Opinion
No. 05-10-01237-CR
03-13-2012
EDGAR PUILDO MURGA, Appellant v. THE STATE OF TEXAS, Appellee
AFFIRM as MODIFIED and Opinion Filed March 13, 2012
On Appeal from the Criminal District Court No. 3
Dallas County, Texas
Trial Court Cause No. F09-55720-J
MEMORANDUM OPINION
Before Justices Lang, Murphy, and Myers
Opinion by Justice Murphy
Edgar Puildo Murga appeals his capital murder conviction for murdering his wife's sister during a burglary. In five points of error, appellant challenges (1) the trial court's failure to make findings of fact and conclusions of law on the voluntariness of his confession, (2) the admission of appellant's confession as voluntary, (3) the admission of the victim's daughter's out-of-court statements identifying “Edgar” as the attacker, (4) the sufficiency of the evidence to support capital murder, and (5) the erroneous naming of appellant's trial counsel in the judgment. We affirm the trial court's judgment as modified to reflect the correct attorney and punishment assessed by the trial court. BACKGROUND
The evidence in this three-day jury trial consisted of twelve witnesses for the prosecution, three witnesses called by appellant, and admission of 129 exhibits. Appellant did not testify.
The evidence shows that the victim's husband, Jose Rodriguez, spent most of the day of June 6, 2009 and the early morning hours of June 7, 2009 at his in-laws' house. Appellant is the husband of Diana Arenas, one of the victim's sisters. Appellant was also at the house, and he and Jose drank beer and ingested cocaine during the family gathering.
The victim, Alma Arenas, and her young daughter, Daisy, were also at the family gathering. They left about 10:00 or 11:00 p.m. without Jose. By 4:30 a.m. on June 7, appellant and Jose were still at the house and were the only ones still awake. Jose had given appellant his keys because he had had too much to drink. Jose went to sleep on a couch and slept until about 7:30 a.m., at which time he asked appellant for his keys so he could drive home. Appellant volunteered to take Jose home and drove him there and left.
Jose discovered the victim and Daisy on the floor in a bedroom of their home. The victim had multiple stab wounds and was dead. Daisy had a stab wound to her neck, and Jose thought that she was dead until she opened her eyes. Jose asked Daisy what happened, and Daisy said, “It was Edgar.” Jose relayed this statement to the police later that morning at the scene. The police interviewed appellant later that day at the police station, and he eventually admitted that evening that he had attacked the victim and Daisy with a knife.
A paramedic who transported Daisy to the hospital testified about their conversation on the way to the hospital. He asked Daisy if a white man or a black man attacked her; she replied that it was a black man. Appellant's wife, Diana, testified that she also rode to the hospital in the ambulance with Daisy. Shortly after arriving at the hospital, Diana asked Daisy what happened and Daisy responded, “Edgar, telephone, and my mother.”
After Daisy was released from the hospital, she went to live with San Juana Arenas Perez who was also a sister of the victim. During the four months that Daisy lived there, she told Perez twice that appellant was the one who attacked her and the victim. Daisy also testified at trial that appellant was the attacker.
In addition to witness testimony, the State's case also included DNA evidence. Blood on appellant's shirt, pants, and shoes showed a match with the victim's DNA profile, and the probability that the blood belonged to someone other than the victim was estimated at one in 1.29 trillion. A piece of skin found in the victim's teeth also contained a mixture of DNA from appellant and the victim. Three statistical analyses were presented for the skin sample. One analysis showed it was “at least 257 million times more likely” that the source of the mixture of the DNA profile was from the victim and appellant rather than from the victim and some unknown individual. Another analysis showed it to be “136 billion times more likely” the source was from the victim and appellant. The third analysis showed a one in 11.1 billion possibility that someone other than appellant had a DNA profile that matched appellant's.
DISCUSSION
Admission of Appellant's Confession
As a preliminary matter, appellant claims in his first point of error that this appeal should be abated for the trial court to make findings of fact and conclusions of law on the voluntariness of his confession. See Urias v. State, 155 S.W.3d 141, 142 (Tex. Crim. App. 2004). We did abate the appeal for that purpose, and the record has been supplemented with the trial court's findings of fact and conclusions of law. Accordingly, we overrule appellant's first point of error as moot. Appellant also challenges the trial court's admission of his police confession because the confession was not “of his own free will.” In support of this claim, which was raised in a supplemental brief as appellant's fifth point of error, appellant argues the police used “aggressive and coercive” methods during their interrogation. Appellant also argues his physical and emotional state were questionable at best, because he had been drinking, he had not slept, and it is doubtful he understood his Miranda rights because of his limited ability to speak English. He claims his confession was suggested by the detectives' questions and statements and that the difference in his description of the knife used and the knife found at the murder scene affects the “voluntariness” determination.
Article 38.21 of the Texas Code of Criminal Procedure provides that an accused's statement may be used in evidence against him if it appears the statement was freely and voluntarily made without compulsion or persuasion. See Tex. Code Crim. Proc. Ann. art. 38.21 (West 2005). We analyze whether a confession is voluntary based on the totality of the circumstances. See Arizona v. Fulminante, 499 U.S. 279, 285-86 (1991); Delao v. State, 235 S.W.3d 235, 239 (Tex. Crim. App. 2007). It is the methods used to extract a confession that offend constitutional principles; the “voluntariness” test determines whether the confession is the product of an essentially free and unconstrained choice by its maker. See State v. Terrazas, 4 S.W.3d 720, 723-24 (Tex. Crim. App. 1999); see also Michigan v. Tucker, 417 U.S. 433, 440 (1974) (privilege against compulsory self-incrimination aimed at “a recurrence of the Inquisition and the Star Chamber, even if not in their stark brutality”). Some relevant circumstances examined to determine whether a defendant's will was overborne include length of detention, incommunicado or prolonged interrogation, denial of family access to a defendant, refusal of a defendant's request to telephone a lawyer and family, and physical brutality. See Armstrong v. State, 718 S.W.2d 686, 693 (Tex. Crim. App. 1985), overruled on other grounds by Mosley v. State, 983 S.W.2d 249, 264 n.18 (Tex. Crim. App. 1988). In reviewing a trial court's voluntariness ruling, we afford almost total deference to the trial court's fact-findings and to the trial court's ruling on application-of-law-to-fact questions that turn on credibility and demeanor; we review de novo the trial court's ruling on application-of-law-to-fact questions that do not turn on credibility and demeanor. See Leza v. State, 351 S.W.3d 344, 349 (Tex. Crim. App. 2011); Ripkowski v. State, 61 S.W.3d 378, 381-82 (Tex. Crim. App. 2001).
The record here shows that appellant was detained as a suspect at the police station and placed in an interview room for just less than ten hours. During this period, he was interrogated for a total of about five hours, first by Detective Lopez and then by Detective Arredondo. Both detectives knew Daisy had named appellant as her attacker. Lopez read appellant his Miranda rights in Spanish at the beginning of the interview, and appellant stated he understood his rights. When Lopez again told appellant he could have an attorney, appellant responded that he understood. Lopez also testified he read appellant his rights in Spanish because appellant spoke mostly Spanish during their initial conversation and Lopez felt appellant was more comfortable speaking Spanish.
Lopez interviewed appellant for about three hours, during which appellant denied “many times” he had committed the offense. Arredondo then took over the interview, because Lopez felt he was “not getting anywhere.” Arredondo interviewed appellant for about one to one and one-half hours. Appellant eventually made incriminating statements to Arredondo, including a statement he had attacked the victim and Daisy with a knife from the victim's kitchen. Appellant told Arredondo he thought he had left the knife at the victim's home; he stated he did not know where the knife was. These interviews were mostly in Spanish. Visual and audio recordings were made of the entire time appellant was in the interview room. The audio portion was transcribed from Spanish to English and admitted into evidence as State's Exhibit 111-B. Lopez testified the video portion of the interview was lost due to a computer hard-drive crash.
Both detectives testified they did not coerce or harass appellant into making a statement against his will and that appellant freely and voluntarily spoke to them; at no time did appellant ask to terminate the interview or state that he wanted an attorney. Appellant was offered necessities such as food, water, and bathroom breaks. The record reflects that appellant never complained that any lack of sleep or anything else rendered him unable to continue with the interview. Lopez testified the method of interrogation the detectives used was not to accept appellant's denials and to continue the interview until appellant told the truth. Appellant was accused several times of lying when he denied committing the crime, and he was encouraged to tell the truth even when he was crying. There were long periods of time when appellant was in the interview room alone. Detectives also seized appellant's clothing and photographed his body for evidence that the victim may have injured him while defending herself. Arredondo did not consider it coercive to take appellant's clothing and photograph his unclad body. After the photographs were completed, appellant received other clothes to wear.
Viewing appellant's confession under the totality of the circumstances, we conclude the trial court's findings and conclusions that appellant's confession was voluntarily made and thus admissible are supported by the record. Appellant was informed of his Miranda rights, and he stated more than once that he understood his rights. Although the detectives continued to encourage appellant to tell the truth after he denied involvement in the offense, they did not threaten or coerce appellant during the approximately five hours they actually interviewed him. They offered appellant basic necessities such as food, water, and bathroom breaks, and he never expressed a desire to terminate the interview or to speak to an attorney. Appellant also never claimed his alcohol consumption or lack of sleep rendered him unable to continue with the interview. We see nothing in the record to support a finding appellant's drinking and lack of sleep rendered him unable to make a voluntary statement or that his language difficulties inhibited his knowledge and understanding-he received warnings in Spanish and stated he understood his rights. None of these circumstances show the type of police conduct held to be so inherently coercive as to overbear a suspect's will not to confess. See, e.g., Davis v. North Carolina, 384 U.S. 737, 739, 752 (1966) (defendant's will overborne by “sustained pressures upon him,” such as repeated interrogations over sixteen days without being advised of rights and without being allowed to see anyone or make telephone calls); Smith v. State, 779 S.W.2d 417, 428-29 (Tex. Crim. App. 1989) (that mentally challenged defendant was questioned by police more or less continuously for eight hours without sleep and food and with repeated attacks on his veracity did not require finding of involuntariness).
Appellant cites to pages 108 to 140 of his transcribed statement (State's Exhibit 111-B) to support his argument that incriminating statements were suggested to him by the detectives' statements and questions. He argues generally without citing to any specific portions of this transcription that appellant “did nothing more than repeat what the detective had just stated about what had occurred.” Based on our review of these portions of the record as well as the transcription as a whole, we conclude the trial court reasonably could have found that appellant's incriminating statements were his own and were not suggested by the detectives.
Appellant also argues the variance between the knife he described as the murder weapon and a knife found in the closet of the bedroom where the victim was found is evidence appellant's confession was coerced. Appellant cites no authority in support of his argument, and we decline to conclude that any discrepancy between appellant's description of the knife he used to commit the offense and the knife found at the crime scene renders appellant's confession involuntary. Although appellant argues it is reasonable to infer the knife found in the bedroom was the murder weapon, the State did not allege “with certainty” that the knife was the murder weapon.
Appellant's arguments do not change our conclusion, based on the circumstances shown by the record as a whole, that the trial court did not abuse its discretion by finding appellant's confession was voluntary and overruling appellant's objection to admission of that statement. Cf. Oursbourn v. State, 259 S.W.3d 159, 170-73 (Tex. Crim. App. 2008) (listing types of “police overreaching” that induced involuntary statements). We overrule appellant's supplemental point of error as to admission of his confession. Admission of Daisy's Out-of-Court Statements
Appellant claims in point of error two that the trial court abused its discretion when it allowed evidence of Daisy's out-of-court statements to Perez that it was “Edgar” who attacked her and the victim. After testifying on direct examination by the State that appellant attacked her and the victim, Daisy testified on cross-examination that she did not remember telling “the ambulance people that it was a black man that went in [her] house.” She also responded to repeated questions about how many times she met with the prosecution and was asked if “anyone ever told [her] about repeating the story about that Edgar was the man that was in [her] house?”
The State's next witness after Daisy was Perez, who testified over appellant's hearsay objection that Daisy told her on two prior occasions that appellant was the one who attacked Daisy and the victim. The trial court admitted this testimony under evidence rule 801(e)(1)(B), which defines a witness's prior consistent out-of-court statements as non-hearsay when they are “offered to rebut an express or implied charge against the declarant of recent fabrication or improper influence or motive.” Tex. R. Evid. 801(e)(1)(B). During closing jury arguments, the defense questioned why Daisy would change her prior statement to the paramedic that someone other than appellant committed this offense, as follows:
This is a six-year-old child who, on that day tells-allegedly tells Jose, the father, it was Edgar. Okay?
Then, within 30 minutes or less after that, in the ambulance, she tells the ambulance personnel, it was a black man and she didn't know who they were.
Why would she say that? Why would Daisy say that to anybody?
She said it was a black man and she didn't know who he was. She didn't say, as [the prosecution] said a minute ago, that she said the same thing in the ambulance. No, she didn't; she said something completely different. I don't know why she would say it, but they said she was alert on the way in the ambulance.
Do you think Edgar got to her and said, hey, don't tell them it was me? No, he didn't have any opportunity to.
And why would you change it? Was she feeling guilty already?
No. The fact is either she didn't know or it came to her the truth as she was riding in the ambulance as to what happened out there.
In deciding whether a party's cross-examination of a witness has opened the door to the admission of a prior out-of-court statement by that witness that is consistent with the witness's in- court testimony, the trial court must determine whether the totality of the cross-examiner's questions or the tenor of that questioning would reasonably imply an intent by the witness to fabricate. See Hammons v. State, 239 S.W.3d 798, 806 (Tex. Crim. App. 2007). A trial court has considerable discretion to admit prior consistent statements because the foundation requirement for an express or implied charge of recent fabrication or improper influence or motive is “minimal.” Id. at 804. A trial court's determination that a prior consistent statement is admissible is reviewed “only for an abuse of discretion,” particularly since this determination is based in large part on “the tone and tenor of the questioning, combined with the cross-examiner's demeanor, facial expressions, pregnant pauses, and other nonverbal cues.” Id. at 806, 808.
Defense counsel in this case cross-examined Daisy about meeting with the prosecution and any suggestions “about repeating the story” that Edgar was the man in her house. The trial court reasonably could have determined this questioning was an implied charge of recent fabrication, which the defense repeated during its closing arguments when it questioned why Daisy changed her prior statement to the paramedic. See id. at 808 (noting that subtle implied charge of recent fabrication “became vociferously express” during closing arguments). On this record, we conclude the trial court did not abuse its discretion when it overruled appellant's objection and admitted Daisy's prior consistent statements to Perez. See id. at 806.
Even if we were to conclude the trial court erred by admitting Perez's testimony about Daisy's prior consistent statements, any error had little, if any, injurious effect on the jury's verdict and was harmless. See Tex. R. App. P. 44.2(b); see also Casey v. State, 215 S.W.3d 870, 885 (Tex. Crim. App. 2007) (appellate court may not reverse conviction for non-constitutional error if court, after examining the record as a whole, has fair assurance error did not have substantial and injurious effect or influence in fact finder's verdict); Johnson v. State, 967 S.W.2d 410, 417 (Tex. Crim. App. 1998). Daisy's other out-of-court statements implicating appellant were made to Jose at the crime scene and to appellant's wife Diana at the hospital. Those statements were admitted without objection. See Leday v. State, 983 S.W.2d 713, 717 (Tex. Crim. App. 1998) (improper admission of evidence not reversible error if same facts shown by other unchallenged evidence). We overrule point of error two.
Legal Sufficiency
Appellant claims in his third point of error that the evidence is insufficient to support his capital-murder conviction “because the murder of the victim cannot be used to make the entry in the victim's home a burglary and, at the same time, use the burglary as the aggravating offense to make the murder into capital murder.” The court of criminal appeals has rejected this “bootstrapping” argument. Homan v. State, 19 S.W.3d 847, 849-50 (Tex. Crim. App. 2000); Matamoros v. State, 901 S.W.2d 470, 474 (Tex. Crim. App. 1995). We overrule appellant's third point of error. Reformation
In his fourth point of error, appellant asserts the judgment should be modified to reflect that “Richard Carrizales” was appellant's trial attorney. The State agrees and also asserts the judgment should be modified to reflect that it was the trial court, and not the jury, that assessed appellant's punishment. Based on the record, we agree. We therefore modify the trial court's judgment to reflect that “Richard Carrizales” was appellant's trial attorney and that the trial court assessed appellant's punishment. We affirm the trial court's judgment as modified. See Tex. R. App. P. 43.2(b).
MARY MURPHY
JUSTICE
Do Not Publish
Tex. R. App. P. 47
101237F.U05
Court of Appeals Fifth District of Texas at Dallas JUDGMENT
EDGAR PUILDO MURGA, Appellant
V.
THE STATE OF TEXAS, Appellee
No. 05-10-01237-CR
Appeal from the Criminal District Court No. 3 of Dallas County, Texas. (Tr.Ct.No. F09- 55720-J).
Opinion delivered by Justice Murphy, Justices Lang and Myers participating.
Based on the Court's opinion of this date, the trial court's September 3, 2010 judgment in Case No. F09-55720-J is MODIFIED as follows:
The “Attorney for Defendant” is modified to read: “Richard Carrizales.”
The “Punishment Assessed by” is modified to read: “Trial court.”
As modified, the judgment of the trial court is AFFIRMED.
Judgment entered March 13, 2012.
MARY MURPHY
JUSTICE