Opinion
No. 05-18-00870-CR No. 05-18-00871-CR No. 05-18-00872-CR
03-16-2021
THE STATE OF TEXAS, Appellant v. KEVIN CASTANEDANIETO, Appellee
On Appeal from the Criminal District Court No. 6 Dallas County, Texas
Trial Court Cause Nos. F17-57212-X , F17-57213-X, & F18-00407-X
MEMORANDUM OPINION ON REMAND
Before Justices Partida-Kipness, Carlyle, and Smith
Opinion by Justice Carlyle
Justice Smith has substituted on the submission panel. He has reviewed the briefs and record in this case.
This case is before us on remand from the Texas Court of Criminal Appeals (CCA). The State appeals the trial court's order suppressing appellee Kevin Castanedanieto's oral statement to police. On original submission, we affirmed the trial court's order.
See State v. Castanedanieto, Nos. 05-18-00870-CR, 05-18-00871-CR, & 05-18-00872-CR, 2019 WL 4875340, at *3 (Tex. App.—Dallas Oct. 3, 2019), reversed, 607 S.W.3d 315 (Tex. Crim. App. 2020). A member of this Court's original submission panel dissented. See 2019 WL 4875340, at *5 (Bridges, J., dissenting).
On the State's petition for review, the CCA reversed our judgment and remanded the case to us with an instruction to "address[] the theories of law that Applicant presented to the trial court." State v. Castanedanieto, 607 S.W.3d 315, 330 (Tex. Crim. App. 2020). Consistent with that instruction, for the reasons that follow, we again affirm the trial court's order.
Background
We adopt the CCA's' recitation of this case's factual background, id. at 317-24, and provide only the facts necessary to decide this appeal. Mr. Castanedanieto was arrested for aggravated robbery in the early morning hours of August 10, 2017. At that time, he was eighteen years old and had emigrated from El Salvador five years earlier. Shortly after his arrest, around 3:00 a.m., he was interviewed by Detective Thayer of the Dallas Police Department. That interview was video recorded. Detective Thayer elicited Mr. Castanedanieto's personal information, conveyed warnings required by Miranda and Texas Code of Criminal Procedure article 38.22 , then proceeded with questioning:
Miranda v. Arizona, 384 U.S. 436 (1966).
DETECTIVE: . . . [S]o you came here 5 years ago. Did you go to school?
APPELLEE: Yes, sir.
DETECTIVE: Did you graduate?
APPELLEE: *Shakes head no*
DETECTIVE: Didn't graduate?
APPELLEE: No, almost.Mr. Castanedanieto then described his activities that led to his arrest.
. . . .
DETECTIVE: So do you stay with your uncle now?
APPELLEE: Mhmm.
DETECTIVE: Where does he stay at? Garland?
APPELLEE: Yes.
DETECTIVE: What's the address?
APPELLEE: I don't know the address, but he lives off of Walnut Street.
. . . .
DETECTIVE: Okay. Well I'm going to read these to you. You have the right to remain silent and not make any statement at all, and any statement you make may be used against you at your trial. Any statement you make may be used as evidence against you in court. You have the right to have a lawyer present to advise you prior to and during any questioning. If you're unable to employ a lawyer, you have the right to have a lawyer appointed to advise you prior to and during any questioning. And you have the right to terminate the interview at any time. Do you understand the rights I have read to you?
APPELLEE: *Shakes hand so/so*
DETECTIVE: A little bit? Okay—Well are you—
APPELLEE: It's just 'cause I don't speak a lot of English.
DETECTIVE: Can you read Spanish?
APPELLEE: Yes.
DETECTIVE: Okay, read that for me and tell me if you understand.
APPELLEE: [Reads rights out loud in Spanish]
DETECTIVE: Okay, do you understand?
APPELLEE: *Nods affirmatively*
DETECTIVE: Okay. Are you willing to talk to me—
APPELLEE: Um—
DETECTIVE: —and try to figure this all out?
APPELLEE: It's 'cause—um—I don't understand.
DETECTIVE: Okay, let's talk about what happened tonight.
APPELLEE: Yes, sir.
That evening, Mr. Castanedanieto was arraigned before a magistrate, who informed him of a number of rights and warnings, including those required by Miranda. When asked whether he wanted an appointed lawyer, Mr. Castanedanieto informed the magistrate that he did.
The next day, Mr. Castanedanieto was appointed an attorney, but that attorney declined representation. Three days later, Mr. Castanedanieto was appointed the attorney who represented him in the trial court.
The next evening, August 11, Dallas police detective Olegario Garcia went to the jail and asked Mr. Castanedanieto if he would come to police headquarters for an interview. Mr. Castanedanieto agreed, and that interview was also video recorded. Detective Garcia began the interview by eliciting basic identifying information (name, address, date of birth), asking about family members, and inquiring about life in El Salvador. Then he stated as follows:
DETECTIVE: Alright, basically we're going to go over everything that you talked about with the other Detective and now that you've had a couple days to think about stuff maybe you might remember something that you didn't or you might have some questions of your own for me that I'll try to answer, okay? If I don't know the answer, I'll tell you. And if I do, you know I'll be honest with you and give you the information. Okay?
APPELLEE: I'm gonna do the same, ask me anything you want. I'll tell you, I'm going to tell you the truth.
DETECTIVE: Alright, [the other detective] read this to you. But everybody who comes in here, we read this to you. You have the right to remain silent and not make any statement at all and any statement you make may be used against you at your trial. Any statement you make may be used against you as evidence in court. You have the right to have a lawyer present to advise you prior to and during any questioning. If you're not able to employ a lawyer you have the right to have a lawyer appointed to you to advise you prior to or during any questioning, and you have the right to terminate the interview at any time. Do you understand the rights I read to you?
APPELLEE: Yes, sir.
DETECTIVE: Alright, are you willing to talk to me about, basically going over everything?
APPELLEE: Yeah, I'm gonna tell you—I'm gonna start by basically saying what it was I was doing.As the interview continued, Mr. Castanedanieto again described his activities leading to his arrest.
Defense counsel filed an omnibus pretrial motion, which included the following sentence: "Defendant requests a hearing prior to the introduction of any statements allegedly made by the Defendant, either orally or in writing, to determine the admissibility of same." At the suppression hearing, defense counsel initially claimed the statements from the first interview should be suppressed because Mr. Castanedanieto "didn't demonstrate a full awareness of the rights he was waiving and [the] meaning of the waiver of those rights." As for the statements from the second interview, defense counsel stated that "we carry 1 over to number 2, but additional grounds for number 2 is the State reinitiated contact, not the defendant," and therefore the statements from the second interview were inadmissible.
The State responded that it sought to admit only the statements from the second interview. In support of its position, the State called Detective Garcia, the sole live witness at the suppression hearing. Detective Garcia stated that at the time of the second interview, he had been "informed that [Mr. Castanedanieto] had given some confessions" to cases other officers were investigating. The prosecutor asked the detective if he ever had any concerns that Mr. Castanedanieto was not understanding him in the interview. Detective Garcia answered, "No, I felt like he understood what I was saying." When asked if that was based on "language, education level, mental acuity," the detective responded that it "seemed like he understood what I was saying, was able to respond properly to the questions I was asking. He had an understanding of slang words, you know. I think that showed me he was ingrained into the culture here in the United States." Detective Garcia further testified that when he finished reading the Miranda warnings, he asked Mr. Castanedanieto if he understood the rights that were read, and Mr. Castanedanieto responded, "Yes," and nodded his head. The prosecutor asked: "Did it seem, based on your communication with him, that he was voluntary—voluntarily telling you all of these things?" Detective Garcia responded, "Correct."
After the State rested, defense counsel had the first four minutes of the first interview played for the trial court, which included the portion described above. During closing argument at the hearing, defense counsel asserted, "[W]e're not talking about a language barrier. We're talking about whether or not the defendant understands his rights and the consequences of waiving them." Defense counsel stated:
After the rights are read in English, he indicates that he doesn't understand English well enough to go over the legal parts, and so the officer has him read the card in Spanish, which he does.
When he reads the card in Spanish, the officer proceeds and asks him if he understands. The defendant clearly, when he refers to, "I don't understand," is referring to the waiver of his rights and the consequences of waiving them. And under Moran vs. Burbine, that is a lack of awareness of—you can't waive your rights if you don't have a
full awareness of the nature of the right being abandoned and the consequences of doing so.
. . . We have him expressing he doesn't understand. . . . In this case, the defendant expressed the fact that he did not understand the rights that he was waiving.
Defense counsel then contended this lack of understanding necessarily carried over to the second interview:
Now, that applies to the second confession in the following way: My client didn't gain an understanding of what he was doing under the Constitution in the intervening hours between confession 1 and confession 2. So the Miranda warnings given by the second detective don't cure the problem that we had from the first.
The defense also argued that the statements in the second interview were inadmissible because Mr. Castanedanieto asked for an appointed attorney at his arraignment, which occurred between the two interviews, and the police reinitiated contact with him in violation of the Sixth Amendment right to counsel. Defense counsel then summed up his claims: "And we request that you suppress the second confession on those two bases. Number 1, it was made without full awareness, which is the fruit of the poisonous tree from the first interrogation; and number 2, because the Sixth Amendment was clearly violated in attaining this second confession."
The prosecutor pointed out that, in addition to being informed of his rights in the first interview, Mr. Castanedanieto was informed of them again at the arraignment and yet again in the second interview. And the prosecutor contrasted the conditions of the first and second interviews to explain how Mr. Castanedanieto's understanding of his rights could have differed at those two times:
Your Honor, he was brought in to custody August 10th in the wee hours of the morning. And you saw from his statement on August 11th that he had been drinking for a week, that he had been smoking marijuana, that he had been partaking in cocaine for the first time. So any of his statements or what—where his mental state was when he was given the rights in English and again in Spanish have no bearing on what he understood when he was given those rights 48 hours later after a long period of sobriety in the jail.
So we believe that to the first point, Kevin Castaneda-Nieto, when he sat down voluntarily with the detective on August 11th, did understand his rights, did knowingly waive those rights and did agree to speak voluntarily. Understanding that he did have the right to say, "I want my lawyer to be with me," understanding that he did have the right to remain silent and understanding that he could have ended that at any point in time, knowing those rights, he waived those rights and agreed to speak with the detective voluntarily.
After the trial court granted the motion to suppress, the State filed a motion for reconsideration based on the Sixth Amendment argument. Following a hearing on that motion, the trial court reaffirmed its original ruling granting the suppression motion.
Analysis
We review a trial court's ruling on a motion to suppress under a bifurcated standard of review. State v. Staton, 599 S.W.3d 614, 616 (Tex. App.—Dallas 2020, pet. ref'd) (citing State v. Ruiz, 577 S.W.3d 543, 545 (Tex. Crim. App. 2019)). We give almost total deference to the trial court's determination of historical facts and review de novo the application of the law to the facts. Id. When, as here, the trial court does not issue findings of fact, findings that support the trial court's ruling are implied if the evidence, viewed in a light most favorable to the ruling, supports those findings. Turrubiate v. State, 399 S.W.3d 147, 150 (Tex. Crim. App. 2013) (citing State v. Kelly, 204 S.W.3d 808, 818-19 (Tex. Crim. App. 2006)).
The CCA has stated not only that we cannot ignore indisputable video evidence, see State v. Duran, 396 S.W.3d 563, 570-71 (Tex. Crim. App. 2013), but also that deference to the trial court is appropriate when video evidence did "not indisputably refute the trial court's finding." State v. Gobert, 275 S.W.3d 888, 892 n.13 (Tex. Crim. App. 2009).
Under the "so-called Calloway rule," the trial court's ruling must be upheld if it is reasonably supported by the record and correct under any applicable theory of law. State v. Esparza, 413 S.W.3d 81, 89 (Tex. Crim. App. 2013). But "[a] legal theory is not applicable to the case if the appealing party did not have an adequate opportunity to develop a complete factual record with respect to the theory." Castanedanieto, 607 S.W.3d at 327 (citing Esparza, 413 S.W.3d at 90).
The State has the burden of establishing by a preponderance of the evidence that a defendant knowingly, intelligently, and voluntarily waived his Miranda rights. E.g., Leza v. State, 351 S.W.3d 344, 349, 351 (Tex. Crim. App. 2011); Joseph v. State, 309 S.W.3d 20, 24 (Tex. Crim. App. 2010). In evaluating whether there was a valid waiver, a reviewing court must determine whether (1) the statement was a product of a free deliberate choice without intimidation, coercion or deception, and (2) the waiver was made with full awareness of both the nature of the right being abandoned and the consequences of abandoning that right. Joseph, 309 S.W.3d at 25 (citing Moran v. Burbine, 475 U.S. 412, 421 (1986)). Only if the "totality of the circumstances surrounding the interrogation" reveals both an uncoerced choice and the requisite level of comprehension may a court properly conclude that Miranda rights have been waived. Id. The "totality-of-the-circumstances approach" requires consideration of "all the circumstances surrounding the interrogation," including the defendant's experience, background, and conduct. Id. (quoting Fare v. Michael C., 442 U.S. 707, 725 (1979)).
If a statement is coerced, later statements are presumptively the fruit of the poisonous tree and are admissible only if the taint has been shown to be attenuated. Castanedanieto, 607 S.W.3d at 328. By contrast, a failure to comply with Miranda or article 38.22 in a prior interview gives rise to no such presumption and ordinarily does not bar statements made in a subsequent interview that does comply. Id. The only exception is when police use a two-step interrogation technique "in a calculated way to undermine the Miranda warning." Id. (quoting Carter v. State, 309 S.W.3d 31, 37 (Tex. Crim. App. 2010)).
To determine whether a first confession's inadmissibility tainted a second confession, a reviewing court considers the following factors: (1) did the condition rendering the first confession inadmissible persist through later questioning; (2) how long was the break in time between the two confessions; (3) was the defendant given renewed Miranda warnings; (4) did defendant initiate the police interview which resulted in the later confession; and (5) "any other relevant circumstances." Sterling v. State, 800 S.W.2d 513, 519 (Tex. Crim. App. 1990). "Other relevant circumstances" include (6) was the defendant taken before a magistrate to be warned of his rights between confessions; (7) was there particular evidence that defendant's later confession was motivated by a desire to exculpate himself, rather than by any earlier improper influences brought to bear on him; (8) did the defendant remain in custody between the confessions; (9) did the defendant confer with counsel between confessions, or make any kind of request for counsel; and (10) was there particular evidence to suggest that defendant was motivated by "cat out of the bag" thinking—i.e., he gave the second confession when he otherwise might not have because he had already given the first one. Id. at 519-20.
In United States v. Bayer, 331 U.S. 532, 540-41 (1947), Justice Jackson wrote,
[A]fter an accused has once let the cat out of the bag by confessing, no matter what the inducement, he is never thereafter free of the psychological and practical disadvantages of having confessed. He can never get the cat back in the bag. The secret is out for good. In such a sense, a later confession may always be looked upon as fruit of the first. But this Court has never gone so far as to hold that making a confession under circumstances which preclude its use, perpetually disables the confessor from making a usable one after those conditions have been removed.We refer to this line of cases as a potential basis for the trial court's action, as we must in our role as an appellate court. It is not to be read as broadening the "cat out of the bag" theory, which is distinctly cabined as a basis in Texas law for either (1) suppression in the trial court or (2) reversing the denial of suppression.
Here, the State's sole issue on appeal asserts, "The trial court erred in suppressing Appellee's second confession. The ruling is wrong under any theory of law." In reversing this Court's original opinion, the CCA concluded our opinion was based on a "coercion theory" as to which the State did not have an adequate opportunity to develop a complete factual record. Castanedanieto, 607 S.W.3d at 330. Pursuant to the CCA's instruction, we now focus on a theory the CCA described as having been presented to the trial court: "that Appellee did not understand the Miranda/Article 38.22 warnings in the first interview and that this lack of understanding carried over to the second interview." Id. at 326.
The State's brief also restates the issue as follows: "The trial court erred in suppressing Appellee's second confession because Appellee's confession was given knowingly, intelligently, and voluntarily, and Appellee's Fifth and Sixth Amendment rights to counsel were not violated."
In light of its conclusion that this Court's original opinion was based solely on an undeveloped "coercion theory," the CCA specifically declined to address the "lack-of-understanding" theory in its reversal opinion. See id. at 329 ("We need not and do not decide whether the State would prevail against Appellee's lack-of-understanding claim.").
The State asserts in its appellate brief:
Instead of attacking the second interview, Appellee attempted to bootstrap the two interviews and argued that the first interview was inadmissible; therefore, the second one was also. However, he conceded at the hearing that his complaint was not due to a language barrier but that because Appellee lacked awareness of his rights in the first interview and that deficiency was not attenuated in the intervening hours between interviews, the second interview was tainted. However, the record reveals this is not the case and the two interviews were distinct and under different circumstances. Assuming, without conceding, the first interview—which was not offered by the State—was obtained without Appellee's awareness of his rights, it did not taint the second interview.
. . . .
. . . Finally, there was no indication that Appellee would not have given that confession but for the fact that he gave the first one. Appellee also confessed to other uncharged offenses during the interview. Even if the first interview was tainted, there was sufficient evidence presented by the State to show that the second interview was not. Appellee's argument to the trial court was not supported by the record, does not involve facts of credibility or demeanor, and is without merit.
The video recording of the first interview shows that though Mr. Castanedanieto nodded his head when asked if he understood the Spanish-language text he read aloud, Detective Thayer asked him immediately thereafter if he was "willing to talk" and he stated, "It's 'cause—um—I don't understand." Detective Thayer stated "okay" and then began questioning Mr. Castanedanieto. Based on the "totality of the circumstances," including Mr. Castanedanieto's emigration from El Salvador and his education level, we conclude the trial court reasonably could have determined Mr. Castanedanieto's waiver of his rights in the first interview was not made knowingly and intelligently. See Joseph, 309 S.W.3d at 25.
The dissenting justice in our original opinion reached the same conclusion (before dissenting on other grounds): "I . . . acknowledge we are required to give almost total deference to the trial court's determination of demeanor even when that determination is based on a video recording. Thus, giving almost complete deference to the trial court's determination of historical facts, 'especially if those are based on an assessment of credibility and demeanor,' I must defer to the trial court's implicit finding that appellee's lack of understanding [in the first interview] referred to his Miranda rights." 2019 WL 4875340, at *8 (Bridges, J., dissenting).
The CCA stated in its opinion that "[Mr. Castanedanieto's] legal theories were of the sort that do not involve a traditional 'taint' analysis." Castanedanieto, 607 S.W.3d at 328-29. Regardless, the record shows the circumstances here allowed for application of the exception to the "ordinarily" applicable rules regarding Miranda and article 38.22. See id. at 328. The record supports a reasonable inference of police awareness of Mr. Castanedanieto's stated lack of understanding as to his rights in the first interview. Yet Detective Garcia proceeded to initiate a second interview that he specifically described to Mr. Castanedanieto as being based on what was said in the first interview, thus necessarily implying, prior to giving any warnings in the second interview, that everything previously said by Mr. Castanedanieto—a young immigrant with limited education—could already be properly used against him. On this record, to the extent the trial court inferred an effort to undermine Mr. Castanedanieto's rights, we cannot conclude such an inference was unreasonable. See Carter, 309 S.W.3d at 41 (applying "appropriately deferential standard of review" to trial court's determination of whether two-step police interrogation attempted to undermine Miranda).
The State contends "there was no indication that Appellee would not have given that confession but for the fact that he gave the first one" and thus any lack of understanding in the first interview did not affect the second statement. We disagree for essentially the same reasons described above. At the start of the second interview, Detective Garcia reminded Mr. Castanedanieto of his interrogation and confession the day before, stated "basically, we're going to go over everything that you talked about with the other Detective," and suggested Mr. Castanedanieto may have even more to tell the second time around. This reference to the former, improperly-obtained confession as having already irreversibly established the background and starting point for the present interview came before Detective Garcia conveyed any Miranda and article 38.22 warnings. On this record, we conclude the trial court had sufficient basis to conclude Mr. Castanedanieto's second confession was motivated, at least in part, by so-called "cat out of the bag" thinking. See Sterling, 800 S.W.2d at 519-20; see also State v. Duran, 396 S.W.3d 563, 571 & n.23 (Tex. Crim. App. 2013) ("The winning side is afforded the 'strongest legitimate view of the evidence' as well as all reasonable inferences that can be derived from it." (citing State v. Weaver, 349 S.W.3d 521, 525 (Tex. Crim. App. 2011); State v. Woodard, 341 S.W.3d 404, 410 (Tex. Crim. App. 2011))). And this same analysis demonstrates how Mr. Castanedanieto's lack of understanding of his rights in the first interview "carried over into the second interview." Castanedanieto, 607 S.W.3d at 326.
We need not approve the trial court's conclusion as the one we necessarily would have made, but cite this path of legal analysis as a potential suppression basis that was not an abuse of discretion. See Esparza, 413 S.W.3d at 89 (trial court's ruling must be upheld if it is reasonably supported by the record and correct under any applicable theory of law). We note that this legal theory is specifically addressed in the portion of the State's October 2018 opening appellate brief described above, without any mention of a lack of opportunity to develop the record in the trial court: "Finally, there was no indication that Appellee would not have given that confession but for the fact that he gave the first one. . . . Even if the first interview was tainted, there was sufficient evidence presented by the State to show that the second interview was not."
We note that in Oregon v. Elstad, the Supreme Court walked back its recognition of the "cat out of the bag" theory as a basis for excluding confessions. See 470 U.S. 298, 314 (1985). The Court in Elstad stated,
[A]bsent deliberately coercive or improper tactics in obtaining the initial statement, the mere fact that a suspect has made an unwarned admission does not warrant a presumption of compulsion. A subsequent administration of Miranda warnings to a suspect who has given a voluntary but unwarned statement ordinarily should suffice to remove the conditions that precluded admission of the earlier statement. In such circumstances, the finder of fact may reasonably conclude that the suspect made a rational and intelligent choice whether to waive or invoke his rights.Id. But nothing in Elstad's language requires reversal of a grant of suppression under these circumstances simply because the facts could be reweighed to possibly warrant a conclusion denying the suppression motion. Here, there is evidence to support a determination that Mr. Castanedanieto was motivated at least in part by "cat out of the bag" thinking, and nothing in the second video indisputably demonstrates he was not. See Sterling, 800 S.W.2d at 519. On this record, we conclude the trial court did not abuse its discretion by granting Mr. Castanedanieto's motion to suppress his second statement.
We affirm the trial court's order.
/Cory L. Carlyle/
CORY L. CARLYLE
JUSTICE Do Not Publish
TEX. R. APP. P. 47.2
180870RF.U05
JUDGMENT
On Appeal from the Criminal District Court No. 6, Dallas County, Texas
Trial Court Cause No. F17-57212-X.
Opinion delivered by Justice Carlyle. Justices Partida-Kipness and Smith participating.
Based on the Court's opinion of this date, the order of the trial court is AFFIRMED. Judgment entered this 16th day of March, 2021.
JUDGMENT
On Appeal from the Criminal District Court No. 6, Dallas County, Texas
Trial Court Cause No. F17-57213-X.
Opinion delivered by Justice Carlyle. Justices Partida-Kipness and Smith participating.
Based on the Court's opinion of this date, the order of the trial court is AFFIRMED. Judgment entered this 16th day of March, 2021.
JUDGMENT
On Appeal from the Criminal District Court No. 6, Dallas County, Texas
Trial Court Cause No. F18-00407-X.
Opinion delivered by Justice Carlyle. Justices Partida-Kipness and Smith participating.
Based on the Court's opinion of this date, the order of the trial court is AFFIRMED. Judgment entered this 16th day of March, 2021.