Opinion
No. 05-11-00009-CR
05-31-2012
JOSE SANTOS CHAVEZ, Appellant v. THE STATE OF TEXAS, Appellee
AFFIRM; Opinion Filed May 31, 2012.
On Appeal from the Criminal District Court No. 3
Dallas County, Texas
Trial Court Cause No. F10-12961-J
OPINION
Before Justices O'Neill, Richter, and Lang-Miers
Opinion By Justice Richter
A jury found appellant guilty of aggravated sexual assault of a child under six years of age and the trial court assessed punishment at forty years' imprisonment. In three issues on appeal, appellant contends the trial court erred in admitting evidence of his oral and written statements to the police because he did not knowingly, voluntarily, and intelligently waive his rights and because the detective who questioned him engaged in question-first tactics before administering his statutory and constitutional warnings. Because we conclude the trial court did not err in admitting the statements into evidence, we affirm the trial court's judgment. Background
After a four-year old child in appellant's wife's care complained that appellant "poked her in her private part," appellant was arrested and charged with aggravated sexual assault of a child under six years' of age. Following his arrest, appellant was taken to an interview room to be interviewed by Detective Dena Williams. Although appellant seemed to understand English, Detective Williams asked an English-to-Spanish translator to assist her. During the first twenty-five minutes of the interview, Detective Williams asked appellant to state his name, where he lived, who he lived with, where he worked, his work schedule, his wife's work schedule, whether he assisted his wife with babysitting, his medical problems, and if he knew the victim. Detective Williams asked appellant whether he understood that he had been arrested. When appellant affirmed his understanding and said he wanted to know why he had been arrested, Detective Williams told him she wanted to read him his rights first. The translator orally advised appellant of his rights. Appellant also spent approximately two minutes reading his rights in Spanish on his own, and then waived his rights. During Detective Williams' interrogation, appellant orally confessed and subsequently prepared a written statement. According to appellant, he pulled his pants down and inserted his fingers into the child's vagina six times. Appellant also asked for forgiveness.
At trial, appellant moved to suppress his oral and written statements. After reviewing the video recording of appellant's interrogation and confession, the trial court overruled appellant's objections and admitted the statements into evidence. The jury found appellant guilty of aggravated sexual assault of a child under six years' of age, and the trial court sentenced him to forty years' imprisonment. This appeal followed.
Discussion
Voluntary Waiver of Rights
In his second and third issues, appellant contends his oral and written statements were inadmissible because the State failed to demonstrate a knowing, intelligent, and voluntary waiver of his rights as required by article 38.22 of the code of criminal procedure and Miranda. See Tex. Code Crim. Proc. Ann. art. 38.22 § (2) (a) (West 2005); Miranda v. Arizona, 384 U.S. 436, 444, 475 (1966). We disagree.
In Miranda, the Supreme Court held that "the prosecution may not use statements, whether exculpatory or inculpatory, stemming from custodial interrogation of the defendant unless it demonstrates the use of procedural safeguards effective to secure the privilege against self-incrimination." Id. at 444. This is because "the coercion inherent in custodial interrogation blurs the line between voluntary and involuntary statements and thus heightens the risk that an individual will not be accorded his privilege under the Fifth Amendment not to be compelled to incriminate himself." Id. at 439.
Article 38.22 of the Code of Criminal Procedure codifies the holding of Miranda and enumerates the procedural safeguards for securing the privilege against self-incrimination. See Tex. Code Crim. Proc. Ann. art. 38.22; Jones v. State, 944 S.W.2d 642, 650 n. 11 (Tex. Crim. App. 1996). Among its requirements, it provides that no oral statement of an accused made as a result of custodial interrogation shall be admissible against the accused in a criminal proceeding unless (1) the statement was recorded and (2) prior to the statement but during the recording, the accused was warned of his rights and knowingly, intelligently, and voluntarily waived those rights. See Tex. Code Crim. Proc. Ann. art. 38.22, §2, 3 .
The State has the burden of showing that a defendant knowingly, intelligently, and voluntarily waived his Miranda rights. See Miranda, 384 U.S. at 444; Leza v. State, 351 S.W.3d 344, 349 (Tex. Crim. App. 2011). The State must prove waiver by a preponderance of the evidence. Joseph v. State, 309 S.W.3d 20, 24 (Tex. Crim. App. 2010) (citing Colorado v. Connelly, 479 U.S. 157 (1986)). The general rule is that "neither a written nor an oral express waiver is required." Watson v. State, 762 S.W.2d 591, 601 (Tex. Crim. App. 1988). A waiver need not assume a particular form and, in some cases, a "waiver can be clearly inferred from the actions and words of the person interrogated." North Carolina v. Butler, 441 U.S. 369, 373 (1979); see also Joseph v. State, 309 S.W.3d 20, 24 (Tex. Crim. App. 2010).
Thus, the inquiry does not turn on whether appellant "explicitly" waived his Miranda rights, but rather whether the waiver was knowing, intelligent, and voluntary. See Joseph, 309 S.W.3d at 25 . In evaluating whether a waiver is intelligently and voluntarily made, a court must determine whether: (1) the relinquishment of the right was voluntary in the sense that it was the product of a free and deliberate choice rather than 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 the decision to abandon it. "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 the Miranda rights have been waived. Id. (quoting Moran v. Burbine, 475 U.S. 412, 421 (1986)); see also Leza, 351 S.W.3d at 349.
At trial, appellant testified that he did not end the interview because he did not know how to explain it. He claimed he was innocent, and only wrote his statement because Detective Williams insisted and because he was concerned about his wife. Appellant also testified that when he asked for forgiveness, he was asking for forgiveness for the child, not for himself.
Despite appellant's trial testimony, the record before us does not reflect any official action that could be characterized as intimidation, coercion, or deception and supports a conclusion that appellant's waiver resulted from a free and deliberate choice. We have reviewed the video recording of the interview, the testimony, and the arguments advanced by counsel at trial. The record reflects that after receiving the warnings and indicating that he understood them, appellant actively participated in the interview; he did not ask for an attorney or request that the interview be terminated. In fact, during portions of the interview, appellant appeared eager to add details. For example, appellant offered that he could not have abused the child since his prostate issues precluded his having sex with his wife. Later, appellant offered an explanation as to how semen could get on a man's hands. The interrogation took place in a well-lighted, standard-size room. Detective Williams was calm, and the exchange was conversational. Detective Williams remained seated across from appellant, and appellant was offered water and given a bathroom break.
There is also nothing to suggest that appellant was coerced into writing his statement. In fact, appellant admitted at trial that he was not forced to write his statement. The recorded interview reflects that Detective Williams asked appellant to re-read his rights before writing his statement. When she did so, appellant asked,"All of this, or this part?" Appellant took over an hour to write and proofread his statement. When the written statement was completed, appellant read the statement aloud and signed it.
Appellant insists his confession was coerced because the detective made implied threats against his wife. A statement is involuntary if the record shows it resulted from "official coercive conduct" of such a nature that it is "unlikely to have been the product of an essentially free and unconstrained choice by its maker." Alvarado v. State, 912 S.W.2d 199, 211 (Tex. Crim. App. 2005). Appellant's argument is premised on two references to his wife. In one instance, Detective Williams stated:
You didn't mean for it to happen, but it happened several times and [the child] told her mom and her mother reported it to the police and we don't want [your wife] to get in trouble about anything that happened at your house.
Detective Williams also agreed with appellant's statement that his wife was a good a woman, and stated: "Because [your wife] is not responsible. This was a mistake that you made and it is time to tell the truth." Appellant subsequently gave his oral and written statements. At trial, Detective Williams assured the jury that she never promised anything to appellant in exchange for his confession. On cross-examination, Detective Williams explained that she mentioned appellant's wife because the wife was in the home when the offense was committed and was responsible for the child as a care giver. On direct examination, when appellant was asked why he thought the detective asked about his wife, he stated, "Well, questions about [the wife] was because she was the one that was taking care of the children . . . ."
Contrary to appellant's assertions, we do not construe the detective's statements as a threat against appellant's wife or the promise of a benefit in exchange for his confession. See e.g., Roberts v. State, 545 S.W.2d 157, 161 (Tex. Crim. App. 1977) (concluding threat or promise concerning close relative may render subsequent confession inadmissible). Although appellant testified that he confessed because he did not want any harm done to his wife, it does not follow that such concern could only result from official coercion. When a suspect creates conditions that cast suspicion upon an innocent relative, and the suspect makes a self-motivated confession to extricate the innocent relative from this position, the confession may be deemed voluntary and admissible. Id.; see also Hunter v. State, 148 S.W.3d 526, 523 (Tex. App.-Houston [14th Dist.] 2004, pet. ref'd). In the instant case, there is no evidence that appellant's statement was the product of any official psychological coercion. And "the Fifth Amendment privilege is not concerned with moral and psychological pressures to confess emanating from sources other than official coercion." Berghuis v. Thompkins, 130 S.Ct. 2250, 2263 (2010) (internal citations omitted). Appellant further contends his statements should have been suppressed because he invoked his right to remain silent and to counsel, and these rights were not honored. The admissibility of statements obtained after a person has decided to remain silent depends on whether his right to stop questioning was scrupulously honored. Michigan v. Mosely, 423 U.S. 96 (1975). There is no talismanic word or phrase with which to invoke the right to remain silent. Watson v. State, 762 S.W.2d 591, 597 (Tex. Crim. App. 1988). The officer is not, however, required to ask clarifying questions, and if the suspect's statement is not an unambiguous or unequivocal request to terminate the interview or to invoke the right to silence, the officers have no obligation to stop questioning him. Davis v. United States, 512 U.S. 452, 461--62 (1994); Ramos v. State, 245 S.W.3d 410, 418 (Tex. Crim. App. 2008). In determining whether the right to remain silent was unambiguously invoked, courts look to the totality of the circumstances. Watson, 762 S.W.2d at 597; Williams v. State, 257 S.W.3d 426, 433 (Tex. App.-Austin 2008, pet. ref'd).
Similarly, when a defendant asks for a lawyer, the interrogation must cease until counsel has been provided or the defendant initiates further communication with the police. Edwards v. Arizona, 451 U.S. 477, 484-85 (1981); Davis v. State, 313 S.W.3d 317, 339 (Tex. Crim. App. 2010). To trigger law enforcement's duty to terminate the interrogation, a defendant's request for counsel must be clear, and the police are not required to attempt to clarify ambiguous remarks. Davis v. U.S, 512 U.S. at 461- 62; Davis v. State, 313 S.W.3d at 339. Whether a statement referring to a lawyer constitutes a clear request for counsel depends on the statement itself and the totality of the circumstances surrounding the statement. Davis, 313 S.W.3d at 339. The test is objective: whether the defendant articulated his desire to have counsel present sufficiently clearly that a reasonable police officer in the circumstances would understand the statement to be a request for an attorney. Id.
When the translator gave appellant his first Miranda warning, he stated that he did not understand. The translator read the warning again, and then asked appellant whether he understood his rights. The following discussion ensued:
APPELLANT : If I have a way to pay to get an attorney [I] will or if [I] don'tAppellant was provided a Miranda card written in Spanish. Detective Williams told appellant to take his time and the video reflects that appellant held the card in his hands and took a couple of minutes to read it. When appellant completed his reading, the following exchange occurred:
[I]'ll get help?
DETECTIVE WILLIAMS: You can do that that's fine but I have a few questions and I want to give you a chance to tell your side of the story. Do you want to talk to me?
APPELLANT: Yes, because [I] want the evidence of why [I] have been
detained.
DETECTIVE WILLIAMS: We can talk about that but you first need to tell
me that you understood your rights and that you want to talk to me.
APPELLANT: Truth is I don't understand.
DETECTIVE WILLIAMS: Do you want to read them?
APPELLANT: Yes [if they] are in Spanish.
APPELLANT: What [I] am understanding is that . . . [I] shouldn't say anything, for example if someone steals something [I] shouldn't talk about that.
DETECTIVE WILLIAMS: It doesn't talk about that.
APPELLANT: [I] don't know if [I] speak if it will be wrong or right.
DETECTIVE WILLIAMS: You have a choice to talk to me and give me your side of your story, or you have a choice to remain silent and not talk to me . . . me without a lawyer. It is a choice that you have.
APPELLANT: That is the opportunity [you] are giving [me].
DETECTIVE WILLIAMS: Yes, I am giving you an opportunity to talk to me.
APPELLANT: Oh okay. [I] didn't exactly understand. Yes.
Detective Williams testified that she engaged in the above exchange to clarify appellant's rights. Appellant now claims the statements "man should not speak if he steals something," and "if he has a way to pay to get an attorney if not he will get help with an attorney" were inarticulate attempts to invoke his right to silence and to counsel. We are not persuaded by this argument. Considered in context, the statements about which appellant complains were made during the time appellant endeavored to clarify his rights. Not every reference to an attorney constitutes an exercise of the right to counsel. See State v. Gobert, 275 S.W.3d 888, 892-93 n. 17 (Tex. Crim. App. 2009). Under these circumstances, we conclude that neither of the two statements constitute an unambiguous or unequivocal assertion of the right to remain silent or the right to counsel.
Finally, appellant complains that his waiver was not knowing or intelligent because he is a Spanish speaker with only a sixth grade education. When the trial court ruled on appellant's motion to suppress, the court made the following oral findings:
Appellant also summarily asserts that he was not advised of his right to terminate the interview. Even if we assume that this issue is adequately briefed, the record reflects otherwise. Both Detective Williams and the translator testified that the Miranda card appellant was given to read advised him of his right to terminate the interview.
The Court did, in fact . . . watch the entire videotape and specifically remembers [Appellant] being told his rights, and then when he indicated that he didn't understand, then being allowed to read his rights in Spanish. And then once he had finished reading his rights in Spanish, there was a dialogue, including the officer clarifying, you have a choice, that type of language, and then the defendant saying, okay, I understand now. So based upon that, the Court is not - is going to deny the Defense's Motion to Suppress the statement and we can proceed . . . .
[T]he Court also mak[es] note that several times the detective also stated to [appellant] that he could choose to talk to her or not and wait and talk to an attorney. So he understood-that was reiterated that he had the right to terminate the interview.
The record supports the trial court's conclusion. At the beginning of the interview, Detective Williams determined that appellant understood and could read Spanish. Appellant not only responded to questioning in Spanish, but often provided answers to Detective Williams in English. Appellant never suggested he had any difficulty understanding the translator. In response to Detective Williams' questioning, appellant explained how he had abused the child and said he did not know why he had done it and that he regretted it. There is nothing to indicate appellant did not understand the consequences of making his statement. Therefore, viewing appellant's alleged limitations in the totality of the circumstances, we conclude appellant's statement was given freely and voluntarily with an understanding of his rights and the consequences of giving his statement. Therefore, the trial court did not err in admitting appellant's statements into evidence. Appellant's second and third issues are overruled.
Midstream Warnings
Although he received Miranda warnings before the statement was made, appellant contends his recorded statement was inadmissible because the statement was made as a result of a prohibited "question-first" interrogation technique. Specifically, appellant complains that the detective's pre-Miranda questioning was calculated to elicit incriminating information concerning his proximity to the child.
A "question-first" interrogation technique consists of officers interrogating a suspect without providing Miranda warnings and obtaining a confession; then, after the inculpatory statements are made, officers provide Miranda warnings and obtain a waiver of the warnings. See Missouri v. Seibert, 542 U.S.600, 604-05 (2004). Officers then have the suspect repeat the inculpatory statements to cure the lack of Miranda warnings. See id at 605. Such midstream warnings are impermissible. Id. at 601.
The failure to give timely Miranda warnings typically results in the prosecution being required to forfeit the use of any statement obtained during the interrogation during its case- in-chief. Seibert, 542 U.S. at 608; Martinez, 272 S.W.3d at 620. But not every violation of Miranda requires suppression of the evidence obtained; evidence is admissible when the central concerns of Miranda are not likely to be implicated and when other objectives of the criminal justice system are best served by its introduction. Martinez, 272 S.W.3d at 624. A suspect who has once responded to unwarned yet uncoercive questioning is not thereby disabled from waiving his rights and confessing after he has been given the requisite Miranda warnings. Oregon v. Elstad, 470 U.S. 298, 318 (1985).
The Siebert decision concerning mid-stream warnings is a plurality decision. Rather than adopt the opinion of the plurality, the Texas Court of Criminal Appeals elected to adopt Justice Kennedy's concurrence. According to the Court, the concurrence is preferable "because it is narrower in scope than the plurality opinion and applies only to two-step interrogations involving deliberate police misconduct." Carter v. State, 309 S.W.3d 31, 36 (Tex. Crim. App. 2010). Thus, under the jurisprudence of this state, the central question when determining the admissibility of post-Miranda warning confessions made after Miranda violations is whether the evidence shows that the officer deliberately employed a two-step "question first, warn later" interrogation technique to circumvent the suspect's Miranda protections. Id. at 36. Because the question of whether the interrogating officer deliberately employed such a technique "will invariably turn on the credibility of the officer's testimony in light of the totality of the circumstances surrounding the interrogation," a factual finding regarding the officer's credibility is entitled to "highly deferential review." Id. at 40. The video recording reflects that in addition to preliminary questions about his address, phone number, and place of employment, Detective Williams asked appellant if his wife babysat for children other than the victim, how often she cared for the victim, appellant's work schedule and whether he ever watched the children when his wife was busy. Detective Williams also inquired about appellant's work schedule and whether he was around the children at lunch, before and after work, or on his days off. These questions were not repeated after appellant was given his Miranda warning, and appellant did not confess until after the warning was given. Detective Williams testified that her questions were intended to gather "just basic information."
The trial court did not make a specific finding as to whether Detective Williams deliberately employed a "question-first, warn later" technique. When the record is silent on the reasons for a trial court's ruling on a motion to suppress, we imply the necessary fact findings in support of the trial court's rulings if the evidence, viewed in the light most favorable to the trial court's ruling, supports these implied fact findings. State v. Kelly, 204 S.W.3d 808, 818-19 (Tex. Crim. App. 2006). Therefore, we defer to the trial court's implied finding concerning the credibility of Detective Williams and her motives. Although the preferred course of conduct is to advise a suspect of his rights prior to initiating questioning, there is no evidence here of deliberate police misconduct designed to circumvent Miranda.
When a two-step questioning tactic has not been deliberately employed, "a suspect who has once responded to unwarned yet uncoercive questioning is not thereby disabled from waiving his rights and confessing after he has been given the requisite Miranda warnings." Elstad, 470 U.S. at 318. When the first statement is unwarned but not coerced, the admissibility of any subsequent statement turns on whether it is knowingly and voluntarily made. Id. at 309; Carter, 309 S.W.3d at 32. Here, appellant does not contend that his responses to the pre-Miranda questions were coerced or constitute an incriminating statement. And we have already concluded appellant's post-Miranda statements were knowingly and voluntarily made. Therefore, because of the absence of evidence of deliberate police misconduct and the voluntary nature of appellant's post-Miranda statements, we conclude the trial court did not err in admitting appellant's statements into evidence. Appellant's first issue is therefore overruled.
Having resolved all of appellant's issues against him, we affirm the trial court's judgment.
MARTIN RICHTER
JUSTICE
Do Not Publish
Tex. R. App. P. 47
110009F.U05
Court of Appeals Fifth District of Texas at Dallas JUDGMENT
JOSE SANTOS CHAVEZ, Appellant
V.
THE STATE OF TEXAS, Appellee
No. 05-11-00009-CR
Appeal from the Criminal District Court No. 3 of Dallas County, Texas. (Tr.Ct.No. F10- 12961-J).
Opinion delivered by Justice Richter, Justices O'Neill and Lang-Miers participating.
Based on the Court's opinion of this date, the judgment of the trial court is AFFIRMED.
Judgment entered May 31, 2012.
MARTIN RICHTER
JUSTICE