Opinion
NO. 01-14-00579-CR
06-11-2015
MAYRA FLORES, Appellant v. THE STATE OF TEXAS, Appellee
On Appeal from the 339th District Court Harris County, Texas
Trial Court Case No. 1280239
MEMORANDUM OPINION
Appellant, Mayra Flores, was charged by indictment with murder. The jury found her guilty, and the trial court assessed punishment at 25 years' confinement. In one issue, Appellant argues the trial court abused its discretion by admitting the two audio recordings of her custodial interrogation.
We affirm.
Background
On October 3, 2010, Appellant and her boyfriend, Francisco Castellano, were arguing. In the course of the argument, Appellant stabbed Castellano, ultimately killing him. Officers W. Kuhlman and R. Hunter interrogated Appellant. Officer Kuhlman recorded the interview. Thirty-six minutes into the interrogation, the recording device stopped. About 20 minutes after that, Officer Kuhlman began recording again. The interrogation lasted for another 53 minutes before the recording device stopped again.
At trial, Appellant sought to suppress the admission of the two audio recordings, claiming the recording device cutting off between the first and second recording prevented the State from establishing the admissibility requirements for both recordings. The trial court overruled the objection and admitted both recordings.
Motion to Suppress Interrogation Audio Recordings
In her sole issue on appeal, Appellant argues the trial court abused its discretion by admitting the two audio recordings of her custodial interrogation.
A. Standard of Review
We review a trial court's denial of a motion to suppress under a bifurcated standard of review. Turrubiate v. State, 399 S.W.3d 147, 150 (Tex. Crim. App. 2013). We review the trial court's factual findings for abuse of discretion and review the trial court's application of the law to the facts de novo. Id. Almost total deference should be given to a trial court's determination of historical facts, especially those based on an evaluation of witness credibility or demeanor. Gonzales v. State, 369 S.W.3d 851, 854 (Tex. Crim. App. 2012). At a suppression hearing, the trial court is the sole and exclusive trier of fact and judge of the witnesses' credibility and may choose to believe or disbelieve all or any part of the witnesses' testimony. Maxwell v. State, 73 S.W.3d 278, 281 (Tex. Crim. App. 2002); State v. Ross, 32 S.W.3d 853, 855 (Tex. Crim. App. 2000).
Where, as here, a trial judge does not make explicit findings of fact, we review the evidence in the light most favorable to the trial court's ruling. Walter v. State, 28 S.W.3d 538, 540 (Tex. Crim. App. 2000). We will defer to the trial court's fact findings and not disturb the findings on appeal unless the trial court abused its discretion in making a finding not supported by the record. Cantu v. State, 817 S.W.2d 74, 77 (Tex. Crim. App. 1991).
B. Analysis
Appellant's objection to the two audio recordings is based on article 38.22 of the Texas Code of Criminal Procedure. See TEX. CODE CRIM. PROC. ANN. art. 38.22 (Vernon Supp. 2014). Section three of article 38.22 establishes certain requirements for the admissibility of the recording of a custodial interrogation. Id. art. 38.22, § 3(a). One of the requirements is "the recording device was capable of making an accurate recording, the operator was competent, and the recording is accurate and has not been altered." Id. art 38.22, § 3(a)(3). Appellant argues that, because the recording device stopped recording and left a 20-minute portion of the interrogation unrecorded, the recording of the interrogation is not accurate.
As an initial matter, we disagree with Appellant's characterization of the length of time Appellant and Officers Kuhlman and Hunter talked after the first recording stopped. Appellant asserts in her brief that they continued to talk for 20 minutes after the recorder stopped, that they discussed the events surrounding Castellano's death, and that she made exculpatory statements that are not otherwise in the recordings. While Appellant testified to these facts during her examination and cross-examination at trial, this testimony was not before the trial court at the time Appellant raised the motion to suppress earlier in the trial. Because this evidence was not before the trial court, it is not part of our appellate review. See Weatherred v. State, 15 S.W.3d 540, 542 (Tex. Crim. App. 2000) (holding appellate court reviews trial court's ruling on admissibility of evidence "in light of what was before the trial court at the time the ruling was made").
The only description of events between the two recordings that was before the trial court at the time of the ruling comes from the second recording. At the start of the recording, Officer Kuhlman states that, after the first recording stopped, everyone stopped talking, Appellant took a restroom break, and everyone got something to drink. Appellant was present when Officer Kuhlman made that statement and did not make any corrections to those statements. After Officer Kuhlman read Appellant her statutory warning again, Officer Hunter identified the last topic discussed when they "left off", which concerned when Appellant and Castellano had kids. That matched what Officer Hunter and Appellant were discussing at the time the first recording stopped.
In Quinones, the defendant claimed his recorded statement was inadmissible because, in part, "the tape had been altered by [a] fifteen second tapeover." Quinones v. State, 592 S.W.2d 933, 943 (Tex. Crim. App. 1980). The Court of Criminal Appeals held that "any alteration in a tape [does not] render[] the tape per se inadmissible. If the alteration is accidental and is sufficiently explained so that its presence does not affect the reliability and trustworthiness of the evidence, the recording can still be admitted." Id. at 944.
Quinones was decided under a framework that predates article 38.22. See id. at 943 (citing Edwards v. State, 551 S.W.2d 731, 733 (Tex. Crim. App. 1977)). Since the enactment of article 38.22, however, the Court of Criminal Appeals has confirmed that inadvertent anomalies that do not affect the overall reliability of the recording do not constitute the impermissible sort of alteration contemplated by section 3 of article 38.22. See Maldonado v. State, 998 S.W.2d 239, 244-46 (Tex. Crim. App. 1999) (citing CRIM. PROC. art. 38.22, § 3; Quinones, 592 S.W.2d at 944); see also Martines v. State, 371 S.W.3d 232, 244 (Tex. App.—Houston [1st Dist.] 2011, no pet.) (citing Maldonado and Quinones for same proposition).
In Maldonado, the defendant complained of a three-second and a one-second portion of the recording of his statement that had been "over-recorded." Id. at 244. The Court of Criminal Appeals noted there was no evidence that the over-recordings were intentional and they did not occur during his admission to killing the victim. Id. at 244-45. Based on this, the court held, "There is adequate evidence here to support the . . . conclusion that the anomalies were merely inadvertent and did not affect the overall reliability of the tape." Id. at 245.
The same is true here. The evidence in the record at the time of the trial court's ruling established that the tape stopped recording on accident, that the parties stopped talking after the recording stopped, and that the parties were discussing incidental matters at the time the recording stopped. We hold this does not undermine the reliability of the recording. See Maldonado, 998 S.W.2d at 245-46; Quinones, 592 S.W.2d at 944.
We overrule Appellant's sole issue.
Conclusion
We affirm the judgment of the trial court.
Laura Carter Higley
Justice
Panel consists of Chief Justice Radack and Justices Higley and Massengale. Do not publish. TEX. R. APP. P. 47.2(b).
See TEX. PENAL CODE ANN. § 19.02(b) (Vernon 2011).