Opinion
No. 08-19-00072-CR
10-30-2020
ELIZABETH MUNOZ, Appellant, v. THE STATE OF TEXAS, Appellee.
Appeal from the 171st District Court of El Paso County, Texas (TC# 20140D02421) OPINION
The jury convicted Appellant Elizabeth Munoz of the offense of murder, a first-degree felony. TEX. PENAL CODE ANN. § 19.02(b) (1-2). After finding the notice of enhancement to be true, the jury assessed Appellant's punishment at confinement for a term of forty-five years in the Institutional Division of the Texas Department of Criminal Justice. The trial court sentenced Appellant accordingly and certified her right to appeal.
Appellant presents five issues on appeal. In her first two issues, Appellant asserts that the trial court erred when it admitted in evidence her oral and written statements to police. In her last three issues, Appellant complains of charge error. We affirm the trial court's judgment.
BACKGROUND AND PROCEDURAL HISTORY
Because the issues on appeal involve matters relating to the admission of Appellant's recorded and written statements as well as the trial court's instructions to the jury regarding those statements, we restrict our discussion of the evidence at trial relevant to those issues.
Among the multiple witnesses who testified at trial were two employees of the Housing Authority of El Paso. On March 1, 2014, Hector Del Palacios and Christian Balderrama were performing repairs at the Alvarez apartment complex. A young Hispanic man spoke with the workers and asked Del Palacios whether repairs would be made to his apartment. Afterwards, Del Palacios saw a Hispanic woman with tattoos accompany the young man from the apartment. Balderrama noticed that the woman had a green vine tattoo on her left hand. That afternoon, Del Palacios and Balderrama observed the woman pull the man down from a fence, and the man fell. Del Palacios could not hear the conversation, but it appeared that the man and woman he had seen were arguing, as they walked away together. Del Palacios did not observe the man strike the woman and did not hear the woman ask for help or declare that the man was beating her.
Later that day, when Del Palacios and Balderrama were leaving the apartment complex in a truck, Balderrama saw a man face down on the ground. At first, he did not see any blood. Balderrama jumped out of the truck and observed that the woman who he had seen earlier was "over [the face-down man]." When the woman saw Balderrama, she ran down the street, entered a rusted-brown SUV, and left. The woman did not ask for anyone to call 911.
Del Palacios exited the truck and saw that the man who had spoken with him earlier in the day was bleeding from the left side of his neck. Del Palacios did not see the female, and while Balderrama asked another worker to get rags to help the man, Del Palacios called 911. In a photo lineup, Del Palacios identified Appellant as the woman he had seen earlier in the day with the man. Balderrama identified a different individual as the woman he saw near the man.
On March 1, 2014, El Paso Fire Department firefighter and paramedic Alejandro Torres was a member of one of two crews that were dispatched to a stabbing at the Alvarez apartment complex. By the time Torres arrived, the other team had been performing cardio-pulmonary resuscitation on Raul Robles, who was located on the ground outside of the apartments and was in a supine position with a stab wound to the neck. Torres observed that Robles was not breathing and had no pulse, and he accompanied Robles in the ambulance when he was transported to the hospital. The medical examiner later determined that Robles died of sharp-force injuries to the neck. He cited the manner of death as homicide.
Detective John Armendariz of the El Paso Police Department also received a callout on March 1 referencing a murder at the Alvarez Apartments. Assigned to work as the on-scene detective, he gathered information from patrol officers. Eventually, he received information on a potential suspect which led him to a vehicle connected to Appellant. The next day, Detective Jose Ochoa of the El Paso Police Department located Appellant at a church, and after informing her that she was a suspect in Robles' murder, she agreed to speak with him at police headquarters.
At the outset of the audio-video-recorded statement, Ochoa advised Appellant that she was not under arrest but had been identified as a suspect in an incident involving her boyfriend, Raul Robles. Ochoa advised Appellant of her rights, among them the rights against self-incrimination, to remain silent, to have an attorney present and to advise her prior to and during questioning, and to terminate the interview at any time. Appellant acknowledged her rights, agreed to waive them, and spoke with Ochoa and Detective Pena. Appellant gave her account of what had taken place between her and Robles. While questioning Appellant, Ochoa and Pena informed her they had information from witnesses that caused them to question her account and her truthfulness.
Although an attempt had been made to record Appellant's oral statement, Ochoa learned, during a break in questioning, that the session before the break had not been fully captured and preserved. Ochoa testified that because of a glitch in the system, only two thirds of the questioning had been recorded. Ochoa returned to the interview room and advised Appellant of the glitch in the system. He told Appellant he wanted to ask additional questions or re-ask certain questions that were missed as far as the recording that took place. Ochoa testified that, "At that point she realized that there was - the room was being recorded. She obviously did not know that we were recording." Appellant then opted out of being recorded but agreed to provide a written statement typed out in paper form. Appellant's constitutional rights are included on the face of her written statement, and her initials are present at the beginning and end of the written recitation of those rights. Appellant was permitted to read and amend the contents of her final written statement before she signed it. In her written statement, Appellant admitted that she had used a tattooing tool to stab Robles twice in the neck before she left the scene of the incident.
ANALYSIS
I. Admission of Statements to Police
A. Recorded Oral, Non-Custodial Statement
Article 38.22 is known as the Texas Confession Statute. See Oursbourn v. State, 259 S.W.3d 159, 171 (Tex. Crim. App. 2008); TEX. CODE CRIM. PROC. ANN. art. 38.22. Section 3(a)(3) of Article 38.22 provides in part that no oral language statement of an accused made as a result of custodial interrogation shall be admissible against the accused in a criminal proceeding unless the recording device was capable of making an accurate recording, the operator was competent, and the recording is accurate and has not been altered. TEX. CODE CRIM. PROC. ANN. art. 38.22, § 3(a)(3). Section 3 applies to custodial interrogation statements and provides that "only 'warned and waived' statements may be admitted." TEX. CODE CRIM. PROC. ANN. art. 38.22, § 3; see Oursbourn, 259 S.W.3d at 171. Restated, "an accused's custodial-interrogation statement is not admissible unless, prior to making the statement, he received the warnings provided in Article 15.17 or Article 38.22, § 2(a) or § 3(a) (which incorporate the requirements of Miranda), and he knowingly, intelligently, and voluntarily waived those rights." Oursbourn, 259 S.W.3d at 171-72.
In her first issue, Appellant argues that the trial court erred in admitting her incomplete recorded statement at trial because it failed to comply with the requirements of Section 3(a)(3) of Article 38.22. Id. The State counters that Appellant has failed to preserve this issue for our review. We agree with the State.
To preserve a complaint for appellate review, the complaint must have been specific, timely, made on the record, and ruled on by the trial judge. TEX. R. APP. P. 33.1. The specificity requirement is met if the complaint made at trial was clear enough for the trial judge to understand what the complaining party wanted, why they were entitled to it, and to take corrective action. Lovill v. State, 319 S.W.3d 687, 691 (Tex. Crim. App. 2009); Pena v. State, 285 S.W.3d 459, 464 (Tex. Crim. App. 2009). We will not address an objection on appeal if it varies from the objection raised at trial. Clark v. State, 365 S.W.3d 333, 339 (Tex. Crim. App. 2012) ("The point of error on appeal must comport with the objection made at trial.").
i. Pretrial Procedural Background
In this case, Appellant filed a pretrial motion to suppress her "written and oral confessions or statements" to police. In support of her motion to suppress this evidence, Appellant globally referenced the U.S. Constitution, its Sixth and Fourteenth Amendments, and the Texas Code of Criminal Procedure. No portion of Appellant's written motion to suppress specifies non-compliance with Section 3(a)(3) of Article 38.22 of the Texas Code of Criminal Procedure as a basis for suppression. Clark, 365 S.W.3d at 339.
a. Hearing
During the hearing on the motion to suppress, defense counsel argued that Appellant had invoked her right to counsel during her recorded statement, had not knowingly and voluntarily understood or waived her rights, had terminated the interview, and had invoked her right to remain silent. Appellant did not seek suppression based on the fact that a portion of the oral recording was missing, and defense counsel mentioned the missing portion of the recording as part of his argument that police should have informed Appellant of her rights again at the outset of her written statement. The trial court granted Appellant's motion to suppress Appellant's written statement to police.
b. State's Appeal
The State appealed the trial court's suppression ruling, which we addressed in an unpublished opinion. See State v. Munoz, No. 08-16-00023-CR, 2018 WL 1517006, at *1 (Tex. App.—El Paso Mar. 28, 2018, no pet.) (not designated for publication). In that opinion, we concluded that the constitutional requirements of Miranda had been satisfied and that Appellant had not affirmatively invoked her right to counsel or her right to remain silent. Id., at *7-8, 11. We also concluded that Appellant's written statement was given in compliance with the requirements of Miranda and Section 2 of Article 38.22 of the Texas Code of Criminal Procedure, which differ. Id., at *12-13. We agreed that—once she gave inculpatory statements during the non-recorded portion of her interview—Appellant became the subject of a custodial interrogation. Id., at 11; see, e.g., Dowthitt v. State, 931 S.W.2d 244, 255-56 (Tex. Crim. App. 1996). We reversed the trial court's ruling on the motion to suppress and remanded the case to the trial court. Munoz, 2018 WL 1517006, at *13.
c. Law of the Case
Appellant did not seek discretionary review of our opinion in the first appeal of this case. We therefore consider our conclusions therein to be "the law of the case" that will govern the same issues in this subsequent appeal. See Ware v. State, 736 S.W.2d 700, 701 (Tex. Crim. App. 1987) (concluding that the resolution of issues addressing the validity of an affidavit and arrest warrant raised in an earlier appeal of the same case were subject to the law-of-the-case doctrine and, therefore, the resolution of those issues in the first appeal governed the disposition of the same issues on any subsequent appeal).
ii. Trial
When the State sought to admit Appellant's recorded oral statement at trial, defense counsel declared, "[S]ubject to the previous issues litigated, we object on that basis." The trial court overruled the objection. Our review of the record does not show that defense counsel objected to the admission of the oral recorded statement on the basis of Section 3(a)(3), specifically, or to Article 38.22, generally. TEX. CODE CRIM. PROC. ANN. art. 38.22, § 3(a)(3).
In addressing this issue, we are guided by the holding in Swain v. State, 181 S.W.3d 359, 365 (Tex. Crim. App. 2005). In that case, Swain filed a pretrial motion to suppress in which he generally argued that any statements he had made had been "obtained in violation of his right to counsel and his right against self-incrimination as guaranteed by U.S. Const. amends. V, VI, and XIV, and Tex. Const. art. I, §§ 10 and 19" and generally argued that his statements were inadmissible under Article 38.23. Id. At the hearing to suppress, Swain "simply objected that his statements were inadmissible because the police illegally arrested him and failed to comply with the requirements of Articles 38.22, 14.03, and 14.06." Id. He did not complain of being questioned after asserting a right to counsel. Id.
On appeal, Swain presented four points of error complaining that his oral and written statements had been obtained in violation of his right to counsel. Id. Swain specifically claimed that his constitutional rights had been violated because police had continued to question him after he had appeared before a magistrate and had requested that counsel be appointed, that his constitutional right of due process and right against self-incrimination had been violated, and that his statements were inadmissible under Article 38.23 because they had been obtained in violation of his right to counsel. Id.
The Court of Criminal Appeals declared that the complaints presented in Swain's pretrial motion were global in nature and contained little more than citations to constitutional and statutory provisions and concluded that these global statements were not sufficiently specific to preserve the complaints that he presented on appeal. Id.
In this case, we find no portion of the record in which Appellant presented Section 3(a)(3) of Article 38.22 as a basis for suppressing her recorded statement. We conclude that Appellant's pretrial motion to suppress her statements lacked the specificity needed to preserve the issue that she has raised on appeal and that her objection to the admission of her oral recorded statement was not clear enough to permit the trial court to understand what Appellant wanted, why she was entitled to it, and to take corrective action. Swain, 181 S.W.3d at 365; Lovill, 319 S.W.3d at 691; Pena, 285 S.W.3d at 464; see also Clark, 365 S.W.3d at 339 (declaring that the issue on appeal must comport with the objection at trial).
Appellant's reliance on an unpublished plurality opinion, Flores v. State, No. PD-1189-15, 2018 WL 2327162, at *4 (Tex. Crim. App. May 23, 2018) (not designated for publication), is misplaced as the opinion has no precedential value and is not to be cited as authority. TEX. R. APP. P. 77.3.
Even so, if Appellant had preserved this issue, we conclude that her claim would be meritless. The law of the case establishes that the incomplete recording of Appellant's oral statement was made while she was not in police custody, and Section 3(a) of Article 38.22 governs the admissibility of custodial statements. TEX. CODE CRIM. PROC. ANN. art. 38.22, § 3(a); see Ware, 736 S.W.2d at 701. Moreover, if the trial court's admission of the incomplete recording of Appellant's non-custodial oral statement was error, it was harmless because Appellant did not incriminate herself in that statement but subsequently admitted in her written, custodial statement that she had stabbed Robles in the neck. We overrule Appellant's first issue.
B. Admission of Written Custodial Statement
In her second issue, Appellant complains that the trial court erred by admitting her written custodial statement in evidence over defense counsel's trial objection, "I would object subject to the previous litigation." Appellant's complaint is based on her assertion that police had continued to question her after she had unequivocally invoked her constitutional right to counsel.
In the previous appeal of this case, we addressed Munoz's assertion that she had "invoked her right to counsel prior to providing her written statement when she [had] objected to being recorded." Munoz, 2018 WL 1517006, at *10. We concluded "that Munoz did not articulate her desire to have counsel present in a sufficiently clear enough manner that a reasonable police officer in Detective Ochoa's circumstances would have understood the statement to be a request for an attorney[,]" and "that Munoz's questions to Detective Ochoa were just that—questions[,]" and we rejected her argument that she had affirmatively invoked her right to counsel before providing her written statement to police. Id., at *11. Because this is the law of the case, we overrule Appellant's second issue. See Ware, 736 S.W.2d at 701.
II. Charge Error
In her third, fourth, and fifth issues on appeal, Appellant complains that the trial court erroneously failed to instruct the jury regarding her statements to police. We disagree.
We review a complaint of jury-charge error under a two-step process, and we first consider whether error exists. See Ngo v. State, 175 S.W.3d 738, 743 (Tex. Crim. App. 2005). If error does exist, we then analyze that error for harm under the procedural framework of Almanza v. State, 686 S.W.2d 157 (Tex. Crim. App. 1985) (op. on reh'g). "The standard of review for jury charge error depends on whether the error was preserved." Jordan v. State, 593 S.W.3d 340, 346 (Tex. Crim. App. 2020) (citing Almanza, 686 S.W.2d at 171); Mendez v. State, 545 S.W.3d 548, 552 (Tex. Crim. App. 2018) (explaining that when a defendant fails to object to the charge on the law applicable to the case, a claim of jury-charge error is not necessarily forfeited on appeal but, rather, whether the error was preserved affects which of Almanza's dual standards of review is to apply).
Unpreserved charge error is reversible only if it caused egregious harm. TEX. CODE CRIM. PROC. ANN. art. 36.19 ("Review of charge on appeal"); Jordan, 593 S.W.3d at 346. Thus, if the defendant failed to request a jury instruction, we review the omission of the instruction under Almanza's egregious harm standard. Oursbourn, 259 S.W.3d at 182 n.89 (citing Ellison v. State, 86 S.W.3d 226, 228 (Tex. Crim. App. 2002)); see Almanza, 686 S.W.2d at 171. Preserved charge error is reversible if it caused "some harm." TEX. CODE CRIM. PROC. ANN. art. 36.19; Jordan, 593 S.W.3d at 346. If the trial court erred, we assess the actual degree of harm of the charge error, whether preserved or unpreserved, in light of the entire jury charge, the state of the evidence, including the contested issues and weight of probative evidence, the argument of counsel and any other relevant information revealed by the record of the trial as a whole. Almanza, 686 S.W.2d at 171. The "some harm" standard still requires that the record reveal "actual," and not merely "theoretical" harm. French v. State, 563 S.W.3d 228, 235 (Tex. Crim. App. 2018).
A. Failure to Instruct Under Article 38.22
In her third and fourth issues, Appellant complains that the trial court erred when it declined to instruct the jury under Sections 6 and 7, respectfully, of Article 38.22. TEX. CODE CRIM. PROC. ANN. art. 38.22, §§ 6, 7. Because defense counsel did not request that the trial court instruct the jury under Article 38.22, if error is shown in Appellant's third or fourth issues, we will determine whether the error caused Appellant egregious harm. Oursbourn, 259 S.W.3d at 182; Almanza, 686 S.W.2d at 171.
i. Section 6
In her third issue, Appellant specifically complains that the trial court erred when it failed to instruct the jury under Section 6 of Article 38.22. TEX. CODE CRIM. PROC. ANN. art. 38.22, § 6. Section 6 pertains to the admissibility of an accused's custodial and non-custodial statements and provides that only voluntary statements are admissible at trial. Id.; see Oursbourn, 259 S.W.3d at 171. Section 6 is independent of other sections contained within Article 38.22 and is triggered where a question is raised about the voluntariness of the accused's statement. Oursbourn, 259 S.W.3d at 174, 175.
If there is evidence raising the issue of voluntariness of an accused's statement, the trial court is required to give a general voluntariness instruction to the jury under Section 6, even if an instruction is not specifically requested. Oursbourn, 259 S.W.3d at 175-76. When a question is raised and litigated about the voluntariness of a statement made by the accused, Article 38.22, Section 6 requires a trial court to: (1) independently determine that the statement was made under voluntary conditions; and then (2) instruct the jury that they shall not consider the statement for any purpose unless they believe, beyond a reasonable doubt, that the statement was voluntary. Id. at 180-81. A complaint under Article 38.22, Section 6 proceeds as follows: (1) a party notifies the trial court about the issue of voluntariness of the statement or the trial court raises it sua sponte; (2) a hearing is held outside the presence of the jury; (3) the trial court determines whether the confession was voluntary and issues written findings of fact and conclusions of law supporting the ruling; (4) if the confession is found to be voluntary, it is admissible, and a party can offer evidence contesting voluntariness; and (5) if such evidence is offered before the jury, the trial court must give a voluntariness instruction to the jury. Id. at 175.
The defense must introduce evidence at trial from which a reasonable jury could conclude that the statement was not voluntary. Vasquez v. State, 225 S.W.3d 541, 545 (Tex. Crim. App. 2007); ("Some evidence must have been presented to the jury that the defendant's confession was not given voluntarily."). When the defense introduces evidence at trial from which a reasonable jury could find that the confession was not made voluntarily, an instruction under Article 38.22 is proper. Id. at 546. However, there is no error in refusing to include a jury instruction under Article 38.22 where there is no evidence before the jury to raise the issue. Id. at 545. A jury instruction on voluntariness is required only if the evidence produced at trial would allow a reasonable jury to conclude that the statement was not voluntary. Id. at 544; see also Oursbourn, 259 S.W.3d at 174 (explaining that no error occurs if a trial court refuses to include a jury instruction on the voluntariness under Article 38.22 when there is no evidence that raises the issue of voluntariness).
During the State's case-in-chief and outside the presence of the jury, defense counsel informed the trial court that he would be seeking an instruction under Article 38.22 for inclusion in the trial court's charge and explained his reasoning. TEX. CODE CRIM. PROC. ANN. art. 38.22, § 6. Defense counsel did not request an instruction at that time. The trial court made no ruling and took the matter under advisement. During the charge conference, defense counsel did not request that the trial court instruct the jury under any Section of Article 38.22.
Although police urged Appellant to speak truthfully, the record does not otherwise indicate that Appellant produced any evidence from which a reasonable jury could find that Appellant's statements to police were coerced or not made voluntarily. The voluntariness question was raised outside the jury's presence during the State's case-in-chief, but none of the requisites for triggering the instruction were satisfied. Therefore, no jury instruction was required. See Oursbourn, 259 S.W.3d at 175; Vasquez, 225 S.W.3d at 545-46. Accordingly, we hold that the trial court did not err in failing to instruct the jury on the voluntariness of Appellant's statements under Section 6 of Article 38.22. We overrule Appellant's third issue.
ii. Section 7
In her fourth issue, Appellant complains that the trial court erred because it did not instruct the jury under Section 7 of Article 38.22. TEX. CODE CRIM. PROC. ANN. art. 38.22, § 7. When compliance with the statutory warnings regarding the rights and waivers set out in both Article 15.17 and Sections 2 and 3 of Article 38.22 is raised by the evidence, a defendant who makes a custodial statement is entitled to have the jury decide whether he was adequately warned of his rights and knowingly and intelligently waived them. Oursbourn, 259 S.W.3d at 176. For the issue to be deemed raised, a genuine factual dispute must exist. Id. The procedures outlined for Section 6—including a hearing outside the presence of the jury and the trial court's entry of written findings—also apply when the sufficiency of warnings and voluntary waiver of the rights communicated by the warnings are challenged. Id.
Appellant asserts that defense counsel's charge-conference objection—that Appellant was "in anguish, crying, and completely undone" and that this demonstrated her unwillingness to continue to cooperate and participate in the interrogation—was sufficient to place the trial court on notice that Appellant was objecting to the warnings and safeguards for written and oral statements addressed in Sections 2 and 3 of Article 38.22. TEX. CODE CRIM. PROC. ANN. art. 38.22, §§ 2, 3(a). We disagree that Appellant's objection was sufficient to constitute a request for instructions under Article 38.22. However, we must consider all alleged jury-charge error on appeal regardless of preservation in the trial court. Middleton v. State, 125 S.W.3d 450, 453 (Tex. Crim. App. 2003). Even so, the statutory-compliance issue was not raised by the evidence. TEX. R. APP. P. 33.1.
Moreover, the issue on appeal is governed by the law of the case. See Ware, 736 S.W.2d at 701. In the first appeal, we concluded that during her recorded oral interview, "[t]he undisputed evidence established that Detective Ochoa read [Appellant] her rights out loud prior to her recorded interview [, and] . . . the evidence established that [Appellant] acknowledged her understanding of those rights, and that she affirmatively waived those rights." Munoz, 2018 WL 1517006, at *7. We concluded that Appellant's interrogation was continuous in nature and did not require that police provide new warnings to her. Id., at *12. We observed that the evidence had established that at the outset of the custodial portion of Appellant's interview, Detective Ochoa had reminded Appellant that he had previously read her Miranda rights to her, then had advised her that those rights remained in effect, and had displayed them for her. Id., at *8. After Appellant had resumed her interview, she acknowledged on her written statement that she had been warned of and had understood her rights and had knowingly, intelligently, and voluntarily waived them. Id., at *8, *13. We determined that the statutory requirements for the admission of Appellant's written statement were satisfied by Appellant's acknowledgement that she had been provided the Miranda warnings in the body of the statement, and concluded that her written statement complied with the provisions of Section 2 of Article 38.22. Id., at *12-13. This is the law of the case, and even if it was not, the record does not show that Appellant produced any evidence at trial raising a disputed factual issue to warrant a Section 7 instruction to the jury under Article 38.22. TEX. CODE CRIM. PROC. ANN. art. 38.22, § 7. The requisite procedures for securing the instruction were not met. Therefore, we conclude that the trial court did not err when it did not instruct the jury under Section 7 of Article 38.22. Id. We overrule Appellant's fourth issue.
B. Failure to Instruct Under Article 38.23
In her fifth issue on appeal, Appellant complains that the trial court erred when it denied her request to instruct the jury as required under Article 38.23. She asserts that defense counsel raised evidence of genuine disputes about whether she had requested counsel while in custody and whether her silence constituted cessation of the interview and that she was entitled to the instruction.
"Article 38.23 is 'the law applicable' to any case in which a specific, disputed issue of fact is raised concerning the constitutional voluntariness of the making of the defendant's statement." Oursbourn, 259 S.W.3d at 181. When a fact question arises at trial regarding how evidence was obtained, Article 38.23 requires the trial court to instruct the jury to disregard the evidence if the jury believes that the evidence was obtained in violation of the constitutions or laws of the United States or of Texas. TEX. CODE CRIM. PROC. ANN. art. 38.23.
To trigger an Article 38.23 instruction, a defendant must establish three fundamental requirements: (1) the evidence heard by the jury must raise an issue of fact; (2) the evidence on that fact must be affirmatively contested; and (3) that contested factual issue must be material to the lawfulness of the challenged conduct in obtaining the alleged involuntary statement. TEX. CODE CRIM. PROC. ANN. art 38.23(a); Oursbourn, 259 S.W.3d at 177 (citing Madden v. State, 242 S.W.3d 504, 510 (Tex. Crim. App. 2007)). "The defendant must offer evidence that, if credited, would create a reasonable doubt as to a specific factual matter essential to the voluntariness of the statement." Oursbourn, 259 S.W.3d at 177. The factual dispute cannot be raised by mere cross-examination questions or the arguments of counsel. Id. Rather, there must be some affirmative evidence in the record before there is a disputed fact issue. Id.; Madden v. State, 242 S.W.3d 504, 514 (Tex. Crim. App. 2007).
If a disputed fact issue exists about whether a coercive practice was employed by an officer or private citizen to obtain a suspect's confession against his will, an Article 38.23 instruction to the jury is appropriate. Oursbourn, 259 S.W.3d at 178. When there is no factual dispute, as when a video definitively shows no police coercion, the trial judge alone determines the legality of the conduct as a question of law. Id.
During the charge conference, the trial court denied defense counsel's request that it instruct the jury on the voluntariness of Appellant's recorded statement under Article 38.23, on lesser-included offenses, and on self-defense. TEX. CODE CRIM. PROC. ANN. art. 38.23. Defense counsel specifically based his Article 38.23 instruction request on the fact that the video recording of Munoz's non-custodial recorded oral statement to police revealed that Appellant had begun crying, that Officer Ochoa had said to Appellant, ""[S]omehow, some way, the truth has to come out," and that Detective Elizabeth Pena had said to her, "You have to tell us. You have to[.]" Defense counsel asserted that Appellant was "in anguish, crying, and completely undone, showing that she's not willing to continue to cooperate nor willing to . . . continue with the interrogation."
During the recorded statement, the detectives also urged Appellant to be honest, tell the truth, think about what her father had told her and what God would want her to do, and stated that it was important to know what had happened. They expressed their understanding that Raul may have been violent and that Appellant may have been injured, stated that they were there to listen to her, explained how Appellant's statements were consistent with and diverged from the statements of witnesses, and offered water to her. Near the end of the recording, Detective Ochoa advised Appellant that an earlier portion of the recording had failed and that they would like to review with her the information that had not successfully recorded.
Appellant indicated that she had not understood that her interview was being recorded and expressed her belief that it could not be recorded unless a lawyer was present. Detective Ochoa reminded Appellant that he had previously explained to her that a formal interview would be conducted and stated that this was the formal interview, which was being recorded. Detective Ochoa also explained that police were permitted to record interviews, and Detective Pena clarified that statements are no longer typed and, instead, a conversation in which a person gives a statement to police is recorded.
Detective Ochoa immediately advised Appellant that she had the option of making a written statement, and Appellant stated that she did not want her statement to be recorded. Detective Ochoa then offered Appellant the opportunity to make a written statement, and Detective Pena explained to her that a recorded statement is a one-on-one discussion that is recorded and that a written statement is typed and then given to Appellant to review before signing it. Appellant asked the detectives, "Then why can't my lawyer be present?" Detective Ochoa replied, "He could [be] if you want it. That's not a problem. That's your option. That's why, when I [gave] you the rights, that's what that was."
Appellant did not thereafter request that an attorney be present, and she did not make any inculpatory statements during the recording. She made a written statement, which she reviewed, corrected, and signed as corrected. As we concluded in the first appeal, Appellant did not clearly and unambiguously invoke her right to counsel. Munoz, 2018 WL 1517006, at *11; see State v. Gobert, 275 S.W.3d 888, 892-93 (Tex. Crim. App. 2009).
"Absent police misconduct causally related to the confession, there is 'simply no basis for concluding that any state actor has deprived a criminal defendant of due process of law.'" See Oursbourn, 259 S.W.3d at 170-71 (citing Colorado v. Connelly, 479 U.S. 157, 163-164 (1986) (observing that in all previous confession cases justifying a conclusion that police conduct had been oppressive, a substantial element of coercive police conduct was present as well as fact scenarios involving some combination of protracted interrogation, isolation, withholding or inadequate food, sleep, communications, or medical care, or subjecting the subject to a belief that his life was in immediate danger)). No evidence of the types of coercive police tactics that have been held to render a suspect's statement involuntary are present in this record. Appellant did not present any affirmative evidence that would raise a factual dispute regarding whether police used coercive tactics during Appellant's interview and would require the trial court to instruct the jury under Article 38.23. The requirements that would mandate an instruction under Article 38.23 have not been satisfied. Consequently, the trial court did not err when it denied the requested instruction under Article 38.23. We overrule Appellant's fifth issue.
CERTIFICATION OF RIGHT TO APPEAL
We note that the trial court has certified Appellant's right to appeal in this case, but the certification does not bear Appellant's signature indicating that she has been informed of her rights to appeal and to file a pro se petition for discretionary review with the Texas Court of Criminal Appeals. See TEX. R. APP. P. 25.2(d). We thus find that the certification is defective and that neither Appellant's attorney nor the trial court has corrected the defective certification.
To remedy this defect, the Court ORDERS Appellant's attorney, pursuant to Rule 48.4, to send Appellant a copy of this opinion and this Court's judgment, to notify Appellant of her right to file a pro se petition for discretionary review, and to inform Appellant of the applicable deadlines. See TEX. R. APP. P. 48.4, 68. The Court further ORDERS Appellant's attorney to comply with all the requirements of Rule 48.4. TEX. R. APP. P. 48.4.
CONCLUSION
We affirm the trial court's judgment. TEX. R. APP. P. 43.2(a).
GINA M. PALAFOX, Justice October 30, 2020 Before Alley, C.J., Rodriguez, and Palafox, JJ. (Do Not Publish)