Crim.App.1991). In Article the evidence did not establish national, placed in foreign a series with “Constitu- defendant was in fact “laws” its that a appellant 10. The State concedes in brief Avila told him before testified appellant accept appellant’s required he took statement We are not is a "law.” Further, concession, however, was a Mexican citizen. Avila testi- it con- such a because appellant’s primary language was fied that matter the construction of statute —a cerns speak Spanish could not and that ultimately determine for it- this Court must English. Appellant’s oral were statements Long 931 S.W.2d self. Spanish. pretrial motion to taken in At the (Tex.Crim.App.1996). suppress, appellant that he was also testified present- citizen. The State in fact a Mexican concerning ap- controverting ed no pellant’s citizenship. Supremacy tion.” The singular referring objects— Clause the Unit- noun plural ed States places Constitution also “laws” in to refer to several different types gov- (i.e. series other terms: constitution, ernmental commands and the Laws n treaties). statutes, Constitution, Supremacy Under
This *13 usage then, Clause constitutions and trea- United States which shall be in made “law” ties are but thereof; are “laws.” Article Pursuance and all Treaties made, plural 38.23 uses the made, countable “laws”—an or which shall be under the that provision indication the to States, refers stat- Authority of the United shall be general utes and not to in a “law” more supreme Land; the Law of the and the sense. in Judges every State shall be bound
thereby, any Thing in the Constitution
Dix
suggest
Professors
and Dawson
or Laws
of
State
the Contrary
that,
the
“Given
construction of ‘laws’ of
notwithstanding.
Texas, ‘laws’of
probably
the United States
Constitution,
VI,
United States
Article
George
means federal statutes.”
E. Dix
(also
2
Dawson,
Clause
known
“Supremacy
as the
and Robert 0.
TEXAS PRAC-
added).
Clause”)(emphasis
Suprema-
The
TICE: CRIMINAL PRACTICE AND
cy
(1995).
“constitution,” PROCEDURE,
Clause
§
indicates that
4.44
In their
“laws,”
view,
Texas,”
and “treaties” all
sepa-
constitute
of the state of
“[L]aws
as
rate items that
“supreme
turn the
that is
used Article 38.23 of the Code of
Procedure,
law the
series,
legal
of
land.” When
Criminal
is limited to
used
re-
then,
quirements
by
Legisla-
“laws”
appear
‘promulgated
would
to be
the
distinct
ture,’
hand,
§
i.e.
Id. at
In
“law,”
from treaties.
the
statutes.”
4.45.
the
On
other
of,
supplement, they
the
when
note
existence
but
overarching concept,
used as an
en-
on,
constitutions,
position
do not take a
the issue of
compasses
laws, and treaties.
treaty
whether a
constitutes a “law” under
Because “laws” and “Constitution” both
Dawson, §
Article
4.44
38.23. Dix
appear
38.23,
in Article
the narrower
(Supp.1999).
laws,
meaning of
as being distinct from
treaties, would
To
appear
apply.
hold
disciplinary
We have held that
rules do
otherwise would render the word “Consti- not
38.23,
constitute “laws” under Article
tution” redundant
in Article 38.23 because
may,
but that privileges
depending upon
constitution and a
both constitute
the
Compare
circumstances.
Pannell
usage
“law”
the broad
that
of
word. State,
666
S.W.2d
96
generally presume
every
“We
that
word
rule)
(Tex.Crim.App.1984)(disciplinary
a statute has
purpose
been used for a
Henderson v.
553-
962 S.W.2d
word,
clause,
phrase,
each
and sen-
denied,
554 (Tex.Crim.App.1997), cert.
tence
given
reasonably
should
effect
U.S.
S.Ct.
L.Ed.2d 357
possible.”
Hardy,
State v.
963 S.W.2d
(1998)(attorney-client
privilege).
That
520 (Tex.Crim.App.1997).
privilege
may
rules
“laws”
be considered
orthographic
statutory lineage.
The
difference between
due in
part
their
Henderson,
“laws” and
(privileges
“law” should also be noted.
at 553
Clause,
the
Supremacy
rulemaking power
“laws” used as a
derived from
given
plural
countable
that refers to
replace legislatively
statutes.
Court to
drafted
hand,
statutes);
Dawson,
by
§
On the other
“law”
used
see
the
also Dix and
4.45
Supremacy
as a
(Supp.1999).11
Clause
collective noun—a
rules)
Judge
reasoning
Holland’s
word
derived
or in the broad
to mean
sense
"supreme
"laws” includes treaties because treaties con-
law of
land.”
cannot
One
"supreme
Judge
law
stitute
of the land” is circu-
reach
conclusion
one
Holland’s
unless
question
presupposes
lar. The
is not what the
from
outset
Constitution
"laws”
"laws,”
law,”
"supreme
"laws” but whether
refers
means
38.23
38.23,
appears
very
attempting
term
in Article
is used in the
we are
to ascertain.
fact
(or statutorily-
Judge
reasoning that
Similarly,
narrow sense to mean statutes
Holland’s
Ar-
of
addition,
comprise all the functions
Papers, writ-
seem to
the Federalist
power
magistrate.
executive
ten
the framers of
United States
is, plainly,
treaties
neither
making
Constitution,
a clear
be-
draw
distinction
It
the other.
relates neither
one nor
legislative
enactments:
tween treaties
laws,
subsisting
nor
the execution of
add,
particular
I venture to
ones;
still
to the enaction
newof
power making
treaties
nature
the exertion of the common
less to
in that
peculiar propriety
indicates a
objects
Its
are CONTRACTS
strength.
Though
union.
several writers on
nations, which will have
foreign
subject
government place
power
law, but
derive it from
force of
authorities,
yet
in the class
executive
They are not
obligations
good
faith.
*14
evidently
arbitrary disposition;
this is
an
to
by
sovereign
rules
the
the
prescribed
opera-
if
its
carefully
for we attend
to
subject,
between sover-
agreements
but
tion,
partake
will
of
it
be found to
more
ques-
eign
sovereign.
power in
and
legislative
of
the
than
the executive
a distinct
tion seems
to
therefore
form
though it
not seem
character,
does
belong, properly,
to
department, and
strictly to
within the
of
fall
definition
legislative
to the
nor to the exec-
neither
either
them. The essence of
legisla-
of
utive.
laws, or,
authority is
in
tive
to enact
words,
Hamilton,
to
rules
the
THE FEDERALIST
prescribe
other
Alexander
(italics added,
PAPERS,
capitaliza-
regulation
society;
of
while the execu-
No. 75
laws,
agree-
employment
original).
the
of
in
Treaties are
tion
and
tion
the
strength,
sovereigns
reg-
common
this
rather than
the
either
ments between
defense,
subjects.12 If
sovereign’s
a
a
purpose or for the common
ulations of
Quintero,
applies
the El
tide 38.23
to Vienna
vio-
rather than the second.
Convention
Appeals
the
foreign
lations because
are entitled
Paso Court of
addressed whether
nationals
treaty
protections
justice
the
violation of
extradition
rises
the
of the state criminal
the
level
an abuse that “shocks
conscience”
system
Application
is
of
also circular.
of Article
Due
Clause
the Four-
under the
Process
of
exclusionary
38.23’s
rule to Vienna Conven-
441.
teenth Amendment. 761 S.W.2d at
protection
is
tion violations
"a
of the state
claim,
that
the
Paso court
system”
connection with
El
justice
only
criminal
treaties in
if
stated,
equivalent
are
"extradition treaties
particular,
general,
treaty in
in
and this
are
are, therefore,
They
despite
38.23,
their
statutes.
very
fact covered Article
we
fact
character,
political
international
not
su-
attempting
are
to ascertain.
preme
of
land." Id.
sen-
law this
The latter
stating
“supreme
treaty
a
is
tence
that
not
Neidecker,
Quoting
v.
Valentine U.S. ex rel.
isolation,
seem,
patently
in
be
law” would
100,
5,
(1936)
299 U.S.
5
S.Ct.
81 L.Ed.
false, given
wording
Supremacy
Quintero
(Tex.
In evaluating a statute with ambiguous
tries.
Judge
contends
the
Holland
that
language,
empowered
we are
“treaty
to look at the
important protection
is an
Tex-
to
object sought
by
to
attained
provi-
the
ans traveling in other nations. This State
in question
sion
same protections
consequences
and the
of a
should
extend the
for-
to
Judge
notification,
proper
Holland contends that we cannot
consular
the
counsel for
rely upon the
Department’s position
State
Department argued
let-
State
that
the Vienna
prepared
ter because it
in the
course of
require
convention
the
“does
domestic
reasons,
litigation.
disagree.
For several
we
parties
courts of State
to take
actions in
First,
Department’s position
the State
letter
proceedings,
give
criminal
either to
effect to
response
inquiry
was submitted in
to an
from
provisions
remedy
alleged
its
their
vio-
or to
Circuit,
Department
the First
the
not because
Li,
(quoting
lation.’’
at 64
Written Observa-
attempting mitigate
consequences
the
America,
tions of
Re-
the United States of
Li,
Second,
a mistake.
at 63.
the State De-
OC-16,
1,
quest
Opinion,
Advisory
June
partment
prosecutorial
agency.
is not a
10,
(corrected
1998)).
June
the
And to
allegation
partisan
While an
aof
motive
Department’s knowledge,
State
the United
might have
against
some
when leveled
force
foreign
States
asked
has never
to
court
parties
litigation,
one
to
the State De-
consider a
failure
consular notification
partment
apparent
has no
motive to take one
Li,
during
on a criminal
deliberation
case.
Third,
side or the other in a criminal case.
at 64-66.
perhaps
important,
position
most
the
Moreover,
Department’s
if the
even
State
by
Department
taken
ap-
State
does not
opinion
suspect
Judge
as
as
were
Holland
pear to be new.
"In
letter from a
claims,
opinion
that
would be
some
entitled to
Department legal
foreign
adviser informed a
is,
best,
weight
treaty
ambiguous
for a
at
national that
the U.S. authorities are
'[w]hile
concerning
appropriateness
applying
required
obligations
comply
[of
exclusionary
an
36],
sanction. Lombera-Camor-
Vienna Convention Article
failure to do
linga,
point,
at 887-88 And more to
so would have no effect
[his]
conviction or
” Li,
(bracketed
Department's position
State
on the matter
incarceration.’
at 64
materi-
Li).
seriously
Judge
attempt
undercuts
Holland’s
sought
al
when Mexico
an
rely
pronouncements
advisory opinion
upon
other
from
Inter-American
support
Rights
agency
imposing
Court of Human
same
ex-
availability
about the
failing
clusionary
of criminal
remedy.
remedies for
in the United
may
find themselves
expect
we
well
eign nationals
Texas that
find,
they
now,
to our citizens
If we
Supreme
be extended
when
Court.
States
added).
(emphasis
But this
abroad”
con-
treaty must be
that the Vienna Convention
foreign
en-
assumes
countries
tention
exclusionary
rule
through
enforced
through their
force the Vienna Convention
38.23,
may soon
Texas
provided
They do
exclusionary rules.
not:
own
jurisdiction in
only
find
to be the
itself
Department
out
points
“The
also
State
treaty
enforces
entire world
signatories
that no other
to the Vienna
exclusionary rule
of an
the use
through
suppression
permitted
Convention have
such a
It is
see how
difficult
sanction.15
circumstances,
two
under similar
to en-
anything
do
state of affairs would
Australia) have
re-
(Italy
specifically
of Texans abroad.
protection
sure the
888;
Lomberctr-Camorlinga, at
jected it.”
upon the Vienna Convention
Relying
Li, at 64-6614
refusal
see also
Our
Court of
preamble,
Supreme
Treaty’s
exclusionary rule for Vienna
enforce an
no
Virginia has held that the
creates
actually pro-
Convention violations would
rights”
harmony
interpretation of this
individual
but
“legally
mote
enforceable
agreement.
international
Id.
notice
furnished
“merely deals with
to be
foreign
of a
state.”
post
consular
And,
First
opinions,
in en banc
Commonwealth,
Kasi
Va.
recently
Ninth
decided
exclu-
Circuits
—
denied,
(1998),
cert.
U.S.
S.E.2d
inappropriate reme-
sion of evidence is an
-,
14.
to the
that enforce-
court
extent
Lombera-Camorlinga,
overturned
ment of the Vienna Convention is contended
which was
necessary
right
protect
by
opinion
to be
a defendant’s
Ninth
en banc
in that
Circuit’s
rights guaranteed by
Reyes,
(relying
to counsel and other
740 A.2d
12-13
See
at
case.
Miranda, such a contention is also flawed.
upon
panel opinion
Ninth Circuit
United
Treaty
The
Vienna Convention
drafted
Camorlinga,
1242-43
States v.
170 F.3d
decided,
years
withdrawn,
(9th
three
before Miranda was
and
(9th Cir.),
Cir.
F.3d 1177
provide
most countries do not
the kinds of
1999)); Lombera-Camorlinga, 206 F.3d
protections during police interrogation that
(2000)(overtuming panel opinion due
883-84
by
are mandated Miranda. Lombera-Camor-
addition,
conclusion).
contrary
the De-
linga, at 885-86.
upon two other Ninth
laware court relied
involving
regulation
an
en-
cases
INS
Circuit
Judge
responds by pointing
15.
Holland
to De-
implement the Vienna Convention.
acted to
jurisdiction
“at
laware as
least one other
that
(discussing
Reyes,
10-11
United
740 A.2d at
already
has
the Vienna Convention
enforced
(9th
Rangel-Gonzales,
F.2d 529
States
through exclusionary
jurisprudence.”
rule
1980) and
States v. Calderon—Medi-
Cir.
United
point
jurisdic-
But
is
are no
our
there
na,
(9th Cir.1979)). But the
be six, appellant of error point dependent state law for upon should deny contends that trial court erred implementation.18 its on voluntari ing requested instruction The effect trial, appellant requested ness. At consequences are ultimately of its violation instruction, the trial court following which questions only federal United denied: Supreme finally and de States Court can law, a con- You’re instructed under finitively ordinarily think answer. We or admission of defendant fession legislatures upon state as free to confer jail was in or while the defendant made expansive protection more than individuals or in the place other of confinement government. that conferred the federal custody of an officer shall be admissible legislation conferring But more remedies if it appears same treaty actually than a confers could con made, voluntarily without freely and ceivably Supremacy if violate Clause persuasion. compulsion legislation contrary were found to be language purpose Now, you find the evidence or from treaty, because international treaties are time you a reasonable doubt at the exclusively In the pres federal matters. such of the statement of defendant case, likely—although ent it would seem Avila, the there to Officer statement foregone the Legis not a conclusion—that ill, was under medication defendant was *18 for impose lature could remedies violations condition, a or reduced to otherwise of the Vienna Convention that are addi as impairment and mental such physical by the contemplated tion to remedies trea admission, if any, not such render" ty violating Supremacy itself without voluntary, you com- then will wholly But, statutory when faced with Clause. as evi- pletely disregard such admission that the ambiguity, should not assume we any purpose. for dence remedy Legislature intended certain any purpose you Nor consider will of an international extend violations police as obtained evidence treaty when not at clear that the it is all result thereof. remedy. treaty contemplates such a At en- least, legally contends that he very Appellant found reason to we have titled instruction. from to the exclude the Vienna Convention anee, ap- exclusionary rule whether federal Supreme If the Court declines address violations, future, may plies Convention but be called to Vienna the issue the near we decide, today. Supreme guid- an issue before us upon to without Court added). We jury observe that charge (emphasis ble argument An given equivalent contained an state- supporting authority fails to cite presents ment of the paragraph first requested by nothing State, for review. McFarland v. appellant: 482, 928 S.W.2d 512 (Tex.Crim.App.1996),
A
denied,
statement of an accused may
1119,
966,
be used
cert.
519 U.S.
117 S.Ct.
against
evidence
him if it appears that
(1997);
with a
statement of
Further,
the law re-
despite
appellant’s
garding the requirements for the admis- protestations,
requested
his
instruction
sibility of a defendant’s statement. The
impermissible
did constitute an
comment
likely rejoinder
State’s
charge
on
weight
in
evidence. His
given
as
adequately protected appel-
struction
focused
illness and medication
incorrect,
lant’s rights will be
as no-
factors that may
as
render his confession
charge
where
given,
jury
is the
involuntary.
a seemingly
“Even
neutral
admonished that before it can consider
particular type
instruction about a
of evi
appellant’s statement it first had to find
dence
an impermissible
constitutes
com
wholly
that it was
voluntary.
weight
ment on the
of the evidence in
violation of Article 36.14
Appellant
because such
legal authority
cites no
for his
singles
particular piece
instruction
out a
assertion that his
required
instruction is
special
by law. Nor
attention.”
explain why
does he
a state-
Matamo
(Tex.Crim.
ment is
ros v.
21
denied,
977,
swered,
you’re going to
‘yes,’
of them
Crim.App.1995), cert.
516 U.S.
both
taking
Gary Sterling
(1995)(spe- participate
408
with
116 S.Ct.
L.Ed.2d
We
of
another
Id. at 119.
held
singling
cial instruction
out the issue
life.”
alleged
the
the
it
determining
argument,
vol-
the
insofar as
mental retardation
confession).
murder
Point of
would commit another
untariness of a
error
defendant
future,
a reasonable de
constituted
six is overruled.
Id. at 120-121.
from the evidence.
duction
Argument
V.
(Tex.
State,
v.
something. you prosecutor If contends that the ar- will it’s not gued just matters the two of them. outside the record. He con- Even the kill ing of tends that security guard, absolutely pre- no evidence there were other sented that people appellant the car. was a There were member of a four people in that gang. prosecutor’s argument, car. There The were five howev- people er, in the bank robbery. Three to was not formal referring to member- four people at the ship Luviano house. in a gang. prosecutor And clearly there is no driving explained evidence who was by “gang” what he meant —that car over to Cruz Saucedo’s house. But appellant formed loose association with crimes, based on way he does others commit Perhaps appel- crimes. suggest you that there was at least lant is contending prosecution person one other at Cruz Saucedo’s used “gang” persuade its definition of apartment. He people associates with jury appel- to draw an inference that in a gang. lant would become a formal member of a MR. prison gang. prose- VILLARREAL Even that were the [defense counsel]: Object. intent, There is no cutor’s evidence that he is such an inference is a rea- member of gang, Your Honor. sonable deduction from the evidence. improper. That’s Argument consistently outside the That appellant committed record. in groups crimes is some evidence from occupants hostage, addition to the circumstances of the and that he robbed a bank offense, and, during flight, the evidence at trial included evi- hid behind the comer of a appellant dence participated building gun firing position the kill- with his wait- (Cruz Saucedo) ing person of another ing police chasing in that to ambush a him officer home, person’s (appellant spotted position by invaded anoth- in this offi- (Luviano household) er home police helicopter). and held the cers in a *21 ap- him, would advised to consul jury appellant infer the which the could talk to until police to the gang pellant a refuse pris- affiliate himself with would arranged for him. attorney prosecutor’s appel- The reference on. part “gang” of a being lant’s activities as Article majority concludes that The word, and the use was a correct use of the mech- proper is enforcement 38.23 not the that word to a connection in the of draw con- support this anism for of treaties. mind informal jury’s appellant’s between clusion, “ because majority states that the gang association formal activities is in a series with ‘Constitu- placed ‘laws’ designed device legitimate rhetorical 38.23, while “laws” tion’” Article logical the convey the connection between with “Constitution” placed a series eight of two. Point error overruled. the Supremacy of “treaties” in the Clause judgment of the trial court is af- The Constitution, in- United we should States firmed. omis- Legislature, by fer that the Texas sion, did mean to include treaties not HOLLAND, J., concurring filed in- scope within of Article 38.23. This the MEYERS, in which PRICE and opinion “treaty” that a should terpretation means JOHNSON, JJ., joined. a “law” of purposes not be considered inter- disagree Article I with this 38.23. JOHNSON, J., concurring filed a pretation. I would instead conclude opinion. permissible Article enforcement 38.23 is HOLLAND, J., a concurring delivered violations of the Vienna mechanism for J., MEYERS, PRICE, J., opinion in which Convention.1 J., JOHNSON, joined. of the pertinent section of Article 36 join majority’s opinion points on all states, Vienna Convention except point of error of error five. With exercise facilitating 1. With a view to five, respect point error I would hold of nation- relating of functions consular Texas 38.28 of the Code of sending of als State: permissible Criminal Procedure is en- Ar- forcement mechanism for violations
ticle 36 of Convention on Con- Vienna (b) sular Relations. the facts of this au- requests, competent Under he so case, shall, however, particular I would conclude receiving State thorities of inform appellant post failed to demonstrate a delay, without consular if, causal connection between Vienna Con- within its consu- sending of the State district, violation oral vention and the statements lar a national that State taken the officers. or to prison arrested or committed trial or custody pending is detained five, point error claims Any communication ad- any manner. trial have suppressed that the court should post by per- consular dressed to the his oral statements under Article 38.23 arrested, prison, custody son or de- proper warnings he was given because by the also be tention shall forwarded by Article required Vienna The said delay. said without authorities specifically asserts Appellant Convention. person inform con- authorities shall right of his that he was not notified delay under cerned his without before contact Mexican Consulate sub-paragraph. police. At the making a to the statement Relations, on Consular pre- Vienna Convention hearing suppress, on motion to he 36(l)(b), 24, 1963, that, art. 21 U.S.T. April a consul talked had sented Brief, given force Reply United States to same the State concedes that 1. In its scope Hanson v. Town treaty effect as other law. is a “law” within the of Article Cir.1982).” Mound, (5 F.2d 497 th Flower is a law of the 38.23. It states that "[a] *22 24
100-101,
(ratified
261,
595
by
U.N.T.S.
look at how other courts have interpreted
1969).
24,
the United States on Nov.
This
Robertson,
treaty
Edye
what a
is.
v.
recognized
Court has
that this section of
580,
247,
112 U.S.
5 S.Ct.
nationals”). Finally, international courts Secretary of State Madeline K. Albright, have determined that Article 36 of the Q Remarks and & A at Howard Universi- Vienna Convention “endows a detained 14, 1998, (re- ty, April Washington, D.C. foreign national with individual by Spokesman, leased the Office of the are the counterpart to the host State’s State). Department U.S. If the United Op. correlative duties.” Inter-Am. Ct. States does not provide mechanism for H.R., OC-16/99, (Oct. 1, 1999); see also Convention, enforcing the why Vienna Case Concerning the Vienna Convention signatories should other provi- enforce the U.S.), on (Paraguay Consular Relations sions treaty? treaty is an 1998 I.C.J. 248 (referring Paraguayan to a important protection to traveling Texans “rights” provisions national’s under the of other nations. This State should extend Convention). Article 36 of the Vienna protections foreign the same to nationals expect Texas that we to be extended Since Article 36 of the Vienna Conven- our they citizens when are abroad. personal rights tion confers foreign na- tionals, treaty is to be considered a past, Depart- the United States “law,” equal to a statute and enforceable in ment of State has been involved individ- courts of this compelling State. There are ual cases where the Vienna Convention has policy reaching reasons for this conclusion. not scrupulously been followed in this Secretary Albright of the State Madeline country. As an example, Virginia capital explained speech at Howard Universi- Angel defendant Breard was not informed ty, right of his to contact his consulate from part sys-
[W]e are a of an Paraguay. international subsequently He was sen- tem in which it important respect rape capital tenced death for the Breard, the various rules and conventions and Ruth murder of Dickie. See laws that have created to been make the U.S. at 1352. The S.Ct. State system among work.... And those Department Department and the of Jus- ways foreign rules ... there are together tice worked to determine whether trial, nationals country, are treated another fair prejudice. Breard had a free of treated, diplomats how are noting Supreme how deal While we Court Gov- they with issues when have committed a Virginia stay ernor of not required were execution, crime.... groups jointly the two wrote preamble 4. While the language of the Vienna Conven- this as evidence that the does purpose privi- convey rights. tion states that "the spe- of such individual The more leges by language and immunities the Vien- [delineated cific of Article 36 of Vienna expressly foreign na is not to benefit individuals Convention] Convention refers to a na- performance "rights but to ensure the efficient tional's under sub-paragraph.” [the] Relations, by posts functions consular on behalf of their Vienna Convention on Consular States,” 36(l)(b). respective disingenuous it is to use art mayors and governors and Governor, stay requesting that he work across this exe- officials Breard was nevertheless law enforcement execution. notifica- Rubin, that consular Daily P. Press to insure country cuted. James See #Jd, 1-2, and hon- are understood page April obligations tion Briefing (released Al- Secretary Department regard, the U.S. In that ored. State). to all the 50 states has sent bright document, Notifi- of this “Consular copy De- daily press briefing, In a State Access,” lengthy which is cation and commented, partment booklet, require- explaining what wrote to Secretary Albright Madeline cases, because, many ments Virginia] asking that Governor of [the happen. doesn’t stay the execution of Mr. the Governor de- Breard for murder. The Governor James id. The booklet referred See take the execution to cided allow states that preceding passage Rubin night. In our place as scheduled last in this booklet should instructions “[t]he system, that was his decision. federal federal, state, and local by all followed no in our minds that Mr. There is doubt officials, law enforce- whether government ” guilty of the crimes for Breard was other,.... ment, Consular judicial, *25 sentenced; however, which he was he Access, De- Part Two: Notification Paraguay’s not told that consulate of on the Treatment tailed Instructions by the could be notified of his arrest (visited January Foreign Nationals That concerned the Vienna Convention. 2000) <http://state.gov/www/global/le- Department of State and his case was gaLaffairs/consularnotif- given careful attention here. The booklet also ication/part2.html>. is that the Vienna Convention “bind-
states federal, government state and local ing on show, however, This does how case to they pertain extent that officials to the federal, it important is for state competence.” within such officials’ matters in local law enforcement officials the the terms of the Vienna See id. Under United States to be aware of the U.S. Convention, foreign national must “the obligation notify foreign to nationals of right consular told notification of of ” right their to consular access. This is of (empha- in all cases. See id. and access here and great importance foreigners to Furthermore, original). in United sis particular it of to the Secre- is concern requires Department Justice States tary for Americans overseas. foreign in which a national every case “[i]n arrested, in- should, States, arresting officer shall see is
We United that his consul foreign form the national foreigners to it that here receive of his arrest unless he does expect and de- will be advised same treatment that we 28 given.” notification to be That is not wish such mand for Americans overseas. 50.5(1).5 § why will continue C.F.R. Department the State Court, “position” taken Supreme this compelling comments 5. In contrast to the unworthy of defer- Albright Department State is by Secretary made of State Madeline Supreme Court has stated ence. The policies implemented by the State and the Justice, give deference "declin[e] courts should Department Department and the interpretation agency of a statute an counsel’s markedly Department differ- the State takes agency no itself has articulated where the litiga- faced with adversarial ent stance when George- position question.” Bowen v. on the Court of Human tion. In the Inter-American 204, 212, University Hospital, 488 U.S. suit, town Depart- Rights, party to the the State (1988). L.Ed.2d 493 109 S.Ct. 102 suggest argued nothing that "there is ment Depart- During litigation, State inval- recent consular notification that failure Vienna Convention in jus- ment discussed the the convictions of a state criminal idates H.R., conjunction litiga- solely Op. letter written in system." Inter-Am. Ct. OC- tice 16/99, (Oct. 1999). Federal according pending in the First Circuit But tion Therefore, clearly The Vienna itself the manner in Convention 5.Ct. which the Vienna Convention enforced it states is to be enforced accor- largely in other irrelevant countries dance with the laws of Texas and of the State, as this the United States and Texas Paragraph United States. 2 of Article 36 apply are called upon to states, of the Vienna Convention “A conformity foreign with our oum laws. rights 2. The to in paragraph referred prosecuted national arrested and 1 of shall be exercised in to the protections United States is entitled conformity regula- with the laws and procedures of our Constitution and the receiving subject tions justice A system. foreign our criminal however, proviso, the said laws against national right whose to counsel or regulations must full enable effect violated in this coun- self-incrimination is given purposes to be to the for which try suppression is entitled to of evidence accorded the Article under remedy even such a violation has no are intended. another country.” See Lomberar-Camor- Relations, (Boochever, J., linga, Vienna Convention on Consular at 888-89 dissent- 86(2) added). Indeed, ing).6 art. (emphasis
Supreme
part
provi-
Court relied in
on this
case,
More
to the instant
importantly
reaching
sion in
its
in Breard
however,
decision
foreign
national arrested
Breard,
pro-
Greene. See
entitled to the
prosecuted
U.S.
Texas is
Li,
Appeals.
help
they
specifically
Court of
See
ob-
United States v.
tailored
Cir.,-
banc,
(1st
2000).
pending
F.3d
at 63-64
en
tain a favorable outcome in a
letter,
Department
controversy
agency
In this
the State
offered
in which the
is in-
"position
suppression
Although
certainly
of evidence
volved.
we must
con-
inappropriate remedy
agency’s
persuasive
for a
sider the
force of the
*26
violation
provision
argument,
just
arguments
this
of the Vienna Convention.”
it is
that. The
litigation ought
Lombera-Camorlinga,
by
agency in
United States v.
206
advanced
an
(9 Cir.,
banc, 2000).
weight.
F.3d
at 887-88
th
en
to rise or fall on their own
J.,
(Thomas,
dissenting).
Lombera-Camorlinga,
Depart-
In
the State
Id. at 895-96
It is
granted
"position”
only
light
ment’s
minimal
in this
that this
should consider
Court
by
previ-
Circuit.
Department’s "position.”
deference
the Ninth
See Lombera-
the
In
State
Camorlinga,
(stating
887-88
"it is
true
ous suits and in the letter cited in Lombera-
Li,
weight
to
to
Department
that courts tend
less
an
Camorlinga
the State
position adopted
executive branch
suppression
apparently did
of
advocate that
here,
litigation,
course of
as is the case
than
remedy
inappropriate
for vio-
evidence is an
interpretation
diplomatic
to an
made in
rela-
lations of the Vienna Convention. But in ar-
Moreover,
countries.”).
tions with other
the
"position,”
guing
importance
of this
placed
Lombera-Camorlinga
acknowledge
dissent in
this
majority
that the State
fails to
Department
light by
State
letter in the correct
agency
Department,
executive
of the
as an
noting
majority goes beyond
party
"[t]he
government, was a
United States
treaty language
rely heavily
a
major-
letter
litigation
cited
in the cases
Department....
from the State
As the ma-
ity. Considering
Department’s
the State
however,
jority acknowledges,
that letter is
"position”
consistently
in
been asserted
has
deference,
prepared
entitled to little
as it was
litigation,
this
adversarial
the course of
litigation.
in the course of
We should defer
give primary
Court should
consideration
post-hoc
even less to the
rationalization of an
important policy reasons for enforc-
both the
Texas,
treaty
agency charged with enforcement of a
ar-
ing the
in
Vienna Convention
provision
so
when its enforcement has been
by Secretary
Madeline Al-
ticulated
of State
J.,
(Boochever,
notably lax.” Id. at 890
dis-
language
bright,
the actual
contained in
senting).
treaty.
Convention
Vienna
Lombera-Camorlinga
The dissent in
further
dissenting
explained
majority and two
6. See both the
[ajdministrative agency
opinions Lombera-Camorlinga for a discus-
constructions of
statutes,
exclusionary
federal
rule
governing
or in this case a trea-
sion on whether the
adversary
apply
ty, performed
sys-
Convention violations.
outside the
should
Vienna
banc,
Cir.,
2000).
However,
(9th
Ap-
worthy of
so obtained. added.) is, That under (Emphasis parte Dwain PADRON. Ex statute, the plain language of the exclusion there is only of evidence is mandated when No. 01-99-00263-CR. legal a causal between the connection Texas, Appeals Court obtaining violation and the constitutional (1st Dist.). Houston the evidence.1 case, testimony In the instant there was 20, 2000. Jan. suppression hearing upon at the 2,May 2000. Rehearing Overruled appellant made two occasions on which police, given to the he was his statements he
statutorily required warnings, and that
waiving
that he was
his
indicated
test,
See,
State,
when he
breath
e.g.,
S.W.2d 242
before he refused
Lane
(trial
(Tex.App.
pet.)
warnings,
court
his
sign
no
he reaffirmed
did
written
—Austin
admitting
results of breath test
decision);
did not err in
Stockton v.
earlier
orally
warnings
defendant
received
where
(Tex.App.
no
—Austin
test,
concerning
but did not receive
breath
high
(although police
enrolled in
pet.)
officer
warnings
writing,
in violation of
same
Code, defen-
school in violation of Education
Code;
Transportation
was no evidence
there
po-
her belief that
dant did not indicate that
warnings
not understand
or that
that he did
high school student induced
lice officer was
writing
had
failure to receive information
officer;
methamphetamine to the
to sell
her
impact
breath
on his decision
take
therefore, nothing in record indicated that
(Tex.
test); Jessup v.