Opinion
No. 05-18-01269-CR
03-30-2020
BRYAN MARTINEZ, Appellant v. THE STATE OF TEXAS, Appellee
On Appeal from the 22nd District Court Hays County, Texas
Trial Court Cause No. CR-17-0023
MEMORANDUM OPINION
Before Justices Whitehill, Osborne, and Nowell
Opinion by Justice Whitehill
A pivotal question in this Fifth Amendment right to remain silent case is whether a defendant's re-engaged discussion with the police almost immediately after terminating an interview required the police to repeat their Miranda warnings. Based on this case's facts, we conclude that the trial court did not err by denying the defendant's suppression motion.
A jury convicted appellant Bryan Martinez of murder and sentenced him to life in prison. In two issues, appellant argues (i) the trial court erred by denying his motion to suppress his recorded interview with detectives and (ii) the trial court erred by admitting into evidence a jailhouse note allegedly written by appellant's co-conspirator. We overrule appellant's two issues and affirm.
I. BACKGROUND
A. Facts
Trial evidence supported the following facts.
1. The Murder
During the night of October 1-2, 2015, Issac Olvera was fatally shot in an apartment in San Marcos, Texas.
Olvera's girlfriend Bernadette Gonzales testified that on the night in question she, Olvera, and others were hanging out together at the Palms Apartments. They were mostly hanging out outside Trevor Toomire's apartment.
At some point, Gonzales learned that someone was coming to buy drugs. Olvera, Toomire, and two other men were inside the apartment, and Gonzales was sitting in a chair just outside, when one African-American man and two Hispanic men arrived and started to enter the apartment. According to Gonzales, the three men had not completely entered the apartment when she heard one gunshot. Then the three men left. Gonzales and others entered the apartment, and Gonzales saw Olvera lying on his stomach and blood all over the floor. She then called 911.
Ivan Doyle testified that he brought the marijuana to be sold in the transaction and was present in the apartment during the shooting. He saw that one of the men who entered the apartment had a shotgun "already pulled out and pointed." Olvera "reached over to punch him and got shot."
The police arrived at around 2:30 a.m. and found that Olvera had been shot in the abdomen. Olvera was conscious and told the police that the shooter was "Jonathan," a Hispanic man with tattoos on his head. Olvera died en route to a hospital.
2. The Investigation and Appellant's Recorded Statements
The police investigation yielded two suspects: Jonathan Guia and appellant. Appellant was arrested on October 2, 2015, and Guia turned himself in four days later. A third person allegedly involved in the attempted robbery, Lamount "Monty" Harvey, was later arrested.
On October 6, 2015, appellant gave the police the recorded interview at issue. Detectives Tiffany Williams, Duwayne Poorboy, and Chris Tankersley testified at the motion to suppress hearing about that statement.
Williams, Poorboy, and Tankersley interviewed appellant at the jail. Williams made an audio recording of the interview on a portable recorder. She advised appellant of his rights under Miranda v. Arizona, 384 U.S. 436 (1966), and the Texas Code of Criminal Procedure, and appellant agreed to waive those rights. The interview lasted about fifty minutes.
At first, appellant said that he loaned his gun to his friend, Guia. But later he acknowledged being present at the scene by saying, "I had the money, and I was walking in with them;" "Those two dudes, I barely was—I was outside the door;" and "I heard the gunshot and I ran." He further said that Guia fired the shot.
About twenty-five minutes into the interview, Williams pressed appellant to say what his intent was and asked him, "What am I looking at?" Appellant said, "An accident. I'm good. I'm gonna go." Another detective then said, "Ready to go? Okay."
According to Williams, everyone then stood up, walked to the door, and waited for a jailer to come open it. Williams testified that as they were waiting and as the door was opening, appellant began to cry, looked at Poorboy, and asked Poorboy if he could help him.
Poorboy testified that appellant said, "Sir? Help me out, sir." So everyone sat down again, and the interview resumed.
The audio recording did not pick up what appellant said.
About forty seconds elapsed between the time appellant said, "I'm good, I'm gonna go," and when he asked Poorboy for help.
After the interview resumed, the following exchanges occurred:
Williams: What was the plan, Bryan?
Appellant: We were gonna go take it [the marijuana].
Williams: Who is we?
Appellant: Me, Jonathan, Monty. That's it.
. . . .
Poorboy: So what happened in there? You say it was an accident, what happened in there?
Appellant: It slipped.
. . . .
Poorboy: So it just went off or did the guy try to get it from you?
Appellant: Grabbed it. And it went off. It wasn't my fault.
. . . .
Williams: Okay, so in walks Jonathan. What's said?
Appellant: . . . Guess one of the dudes seen him [Guia] when he was walking with it [a gun] hanging like that, and he got up, and I was gonna show mine, he grabbed mine, it just went off.
. . . .
Appellant: I thought it [appellant's shotgun] wasn't [cocked]. My intent was to go show it, flash it around.
B. Procedural History
In 2017, a Hays County grand jury indicted appellant for capital murder.
Appellant moved to suppress his recorded statements. After a hearing, the trial judge denied the motion and signed fact findings and legal conclusions.
Appellant pled not guilty, and the case was tried to a jury. The admitted evidence included a slightly redacted audio recording of appellant's interview and a jailhouse note Guia purportedly wrote to Harvey.
The jury charge allowed the jury to find appellant guilty of capital murder, guilty of murder, or not guilty; the jury found him guilty of murder. The jury then assessed appellant's punishment at life imprisonment and a $10,000 fine, and it further found that appellant used or exhibited a deadly weapon during the offense or immediate flight from committing it. The trial judge signed a judgment consistent with the verdict.
Appellant timely appealed, and the Texas Supreme Court transferred his appeal from the Austin Court of Appeals to this Court. See TEX. R. APP. P. 41.3 (precedent in transferred cases).
II. ANALYSIS
A. Issue One: Did the trial court commit reversible error by denying appellant's motion to suppress his recorded statements?
No. Under all the facts and circumstances—particularly appellant's initiating further conversation shortly after invoking the right to remain silent—the trial court did not err by denying appellant's Fifth Amendment moored suppression motion.
1. Standard of Review
We review a suppression motion ruling for abuse of discretion. We affirm if the ruling is reasonably supported by the record and is correct under any applicable legal theory. Amador v. State, 275 S.W.3d 872, 878-79 (Tex. Crim. App. 2009).
When the trial court makes fact findings, we uphold the findings if the evidence, viewed in the light most favorable to the trial court's ruling, supports them. State v. Kelly, 204 S.W.3d 808, 818 (Tex. Crim. App. 2006).
2. Applicable Law
The Fifth Amendment's guarantee against self-incrimination applies to the states. Ramos v. State, 245 S.W.3d 410, 418 (Tex. Crim. App. 2008). Under the Fifth Amendment, law enforcement officials must inform a person in custody before questioning him that he has the right to remain silent and that any statement he makes may be used against him in court. Id. If the person indicates that he wishes to remain silent, the interrogation must cease. Id. If the person makes statements after invoking his right to remain silent, those statements are inadmissible unless the person's right to remain silent was "scrupulously honored." Id. (quoting Michigan v. Mosley, 423 U.S. 96, 104 (1975)).
Mosley identified five factors relevant to determining whether a person's right to remain silent was scrupulously honored:
(1) whether the suspect was informed of his right to remain silent prior to the initial questioning; (2) whether the suspect was informed of his right to remain silent prior to the subsequent questioning; (3) the length of time between initial questioning and subsequent questioning; (4) whether the subsequent questioning focused on a different crime; and (5) whether police honored the suspect's initial invocation of the right to remain silent.Maestas v. State, 987 S.W.2d 59, 62 (Tex. Crim. App. 1999) (discussing Mosley). The third factor in particular is "meant to guard against abuses in subsequent questioning." Id. at 63.
Other relevant facts and circumstances can also be considered, such as whether (i) the person was coerced, threatened, or promised anything in exchange for talking with officers and (ii) the person was given access to necessities such as food, water, and restroom facilities. See id. at 64.
The State, however, asserts that the Mosley factors don't apply when an accused initiates conversation about the offense after invoking his right to remain silent. One case appears to support that premise: Trevino v. State, 815 S.W.2d 592 (Tex. Crim. App. 1991), rev'd on other grounds sub nom. Trevino v. Texas, 503 U.S. 562 (1992) (per curiam).
In Trevino, the defendant invoked his right to remain silent. He was then arrested and informed of his rights, and several hours passed without interrogation. As he was being taken for fingerprinting, he asked a detective what was going to happen. When the detective said that it was up to the defendant, he immediately began talking about the crime. The detective stopped him and again informed him of his rights, and the defendant gave a confession. Id. at 618-19. The trial court admitted the confession into evidence, and the defendant challenged this ruling on appeal.
The court of criminal appeals succinctly rejected his argument:
The record shows that appellant's request to terminate the questioning was "scrupulously honored." Appellant clearly initiated the conversation with [detective] Allsbrook. Thus no violation of appellant's rights occurred when he gave his confession. The trial court properly admitted appellant's confession into evidence.Id. at 619 (citations omitted). Thus, Trevino indicates that no Fifth Amendment violation occurs if a suspect invokes his right to remain silent, the State honors that right, and the suspect then initiates conversation about the offense and makes statements that the State later seeks to admit at trial.
3. Did the State scrupulously honor appellant's right to remain silent?
Yes. We conclude that appellant's argument fails under the multi-factor Mosley test.
Whether appellant unambiguously invoked his right to remain silent is a threshold question. See Lovings v. State, No. 03-14-00088-CR, 2016 WL 1084690, at *2-6 (Tex. App.—Austin Mar. 17, 2016, pet. ref'd) (mem. op., not designated for publication). But no one disputes that he did so here, and we assume without deciding that he did.
To begin, we note the trial court's key finding that appellant, "after terminating the interview, asked for Detective Poorboy's help, thereby reinitiating the interview." The record supports this finding, and appellant does not challenge it.
The first Mosley factor favors the State because it informed appellant of his right to remain silent before the interview began. See Maestas, 987 S.W.2d at 62.
Absent other facts present in this case, the second and third factors would favor appellant because (i) the State did not remind appellant of his right to remain silent before resuming the questioning and (ii) only about forty seconds elapsed between the time appellant invoked his right to remain silent and when questioning resumed. See id.
But the second factor does not favor appellant here because, although the State did not repeat the warnings to appellant, it had given him the warnings only twenty-five minutes earlier.
Moreover, the detectives immediately stopped the interview and called for a jailer to open the door when appellant invoked his right to remain silent, making it manifest to appellant that he did not have to speak to them further. See Dozier v. Commonwealth, No. 0812-07-1, 2008 WL 2725836, at *5 (Va. Ct. App. July 15, 2008) ("Although appellant was not re-Mirandized . . . the manner and context in which appellant initiated the conversation proved he knew his rights and intended to waive them."); People v. Hill, No. 249980, 2004 WL 2387665, at *4 (Mich. Ct. App. Oct. 26, 2004) (per curiam) (unnecessary to repeat Miranda warnings because "only a matter of minutes passed" between Miranda warnings and defendant's changing his mind about speaking).
And because appellant, not the detectives, initiated the further conversation, the third factor also weighs in the State's favor. See Urias v. State, No. 08-01-00355-CR, 2006 WL 2516361, at *6 (Tex. App.—El Paso Aug. 31, 2006, pet. ref'd) (not designated for publication) (eight-minute gap between initial and subsequent questioning weighed in State's favor because appellant initiated the conversation). As noted above, the third factor is particularly intended to prevent abuses in subsequent questioning, Maestas, 987 S.W.2d at 63, and there is no hint of abuse here.
The fourth factor favors appellant because the continued questioning focused on the same crime.
But the fifth factor supports the State because the record shows that the detectives immediately stopped questioning appellant when he invoked his right to remain silent and did not say or do anything to prompt him to speak further.
Thus, the trial court correctly concluded that the State scrupulously honored appellant's right to remain silent and did not err by denying his motion to suppress. Ramos is distinguishable because the suspect in that case did not initiate any further conversation with the police after invoking his right to remain silent. See 245 S.W.3d at 418-19.
Accordingly, we overrule appellant's first issue.
B. Issue Two: Did the trial court commit reversible error by admitting the jailhouse note?
No. The record supports the note's admissibility as a statement against interest under Texas Rule of Evidence 803(24) because the note tended to expose the author to criminal liability and was supported by corroborating circumstances clearly indicating its trustworthiness. Moreover, any error was harmless.
1. Standard of Review
We review a ruling admitting evidence for abuse of discretion. Id. at 417-18. Thus, we affirm if the ruling is reasonably supported by the record and is correct under any applicable legal theory. Id. at 418.
2. Relevant Facts
In 2016, both Guia and Harvey (the two men that appellant accompanied to the drug transaction) were incarcerated at the same jail. A jail employee testified that he found a piece of paper on the floor and that Guia asked him to pass the paper to Harvey. Instead, the employee turned it in to his superiors, and it was a handwritten note stating:
HARVEY
Was good boy, I'm dropin a couple lines to lace you up my attorney told me the laws about to pick you up again on murder don't stress it tho they dont got shit just dont believe anything they say bb already owned up if you hold yours we walk bb is capital now if you talk we get capital to Dont hear no Evil, Dont see no Evil, Dont speak no evil.
In appellant's recorded interview discussed above, he said that his nickname was Baby Bear.
During appellant's trial, the State advised the trial court and appellant's counsel that the State intended to offer the note into evidence as a statement against interest. The next day, the State offered the note into evidence through the jail employee who found it. Appellant made several objections to the note including hearsay. The court overruled appellant's objections and admitted the note into evidence.
3. Applicable Law
Appellant's sole appellate argument is that the jailhouse note is inadmissible hearsay because it does not satisfy the hearsay rule's coconspirator exception. See TEX. R. EVID. 802 (hearsay is inadmissible as a general rule).
Generally, hearsay is a statement that is (i) not made while the declarant is testifying at the current trial or hearing and (ii) offered to prove the truth of the matter asserted in the statement. Id. 801(d). But a statement is not hearsay if it is offered against an opposing party and it was made by the party's coconspirator during and in furtherance of the conspiracy. Id. 801(e)(2)(E).
The State does not dispute that the jailhouse note was hearsay, but it does not rely on Rule 801(e)(2)(E) to support its admissibility. Rather, it argues that the note was a statement against interest admissible under Rule 803(24). That rule provides that hearsay is not excluded if it is a statement that
(A) a reasonable person in the declarant's position would have made only if the person believed it to be true because, when made, it . . . had so great a tendency . . . to expose the declarant to civil or criminal liability . . . andId. 803(24).
(B) is supported by corroborating circumstances that clearly indicate its trustworthiness, if it is offered in a criminal case as one that tends to expose the declarant to criminal liability.
As to the first element, statements that are directly against the declarant's interest and statements that share the blame with others satisfy the first element, but blame-shifting statements that minimize the declarant's culpability do not. Walter v. State, 267 S.W.3d 883, 896 (Tex. Crim. App. 2008).
As to the second element, sufficient corroboration, we may consider (i) the declaration's timing, (ii) its spontaneity, (iii) the relationship between the declarant and his addressee, and (iv) any independent corroborative facts. Woods v. State, 152 S.W.3d 105, 113 (Tex. Crim. App. 2004).
4. Was the note admissible as a statement against interest?
Yes, the record supports both Rule 803(24) elements.
As to the first Rule 803(24) element, the note had a sufficient tendency to expose the declarant, Guia, to criminal liability. Specifically, the note says that "bb," which the jury could infer meant appellant based on other evidence that appellant's nickname was "Baby Bear," had "owned up" to something and was being accused of a capital crime. And the note urges Harvey not to talk because if he does both he and Guia will "get capital" as well. This is a "blame-sharing" statement that inculpates both Guia and Harvey in bb's crime; it does not attempt to shift blame or minimize Guia's role in the crime. Thus, the note satisfies Rule 803(24)'s first prong. See Walter, 267 S.W.3d at 896 ("blame-sharing" statements are admissible under Rule 803(24) if properly corroborated).
Furthermore, the corroboration element is satisfied. As for timing, Guia attempted to pass the note to Harvey about four months after the offense. It appears to have been a spontaneous attempt to communicate with Harvey. The note's gist, that Guia and Harvey would be exposed to criminal liability like appellant if Harvey confessed, was corroborated by appellant's recorded statements that he, Guia, and Harvey planned the robbery that resulted in Olvera's shooting. And Olvera's statement in extremis that a Hispanic male named "Jonathan" shot him further corroborated the note's implication that Guia was involved in the crime. These are sufficient corroborating circumstances to "clearly indicate" the statements' trustworthiness. See TEX. R. EVID. 803(24)(B).
We conclude the trial court did not abuse its discretion by overruling appellant's hearsay objection.
5. Any error in admitting the note was harmless.
Nonconstitutional error, such as admitting hearsay evidence, is harmless and must be disregarded if it did not affect appellant's substantial rights. See TEX. R. APP. P. 44.2(b). We affirm if, after examining the whole record, we have fair assurance that the error did not have a substantial and injurious effect or influence in determining the jury's verdict. See Motilla v. State, 78 S.W.3d 352, 355 (Tex. Crim. App. 2002).
The note suggested that Guia, Harvey, and appellant all participated in the same criminal transaction. But appellant said the same thing in his recorded interview, which was properly admitted into evidence. Thus, any error in admitting the note was harmless. See Doggett v. State, 530 S.W.2d 552, 557 (Tex. Crim. App. 1975) ("As a general rule a judgment will not be reversed for the erroneous admission of improper evidence if the same facts were proved by other proper testimony.").
For this reason as well, we overrule appellant's second issue.
III. DISPOSITION
For the foregoing reasons, we affirm the trial court's judgment.
/Bill Whitehill/
BILL WHITEHILL
JUSTICE Do Not Publish
TEX. R. APP. P. 47.2(b)
181269F.U05
JUDGMENT
On Appeal from the 22nd District Court, Hays County, Texas
Trial Court Cause No. CR-17-0023.
Opinion delivered by Justice Whitehill. Justices Osborne and Nowell participating.
Based on the Court's opinion of this date, the judgment of the trial court is AFFIRMED. Judgment entered March 30, 2020.