Opinion
No. 05-07-01557-CR
Opinion issued April 28, 2009. DO NOT PUBLISH Tex. R. App. P. 47.
On Appeal from the 203rd Judicial District Court, Dallas County, Texas, Trial Court Cause No. F07-00813-P.
Before Justices MOSELEY, RICHTER, and FRANCIS.
OPINION
A jury convicted Jose Alberto Felix of the capital murder of Dallas restaurateur Oscar Sanchez, Jr., and the trial court imposed an automatic life sentence. Appellant brings twenty issues in which he challenges various evidentiary rulings by the trial court. We affirm. On January 18, 2005, Oscar and his mother, Laura Sanchez, were to meet with a consultant regarding the opening of a new restaurant; the Sanchez family owned several restaurants in Dallas. That morning, Oscar was driving in the area of Winnetka and Canty streets, near his home, talking on the cell phone to his mother when his car was hit from behind. Oscar told his mother what happened, and she then heard Oscar say, "Hi Richie" or "Hi Lichey" before the phone went dead. Mrs. Sanchez tried to call her son back, but he did not answer his phone. Worried that something was wrong, Mrs. Sanchez immediately drove to the area and found her son's car in the middle of the road, still running, with the driver's door ajar. Thinking her son may have walked home, she went to his house to look for him, but no one was home. When she returned to the scene, she found a police officer standing near the car. Mrs. Sanchez explained what happened, and the officer asked if she knew anyone named "Richie" or "Lichey." Mrs. Sanchez said she had a former employee named "Richie" but believed he had left the country. The officer had Mrs. Sanchez call the family restaurant to get information about "Richie." While on her phone trying to get the information, she received a call from Oscar, who told her he had been kidnapped and his kidnappers wanted "a lot of money." Oscar also warned her not to call the police, because "their people is — are watching your people." When Mrs. Sanchez told her son the police were already at the scene, the phone went dead. Minutes later, Mrs. Sanchez received a second call; the caller ID showed "unknown." The caller's voice had been mechanically altered and sounded like a "robot." The person told Mrs. Sanchez that he had Oscar, and if she valued his life, she would pay him $3 million. As more police officers arrived on the scene, Mrs. Sanchez received another call, again from the "unknown" caller. The caller, in a mechanically altered voice, asked if she understood his instructions, and Mrs. Sanchez told him it was impossible to get that kind of money so quickly. The police took Mrs. Sanchez to the police station where she continued to receive calls over the course of the next several hours from the man with the mechanically altered voice. The calls were taped and later played for the jury. At the instructions of the police, Mrs. Sanchez tried to delay the kidnappers to give the police more time to identify them and also pretended to get the money and drive to a "drop" location. The kidnappers stopped calling after midnight. In the meantime, Dallas police and the FBI were investigating the kidnapping. The FBI determined the ransom calls were coming from a pre-paid cell phone bought by appellant, who lived at 302 Royal in Duncanville. Additionally, the Sanchez family pulled the employment file of "Richie Lopez" and learned that his real name was Edgar Acevedo and that he also lived at 302 Royal. The police obtained a warrant on the house and set up surveillance at about 6 p.m. Police planned to execute the warrant after first attempting a fake money drop at a location in Arlington. During the surveillance, no activity occurred at the house. When no one showed up at the drop site by 3 a.m., the SWAT team executed the warrant on the house. Once inside, the officers found the back bedroom in disarray, where there was a "tremendous amount of blood' and it appeared there had been a "very violent struggle." Among other things, police found a ski mask, pieces of duct tape, a spent bullet, two cartridge cases, and two statuettes, one broken into pieces. On the unbroken statuette, officers discovered a palm print in what appeared to be blood. The mattress and mattress cover were bloody, and blood was on the blinds. No one was in the house. Dallas police obtained arrest warrants for appellant and Acevedo. By tracking credit card usage, police determined the two were in Chicago. Further investigation showed the pair had purchased airline tickets to Mexico. Dallas police contacted the Chicago Police Department, and on January 23, 2005, Chicago police arrested appellant while he was standing in an airport ticket line. (Acevedo had flown out a day earlier.) Appellant had in his possession the cell phone used to make the ransom calls and a voice alternator. Dallas detectives flew to Chicago that day and talked to appellant. Appellant told them he was at home at 302 Royal when Acevedo and two men came in — one wearing a ski mask and the other with a bag over his head. The men went to Acevedo's bedroom. At some point, appellant said he heard a struggle in the bedroom and two gunshots. He looked in the room and saw the man whose head had been covered with a bag had been shot and was lying on the bed. Appellant told police "they" covered the man with some type of sheet, carried him out to the garage, put him in the bed of appellant's truck, and covered him up with trash. Appellant, accompanied by Acevedo and the ski-masked man, drove the truck to a field off Interstate 20, where Acevedo and the other man took the body away and returned a short time later. Afterwards, appellant said he dropped the other man off at a convenience store, and he and Acevedo spent the night in a hotel. The next day, appellant and Acevedo left for Chicago, where appellant sold his truck. While talking to police, appellant would not answer questions about who moved the body to the garage, who moved the body out of the truck, and whether or not he had gone into the bedroom where Oscar was killed. He denied knowing about any ransom demands and offered no explanation as to why his cell phone was used for the ransom calls. He did not admit to "doing anything" and said he did not know what was going on. Moreover, the evidence indicated appellant suggested to police that he was a kidnapping victim who acted out of fear that Acevedo would hurt his family. Using information supplied by appellant, police found a trash pile off I-20 with items stained with Oscar's blood and, after expanding their search, found Oscar's body. An autopsy revealed Oscar suffered a gunshot wound and nineteen lacerations to his head, abrasions and scrapes on his face, broken fingers, and several visible post-mortem injuries. The medical examiner concluded both the gunshot wound and multiple blunt-force injuries to his head were lethal. Additionally, he said the two statuettes taken from the crime scene could have caused the fatal blunt-force injuries. Appellant presented a duress defense, primarily through the testimony of Dale Jameton, who was awaiting trial on two capital murder charges and had several prior convictions for burglary and drug-related offenses. Jameton, who claimed to be the second-highest ranking member of the Aryan Brothers of Texas, testified he met Acevedo in jail. Jameton said Acevedo told him appellant was standing in the way of Acevedo's freedom and wanted Jameton to kill him. Jameton wanted to know the details of their crime. According to Jameton, Acevedo and a member of the Sanchez family devised the kidnapping scheme. On the day Oscar was taken, Jameton said Acevedo pretended to leave the house he shared with appellant and then hit appellant on the head, blindfolded him, tied him up, and put him in a room. After Acevedo and his accomplice kidnapped Oscar, they took him to appellant's house and tied him up. Jameton said Oscar tried to get away, leading to a struggle with Acevedo, who hit him with a pistol and shot him. According to Jameton, Acevedo then got appellant from another room and forced him at gunpoint to move the body and clean up the room where Oscar was killed. Jameton said Acevedo forced appellant to go to Chicago, sell his truck, and threatened to kill his family if he did not meet him in Mexico. Although Jameton agreed to kill appellant, he said he "just didn't do it" and was then moved to another area of the jail. That transfer placed Jameton in the area with appellant: Jameton and appellant were housed in the same area of the jail for eleven months prior to the trial date. After hearing the evidence, the jury rejected appellant's duress defense and convicted him of capital murder. In issues one through three, appellant contends the trial court erred in allowing the State to call a defense expert to testify about DNA test results on a statuette found at the scene of the crime. Appellant argues the expert had not been formally designated as a testifying expert and, as a consulting expert only, his conclusions were protected by the work product privilege. The facts relevant to this issue are as follows. The police removed two statuettes from the crime scene. One of the statuettes, exhibit 121, was broken into several pieces-each stained with blood-and subsequent testing showed that the blood belonged to Oscar. On the second statuette, exhibit 124, police recovered appellant's palm print. In his opening statement, the prosecutor told the jury the palm print was in Oscar's blood. During trial, the prosecutor realized for the first time that the blood-like material on exhibit 124 had not been tested because the police did not want to risk losing details of the print. Over a lunch recess, the prosecutor brought in an analyst from the Southwest Institute of Forensic Sciences to conduct a presumptive blood test on the item, which had already been admitted into evidence, without notifying either the defense or the trial court. The test was positive for blood. Defense counsel complained to the trial court, but he specifically did not argue bad faith on the part of the prosecution, saying instead the prosecutor had "good intentions." After a lengthy hearing, the defense asked that DNA testing be conducted on the presumed blood. The trial court agreed and approved SWIFS and an independent laboratory, Cellmark, to conduct the tests. Testimony at trial was delayed while awaiting the results. Several days later, after the results were complete, a second hearing was held outside the presence of the jury. At this hearing, Dr. Timothy Sliter, the SWIFS technical manager of DNA testing, testified he had taken five swabs from exhibit 124-one each from the ear, nose, and base of the statuette and two from an area adjacent to the palm print. He cut each swab in half, kept one half, and sent the other half to Cellmark. Using standard protocol to test the items, Dr. Sliter testified he could not detect any genetic markers in the individual swabs or even perform confirmatory blood testing because the amount of material was insufficient. However, Dr. Sliter testified he then varied from standard protocol and pooled the two samples taken from the area near the palm print. After testing the pooled samples, he found genetic markers consistent with Oscar's DNA profile with a match ratio of one in 876 persons. Dr. Sliter testified the pooling method was a modified procedure not approved by SWIFS. After Dr. Sliter testified, the State argued "manifest necessity" entitled it to the results of Cellmark's DNA testing and sought to call the defense's expert, Dr. Rick Staub, Cellmark's laboratory director and senior manager of forensics. In response, the defense argued Dr. Staub was a consulting expert whose results were protected by the attorney work-product privilege. The trial court asked defense counsel to "[e]xplain to me again why you wanted a — an independent lab to test swabs." Counsel said he wanted an expert "to test the same swabs to make sure that . . . if Dr. Sliter was going to come back here and testify that that — that that blood matched the DNA profile of Oscar Sanchez, we wanted a [d]efense expert who would be able to point to us and say, well, you know, that's accurate, or, it's not accurate. And if it was not accurate, then we would have rebutting testimony. That's not necessary because Dr. Sliter's test results are consistent with — with not having any DNA profile of Oscar Sanchez on the statuette. Our expert remains a consulting expert." After hearing further arguments, the trial court made an oral finding that Dr. Staub would have been called as a witness had the defense disagreed with the findings of the State's DNA expert and then concluded Dr. Staub was a testifying expert whose findings were not covered by the work product privilege. The trial court ordered the State not to allude to or mention that Dr. Staub was hired on behalf of the defense to test certain items in the case and ordered that any information alluding to such a fact be redacted from the report. Additionally, the court ordered the State was not permitted to go into any confidential communication between Dr. Staub and defense counsel or any notes or writings Dr. Staub made concerning his correspondence with defense counsel or the court. Finally, the trial court ruled the State was "strictly limited to the testing procedures and results of the test" and did not allow the State an opportunity to talk to Dr. Staub before calling him as a witness. Dr. Staub ultimately testified before the jury that a partial DNA profile consistent with Oscar's DNA profile was found after combining two of the five swabs submitted by Dr. Sliter and the probability of an unrelated person having the same DNA profile was one in 1.783 billion within the Southwest Hispanic population. After Dr. Staub testified, Dr. Sliter, the State's expert, testified the material on the statuette was presumptively blood, but he did not have enough material for confirmation. Additionally, he was not able to detect any genetic markers on his half of the five samples using standard techniques. The trial court sustained the objection to any testimony regarding the SWIFS-unapproved testing of the pooled samples. Appellant argues the trial court committed reversible error in allowing the evidence because Dr. Staub had not been formally designated as a testifying expert and therefore his report was protected work product. He argues the trial court's ruling violated his right to effective assistance of counsel and due process. We need not decide whether the trial court erred in ruling Dr. Staub was a testifying expert whose findings were not protected. Even if we concluded Dr. Staub's finding that the statuette contained Oscar's DNA was protected work product, admission of the evidence was not harmful in this case. Our analysis of harm is determined by whether the error is constitutional or nonconstitutional. If the error is constitutional, we apply rule 44.2(a) and reverse unless we determine beyond a reasonable doubt the error did not contribute to appellant's conviction or punishment. Tex. R. App. P. 44.2(a). Otherwise, we apply rule 44.2(b) and disregard the error if it does not affect appellant's substantial rights. Tex. R. App. P. 44.2(b). Here, appellant asserts, without analysis, that the error was constitutional, presumably because he believes it violated his rights to effective assistance of counsel and due process. But the error, if any, was in admitting evidence in violation of appellant's work-product privilege. While that privilege may have some relationship to appellant's Sixth Amendment right to effective assistance of counsel and his right to due process, it is not a constitutionally protected right. See Pope v. State, 161 S.W.3d 114, 121 (Tex.App.-Fort Worth 2004) (concluding error in erroneous admission of work product was not constitutional), aff'd on other grounds, 207 S.W.3d 352 (Tex. 2006) (citing United States v. Nobles, 422 U.S. 225, 236-37 (1975) (recognizing work-product privilege in criminal case is based upon public policy and rejecting argument that court order requiring disclosure of work product violated respondent's Sixth Amendment right to effective assistance of counsel where order was result of respondent's election to make "testimonial use" of report and court order was "limited and conditional") and Hickman v. Taylor, 329 U.S. 495 (1947) (recognizing in civil case work-product doctrine as privilege based upon public policy)); Pope, 207 S.W.3d at 366 (Johnson, J., concurring) (agreeing that court of appeals correct in determining error was harmless under rule 44.2(b)); cf. Gray v. State, 159 S.W.3d 95, 97 (Tex.Crim.App. 2005) (explaining even though purpose of statute was to ensure protection of constitutional right, that purpose does not "convert statutory right into one of federal constitutional dimensions in determining which harm analysis applies"). Accordingly, we conclude the error, if any, is not constitutional and disregard it unless it affected appellant's substantial rights. Tex. R. App. P. 44.2(b). A substantial right is affected when the error had a substantial and injurious effect or influence in determining the jury's verdict. Haley v. State, 173 S.W.3d 510, 518 (Tex.Crim.App. 2005). In assessing the likelihood the jury's decision was adversely affected by the error, we should consider everything in the record, including any testimony or physical evidence admitted for the jury's consideration, the nature of the evidence supporting the verdict, the character of the alleged error and how it might be considered in connection with other evidence in the case. Id. We may also consider the jury instructions, the State's theory and any defensive theories, closing arguments, voir dire, and whether the State emphasized the error. Id. at 518-19. Additionally, the presence of overwhelming evidence of guilt plays a determinative role in this analysis. Neal v. State, 256 S.W.3d 264, 285 (Tex.Crim.App. 2008), cert. denied, 129 S. Ct. 1037 (2009). If after examining the record as a whole, we determine any error had a slight or no effect on the jury, then we will not overturn the trial court's ruling. Id. The asserted error in this case was the admission of evidence in violation of the work-product privilege. The particular evidence at issue was Dr. Staub's testimony that Oscar's DNA was found in bloodlike material on the statuette. By the time Dr. Staub testified, however, the jury had already been told by the State's experts that (1) appellant's palm print was found on a statuette in the room where Oscar was murdered and (2) the palm print was found in material that appeared to be blood. Immediately after Dr. Staub's testimony, the jury further heard that the material was presumptively blood, although there was not enough material to perform confirmatory testing. The fingerprint expert testified there were two ways to leave a bloody palm print on an object: by touching the object with bloody hands or putting hands on a bloody object. In addition to the statuette in question, police recovered a second blood-stained statuette that was broken into pieces. The State's expert testified he was able to obtain a full DNA profile off the broken pieces, several of which matched Oscar's DNA profile. The medical examiner testified that both statuettes were consistent with the blunt force trauma wounds to Oscar's head. Given the evidence that Oscar's blood and DNA were all over the room where he was killed, a reasonable jury could have concluded that the blood-like material on the statuette, and in particular in the area of appellant's palm print, belonged to Oscar, even without Dr. Staub's testimony. Moreover, when allowing the State to call Dr. Staub as a witness, the trial court set out strict parameters to ensure the jury would not know he was appellant's expert. The trial court ordered that the State not allude to or mention Dr. Staub was hired on behalf of the defense and precluded the State from going into any confidential communications between Dr. Staub and defense counsel. The defense makes no complaint that the parameters were violated. Further, the court "strictly limited" the State to Dr. Staub's testing procedures and results and did not allow the State an opportunity to talk to Dr. Staub before calling him as a witness. Although the State referenced the bloody palm print in closing argument, it did not unduly emphasize the evidence and discussed it in reference to other evidence directly tying appellant to the crime. In fact, the State argued jurors could, under the charge, find appellant guilty as a co-conspirator even if they believed appellant "did not have a hand" in Oscar's killing because he was a party to the kidnapping and was responsible for the foreseeable acts of the co-conspirators. Finally, the evidence against appellant was substantial. Appellant and Acevedo had been good friends for years, and in the month before the kidnapping-murder, appellant was planning to return to Mexico. During that time, he bought a cell phone that was used to make the voice-altered ransom calls, and a voice alternator was found in appellant's pocket when he was arrested at the Chicago airport. Oscar was killed in appellant's house, and appellant drove his truck to dispose of the body. Afterwards, he paid for a motel room so he and Acevedo could spend the night before fleeing Texas the next morning in appellant's truck. Once in Chicago, appellant sold his truck and bought separate airline tickets so that the two could fly to Mexico at different times, presumably to avoid detection if the police were looking for two suspects. Although appellant presented a duress defense through the testimony of a career criminal who was awaiting trial on two capital murder charges, the jury apparently believed the story was contrived, given that it contradicted appellant's own statements to the police regarding where he was when Oscar was brought to his house. Additionally, other witnesses testified appellant did not seem to be under duress or in fear while in Chicago just before he was arrested. Having reviewed the record, we conclude any error in allowing Dr. Staub to testify about his testing and conclusions on the statuette had only slight or no effect on the jury's verdict in this case. In reaching this conclusion, however, we stress that our opinion should not be read to condone the actions of the State in bringing in an expert during a lunch break to test evidence already admitted, apparently without ever obtaining the permission of the trial court or without notifying the defense. Regardless of whether the prosecutor had "good intentions," we strongly admonish against similar conduct in the future. Nevertheless, our disposition of these issues is guided by the harmless error analysis set out above. Accordingly, we overrule issues one through three. In his fourth and fifth issues, appellant contends the trial court erred in not providing him a hearing on his written motion to suppress evidence obtained from a search of his house and from intercepted wire, oral, or electronic communications. Jury selection in the trial began on August 20, 2007. The week before, on August 15, the trial court conducted a pretrial hearing on various motions filed by appellant. The next day, it conducted an extensive suppression hearing on the admissibility of appellant's statement to the police. At that time, the trial court agreed to continue the hearing after trial began to allow a Chicago police detective to arrive in Dallas. On August 22, just minutes before the first witness was called, appellant filed the written motion to suppress at issue here, raising issues he had not raised in the earlier pretrial hearings. After a "conversation at the bench" that was not recorded, appellant requested "to continue our hearings outside the presence of the jury as the Court had talked about [at the conclusion of the hearing to suppress the statement] on Friday." The trial court noted that it agreed to continue the hearing to suppress the statement, that appellant had filed a motion raising new matters, and that it had "conducted two pretrial hearings on this earlier." Later, when the subject matter of the motion came up during trial, appellant objected to "any testimony about cell phone tower pings or any kind of pen register — registration by the police pursuant to our motions filed 22 of August." The trial court overruled the objection, stating the motion was "just filed this morning" and was untimely. Again, the court further stated it had conducted pretrial hearings in advance. Article 28.01 of the Texas Code of Criminal Procedure allows the trial court discretion to set any criminal case for a pre-trial hearing before it is set for trial. Tex. Code Crim. Proc. Ann. art. 28.01, § 1 (Vernon 2006). The provision was designed to enable the trial judge to dispose of certain matters sometime prior to trial to avoid delays after jurors and witnesses have been summoned. Johnson v. State, 803 S.W.2d 272, 283 (Tex.Crim.App. 1990); Bosley v. State, 414 S.W.2d 468, 470 (Tex.Crim.App. 1967). A motion to suppress is one of the preliminary matters that a trial court can consider pretrial. Tex. Code Crim. Proc. Ann. art. 28.01, § 1(6). Moreover, "[w]hen a criminal case is set for such pre-trial hearing, any such preliminary matters not raised or filed seven days before the hearing will not thereafter be allowed to be raised or filed, except by permission of the court for good cause shown. . . ." Id. at 28.01, § 2. Here, appellant did not raise the issues complained of in the motion to suppress at the two pretrial hearings held the week before trial. Given the purpose of article 28.10, and appellant's failure either at trial or on appeal to set out any cause for his delay in filing the motion, we cannot say the trial court abused its discretion in failing to hold a hearing on the motion. To the extent appellant complains he was entitled to a hearing when he objected at the time the evidence was offered at trial, appellant did not request a hearing at that time. See Holmes v. State, 248 S.W.3d 194, 199 (Tex.Crim.App. 2008) (explaining defendant may challenge admissibility of evidence in two ways: (1) object to admission of evidence at time it is offered at trial and request hearing outside presence of jury or (2) file pretrial motion to suppress and have it heard and ruled upon before trial). We overrule the fourth and fifth issues. In issues six through seventeen, appellant complains the trial court erred in admitting testimony that he refused to answer some of the questions asked of him by police officers. He contends his refusal to answer questions was an affirmative invocation of his right to remain silent and admission of testimony regarding invocation of this right violated the Fifth Amendment and article 38.08 of the Texas Code of Criminal Procedure. To preserve a complaint for appellate review, a specific and timely objection, motion, or request must be made to the trial court. Neal, 256 S.W.3d at 279. To be adequately specific, the complaint must "let the trial judge know what he wants and why he is entitled to it." Id. Here, appellant asserts he was granted "a running objection and re-urged that objection before the admission of the testimony regarding the statement to the jury." He directs us to two places in the record where he presumably preserved error. First, appellant directs us to an objection to testimony regarding the search of appellant's car that is irrelevant to his claims regarding his statement. Second, he directs us to an objection where he reurged "our 38.22 hearing." We have reviewed the hearing on the admissibility of appellant's statement, and nowhere did he lodge any complaint regarding his refusal to answer questions or the violation of his right to remain silent. In fact, the hearing revolved around his comprehension of the English language, whether he was induced to talk by promises by the police, the fact that the statement was not reduced to writing, and whether the police contacted the Mexican consulate. (In fact, during the State's cross-examination of appellant during the hearing, defense counsel objected that the hearing was limited to articles 38.22 and 38.23.) Additionally, nothing in the record reflects the trial court was aware of any such complaint. After the hearing on the admissibility of the statement, the trial court made several fact findings, none of which was related to appellant's right to remain silent. Because we conclude appellant has waived these complaints, we overrule issues six through seventeen. In his twentieth issue, appellant argues the trial court erred in allowing the testimony before the jury that appellant invoked his right to counsel. Appellant did not object when the evidence was admitted and relies on his "continuing objection." For the same reason outlined above, we conclude appellant waived this issue by not bringing this complaint at trial. In his eighteenth issue, appellant contends the trial court erred in admitting his oral statements because they were "induced by promise or benefit or reward" and were therefore involuntary. Specifically, appellant testified at the suppression hearing that Chicago Detective William Schober told him "that he wanted to know the whole story, and that it was to my benefit that for me to tell him everything I knew, because that was the best way to cooperate with the police." On appeal, he asserts he "was influenced" by this remark. In reviewing the voluntariness of a confession, we give almost total deference to a trial court's determination of historical facts in a suppression hearing. State v. Ross, 32 S.W.3d 853, 856 (Tex.Crim.App. 2000). The trial judge is the sole trier of fact and judge of the credibility of the witnesses and the weight to be given their testimony. State v. Ballard, 987 S.W.2d 889, 891 (Tex.Crim.App. 1999). We review the evidence in the light most favorable to the trial court's ruling and cannot reverse the court's decision on the admissibility of evidence absent an abuse of discretion. Id. The statement of an accused may be used against him if it appears the same was freely and voluntarily made without compulsion or persuasion. Tex. Code Crim. Proc. Ann. art. 38.21 (Vernon 2005). For a promise to render a confession invalid under article 38.21, the promise must be positive, made or sanctioned by someone in authority, and of such an influential nature that it would cause a defendant to speak untruthfully. Martinez v. State, 127 S.W.3d 792, 794 (Tex.Crim.App. 2004). An improper inducement must be of an exceptional character before it will invalidate an otherwise voluntary statement. Espinosa v. State, 899 S.W.2d 359, 364 (Tex.App.-Houston [14th Dist.] 1995, pet. ref'd). General statements about how a confession might result in more lenient treatment will not invalidate the confession. Id. (citing Dykes v. State, 657 S.W.2d 796, 797 (Tex.Crim.App. 1983). At the suppression hearing, Detective Schober testified that he did not threaten or coerce appellant in any way nor did he make him any promises to induce him to talk. At the conclusion of the hearing, the trial court found appellant voluntarily spoke to Detective Schober, who made "no promises, threats or coercions." As the sole judge of the witnesses' credibility, the trial court was entitled to believe Detective Schober and disbelieve appellant. Moreover, even if Detective Schober's statement could be interpreted as a promise of leniency, we cannot conclude such a general statement is the type that would invalidate appellant's statement. We overrule the eighteenth issue. In his nineteenth issue, appellant challenges the admissibility of his oral statements which led to the discovery of evidence (i.e., the body of Oscar and a trash pile containing Oscar's blood) tending to show appellant's guilt because "any findings were the result of the continued questioning" of appellant after he had invoked his right to counsel. Article 38.22 of the Texas Code of Criminal Procedure in pertinent part provides:
Sec. 3. (a) No oral or sign language statement of an accused made as a result of custodial interrogation shall be admissible against the accused in a criminal proceeding unless:
Even if we concluded the asserted error was of constitutional dimension, we would not conclude reversal was warranted. When constitutional error has been found, we should reverse unless we determine beyond a reasonable doubt that the error did not contribute to the defendant's conviction or punishment. See Tex. R. App. P. 44.2(a). Our primary inquiry is what effect the error had, or reasonably may have had, on the jury's decision. Wimbrey v. State, 106 S.W.3d 190, 192 (Tex.App.-Fort Worth 2003, pet. ref'd). "We consider the source and nature of the error, the extent that it was emphasized by the State, its probable collateral implications, the weight a juror would probably place on the error, and whether declaring it harmless would likely encourage the State to repeat it with impunity." Id. "This requires us to evaluate the entire record in a neutral, impartial, and even-handed manner, not in the light most favorable to the prosecution." Id. Reviewing the record in light of these factors, we would conclude beyond a reasonable doubt that the error, if any, did not contribute to the defendant's conviction.
In the Table of Contents and Issues Presented portions of appellant's brief, issues four and five set out a different complaint than what was identified and argued in the substantive portion of the brief. We therefore address the issues as briefed.
* * *
(c) Subsection (a) of this section shall not apply to any statement which contains assertions of facts or circumstances that are found to be true and which conduce to establish the guilt of the accused, such as the finding of secreted or stolen property or the instrument with which he states the offense was committed.Tex. Code Crim. Proc. Ann. art. 38.22 (Vernon 2005). As a general rule, under section 3(a), oral confessions are not admissible. However, as an exception set out in section 3(c), oral statements asserting facts or circumstances establishing the guilt of the accused are admissible if at the time they were made they contained assertions unknown by law enforcement but later corroborated. Moore v. State, 999 S.W.2d 385, 401 (Tex.Crim.App. 1999. Such oral statements need only circumstantially demonstrate the defendant's guilt. Id. Furthermore, if such an oral statement contains even a single assertion of fact found to be true and conducive to establishing the defendant's guilt, then the statement is admissible in its entirety. Id. At the suppression hearing, Dallas Detective Joe DeCorte testified he went to Chicago on the day appellant was arrested and talked to him. Appellant gave a lengthy statement that included a description of the area where Oscar's body could be found and identified the area on a Mapsco. At the conclusion of the interview, the police asked appellant if he would put his statement in writing. Appellant said he would, but wanted an attorney present when he did. After appellant was returned to Dallas, police asked him to help them locate the area where the body was, and appellant agreed to help bring closure to Sanchez's family. Police drove him down Interstate 20 to see if he could remember which exit was taken, but appellant became emotional and the police "shut it down" after realizing appellant could not remember the exact exit. Later, because of the information appellant provided in his oral statements to Detective Decorte in Chicago, police located the area and found a trash pile with items containing Oscar's blood and ultimately Oscar's body. In his brief, appellant presumes the information that led to the discovery of the trash pile and the body was obtained during the car ride with police after appellant was returned to Dallas and after he had invoked his right to counsel. However, the evidence showed appellant did not lead the police to the body that night. Rather, the police later found the body and the trash pile because of the information provided by appellant in the Chicago interview, before appellant invoked his right to counsel. Specifically, Detective DeCorte testified the information obtained in the Chicago interview "put us in the general area and it put us — we knew we had to make a right turn on the road and another right turn. I mean, if you were to follow his instructions with that exit, that's how we found it. We just went back. And by looking at aerials and looking at different roads, we had no idea where the body was. But he put us in the general vicinity." The trial court made findings that (1) all of appellant's statements to Detective DeCorte in Chicago were made prior to his requesting counsel and (2) appellant's oral statements to Detective DeCorte led to the discovery of evidence that tended to show the guilt of [appellant], that being the body of the victim and a trash pile containing blood belonging to the victim." Having reviewed Detective DeCorte's testimony, we conclude the evidence supports the findings. We conclude the information that led to the discovery of the evidence was given prior to appellant invoking his right to counsel. Further, to the extent appellant complains the trial court erred in admitting evidence at trial relating to the car ride, appellant adduced that evidence. We overrule the nineteenth issue. We affirm the trial court's judgment.