No. 05-03-01638-CR
Opinion issued February 2, 2005. DO NOT PUBLISH. Tex.R.App.P. 47.
On Appeal from the Criminal District Court, No. 5, Dallas County, Texas, Trial Court Cause No. F03-71176-RL. Affirmed.
Before Chief Justice THOMAS and Justices MAZZANT and LAGARDE.
The Honorable Sue Lagarde, Justice, Court of Appeals, Fifth District of Texas at Dallas, Retired, sitting by assignment.
SUE LAGARDE, Justice, Assigned.
Following the trial court's denial of his pretrial motion to suppress, appellant Cesar Rodriguez elected to have a jury decide his punishment and pleaded guilty before a jury to the first-degree felony offense of aggravated sexual assault. See Tex. Pen. Code Ann. § 22.021 (Vernon Supp. 2004-05). On his plea of guilty, the jury found appellant guilty of aggravated sexual assault and assessed his punishment at thirty-three years' imprisonment. Appellant now appeals claiming the trial court erred in denying his pretrial motion to suppress. For reasons that follow, we affirm.
The jury also found appellant used or exhibited a deadly weapon during the commission of the offense.
Motion to Suppress
The State's brief does not discuss this motion, referring instead to appellant's "Motion in Limine Regarding Statements Made While Under Arrest."
On August 5, 2003, appellant filed a "Motion to Suppress Illegally Seized Evidence." Through that motion, appellant moved the trial court to suppress "[a]ll statements made, whether oral or written, and such other actions of the Defendant, if any, at the time of and subsequent to the detention and arrest of the Defendant on January 16, 2003." In paragraph II. A. of the motion to suppress, appellant alleged that his arrest and/or detention was without a warrant, probable cause, or reasonable suspicion in violation of the Fourth, Fifth, Ninth, and Fourteenth amendments to the United States Constitution and article I, sections 9, 10, and 19 of the Texas Constitution. In paragraph II. B., appellant alleged that "[a]ll statements made by the Defendant subsequent to his detention and arrest by police were products of the illegal arrest of the Defendant." Appellant cited case law, the Fifth and Fourteenth amendments to the United States Constitution, article I, section 10 of the Texas Constitution, and articles 38.21, 38.22, and 38.23 of the code of criminal procedure. In paragraph II. C., appellant alleged that his arrest was "without a warrant and without any authority whatsoever. No person witnessed the Defendant commit an offense. The Defendant was not found in a suspicious place under suspicious circumstances which would reasonably show that he had been guilty of a felony offense or a breach of the peace or was about to commit some offense against the law." Appellant alleged federal and state constitutional grounds as well as statutory violations of articles "14.01, et seq." and "15.01, et seq." of the code of criminal procedure. In paragraph II. D., citing federal and state constitutional grounds and article 38.23 of the code of criminal procedure, appellant alleged that any statement made by him was not made freely nor voluntarily but was given as a result of compulsion and/or persuasion. In paragraph II. E. appellant alleged that any oral statements made by him were not made and preserved in compliance with the requirements of article 38.22 of the code of criminal procedure. In paragraph II. F. appellant alleged that evidence seized in violation of the constitution or laws of the State of Texas or the federal constitution is inadmissible against the accused under article 38.23 of the code of criminal procedure. Before trial was to begin on October 7, 2003, outside the jury's presence, the trial court conducted a hearing on appellant's motion to suppress. The State presented the testimony of two Dallas police officers. Appellant rested without presenting any evidence. On appellate review, case law requires that we view the evidence presented at that hearing in the light most favorable to the trial court's ruling. See Walter v. State, 28 S.W.3d 538, 540 (Tex.Crim.App. 2000). So viewing the evidence, the following facts were developed. Detective Miguel Sarmiento, a twelve-year veteran of the Dallas Police Department, testified that on April 28, 2002, he was assigned to investigate an aggravated sexual assault/aggravated robbery complaint. A truck had been stolen during the offense. Sarmiento's investigation led him to a suspect, Cuevos Giovanni, when, on May 8, 2002, Giovanni was found driving that stolen truck. Giovanni was arrested; however, he was later released from custody and remained at large until he was re-apprehended during the early morning hours of January 16, 2003. After Giovanni's recapture, Sarmiento interviewed him. During that interview, Giovanni implicated another man in the aggravated sexual assault and gave Sarmiento a card with only the first name "Cesar" and an address. Sarmiento considered Giovanni a flight risk. Because Cesar's immigration status was unknown and thinking that Cesar, like Giovanni, might also be a flight risk, at about 4:00 a.m. on January 16, 2003, Sarmiento sent uniformed officer Joel Lucas Reyes to the address on the card to see if Cesar was there and to identify him. Sarmiento wanted to obtain Cesar's birth date, driver's license number, and any other information that would allow him to continue the investigation. At approximately 4:30 a.m., Reyes returned to the police department with appellant, who was in handcuffs. Reyes told Sarmiento that appellant had come to the station voluntarily because he did not want to discuss the matter in front of his family at home. At the station, Sarmiento removed the handcuffs from appellant. Both Sarmiento and appellant were fluent in English and Spanish. Even though appellant was not under arrest, Sarmiento read appellant the Miranda rights and explained to appellant why he was there. Appellant acknowledged he understood his rights, signed the Miranda card, and waived his constitutional rights. Appellant neither requested an attorney nor asked to terminate the interview. Sarmiento did not coerce or threaten appellant nor did he promise him anything in exchange for a statement. At around 5:00 a.m., when Sarmiento left the interview room to talk to Giovanni, patrol officers told Sarmiento there were outstanding traffic warrants for appellant. After learning this, Sarmiento continued his interview with appellant. Sarmiento informed appellant about the outstanding warrants and told appellant he would be arrested pursuant to those warrants no matter what happened during the interview. After some period of time, appellant orally admitted to Sarmiento that he and two other men got drunk and "did something stupid." Appellant told Sarmiento he had seen Giovanni's picture on television and figured the police would be looking for him. Without a script, appellant eventually wrote out a statement. Sarmiento left the interview room a couple of times while appellant was writing the statement. Appellant was given an opportunity to review his statement and to make any changes before he signed it; however, he made no changes. At approximately 7:30 a.m. on January 16, 2003, appellant signed a written statement. Detectives Sarmiento and Salas witnessed the signing. After appellant signed the written statement, he was arrested on the outstanding traffic warrants. Dallas police officer Reyes, a seven-year veteran with the Dallas Police Department, also testified at the pretrial hearing. With the knowledge that someone whose first name was "Cesar" was a suspect in an aggravated sexual assault case in which a deadly weapon was used, Reyes went to the address on the card Giovanni had given Sarmiento. There Reyes met several other uniformed officers. Upon Reyes's arrival, the officers knocked on the door of the apartment and identified themselves as Dallas police officers. An older man answered the door and allowed the officers to enter. There appeared to be two families living in the apartment. The people in the apartment were told why the officers were there and for whom they were looking. All of the males in the apartment were identified, including appellant, who was asleep in a bedroom with his wife and a baby. The officers were allowed to enter the bedroom by the man who had let them into the apartment. Appellant seemed surprised when the officers woke him up. The officers told appellant they had been sent there to look for him because investigators at the police department wanted to talk to him. Appellant appeared to be familiar with why the investigators wanted to talk to him. Reyes called Sarmiento and told him they had found someone there. Sarmiento instructed Reyes to ask appellant if he would be willing to come to the station for an interview and, if so, to bring him down. Appellant was given the choice of having the investigators come to his apartment and talk to him or of going to the police station to talk to the investigators there. After thinking about it, appellant chose to go to the police station. When appellant agreed to go to the police station, the officers allowed him to get dressed and explained to the other people present that appellant was going downtown with them. Reyes, however, did not allow appellant out of his sight. Reyes had appellant's wife get the clothes from the bedroom and had appellant dress in the kitchen. During the fifteen to thirty minutes the officers were in the apartment, their weapons were never unholstered. Just before putting appellant in the squad car, the officers handcuffed appellant; however, speaking to appellant in Spanish, they told him he was not under arrest but was being handcuffed pursuant to police department general orders. At the police station, the officers took appellant to an interview room where he was interviewed by Sarmiento and, ultimately, made a written statement. Without objection, appellant's written statement was admitted into evidence at the pretrial hearing. During argument on the motion to suppress, appellant tendered to the court a copy of the Supreme Court opinion in Kaupp v. Texas, 538 U.S. 626 (U.S. 2003). Appellant contended the facts and circumstances in that case were very similar to the facts here. The State responded that Kaupp was factually distinguishable from this case because there were no warrants involved in Kaupp and here discovery of the warrants prior to the statement being given broke any causal connection between what the court could conceive as an illegal arrest and appellant's written statement. The facts of Kaupp are similar to this case in several respects: appellant was implicated in the crime by a co-defendant; several officers went to appellant's home in the early morning hours and were let in by someone other than appellant; the officers awakened appellant; appellant was handcuffed, driven to the police station, and taken to an interview room where the handcuffs were removed; and appellant was advised of his rights under Miranda, after which he gave a written statement. The facts in the two cases differ, however, in the following respects: In Kaupp, the officers tried, but failed, to get a warrant to question Kaupp; after waking Kaupp, the officer identified himself and said, "we need to go and talk," to which Kaupp replied, "Okay"; Kaupp was then taken to the police station shoeless and dressed only in boxer shorts and a T-shirt; Kaupp was never told he was free to decline to go with the officers; after some ten to fifteen minutes into Kaupp's interrogation, after being told of his brother's confession, Kaupp admitted having some part in the crime; and the State did not allege "any meaningful intervening event" between the illegal arrest and the confession. In this case, the officers neither sought, nor were denied, a warrant; appellant's immigration status was unknown and the two co-defendants were known to the police to be flight risks; the only information the officers had about appellant was his first name, an address, and that he had been implicated by a co-defendant in an aggravated sexual assault case in which a deadly weapon was used; almost a year had passed since the crime; the officers were sent to the location to see if appellant was still there and to identify him by birth date and driver's license number; the people in the apartment were told why the officers were there and for whom they were looking; the officers told appellant they had been sent there to look for him because investigators at the police department wanted to talk to him; appellant was given the choice of having the investigators come to his apartment and talk to him or going to the police station to talk to the investigators there; and, after thinking it over, appellant chose to go to the police station because he did not want to talk to the investigators in front of his family; when appellant agreed to go, the officers allowed him to get dressed and explained to the others present that appellant was going downtown to speak to a detective; appellant was handcuffed only after he got outside to the police car and was told in Spanish that he was not under arrest; shortly after the interview began, the officers learned appellant had outstanding arrest warrants and so informed appellant, telling him he would be arrested on those warrants no matter what happened during the interview; about three hours elapsed between appellant's arrival at the police station and the signing of his written statement; appellant was formally arrested on the warrants after he signed the written statement; and the State does contend that discovery of the warrants was a "meaningful intervening event" between the claimed illegal arrest and appellant's confession. The State had the burden on appellant's motion to suppress to establish that appellant's written statement should not be suppressed because either appellant voluntarily went to the police station where he freely and voluntarily gave the statement, or, if appellant were illegally arrested, any taint from that illegal arrest had been purged to the extent it was not "obtained" by exploitation of an illegal arrest. See Kaupp, 538 U.S. at 633 (citing Brown v. Illinois, 422 U.S. 590, 604 (1975)). Standard of Appellate Review
The standard of appellate review of a trial court's ruling on a motion to suppress is a mixed one: both deferential and de novo. We give almost total deference to the trial court's determination of historical facts, especially when the findings are based on an evaluation of credibility and demeanor. See Manzi v. State, 88 S.W.3d 240, 243 (Tex.Crim.App. 2002); Carmouche v. State, 10 S.W.3d 323, 327 (Tex.Crim.App. 2000); Guzman v. State, 955 S.W.2d 85, 89 (Tex.Crim.App. 1997). When a trial court does not make explicit findings of historical fact, we review the evidence in a light most favorable to the trial court's ruling. See Walter, 28 S.W.3d at 540. The application of search and seizure law, however, to those historical facts is reviewed de novo. Carmouche, 10 S.W.3d at 327; Guzman, 955 S.W.2d at 89. Appellant claims on appeal, as he did below, that his confession was obtained by the exploitation of his illegal arrest. The State, both below and here, contends appellant was not under arrest at the time he gave the written statement but, rather, voluntarily went to the police station where he freely and voluntarily made the statement. Alternatively, the State argues that even if appellant was under an illegal arrest at the time he made the statement, there was no causal connection between that arrest and his statement because any taint from such arrest was attenuated; therefore, appellant's statement was not subject to suppression as the fruit of an illegal arrest. Deferentially viewing the historical facts in the light most favorable to the trial court's ruling, as we must, we conclude those facts establish that appellant was not under arrest at the time he was transported to the police station, but that he voluntarily went there and he later freely and voluntarily gave a written statement. Thus, appellant's statement was not the product of an illegal arrest. Appellant was given a choice of staying in his home and having the investigators come there to speak to him or of going to the station. After considering his options, he chose the latter to avoid discussing the matter in front of his family. We further conclude that even if appellant was illegally arrested, his written statement was "an act of free will [sufficient] to purge the primary taint of the unlawful invasion." Kaupp, 538 U.S. at 632-33 (citing Wong Sun v. United States, 371 U.S. 471, 486 (1963)). We reach such conclusion by applying the relevant considerations under Brown v. Illinois, 422 U.S. 590 (1975). In Brown, the United States Supreme Court set out four factors to be considered in determining whether the taint of an illegal arrest is sufficiently attenuated to render a confession admissible. Id. at 604. Those factors are: (i) whether the Miranda warnings were given; (ii) the temporal proximity of the arrest and the confession; (ii) the presence of intervening circumstances; and, particularly, (iv) the purpose and flagrancy of the official misconduct. Id.; Polk v. State, 704 S.W.2d 929, 932-33 (Tex.App.-Dallas, 1986) (applying Brown factors and holding that being Mirandized five times and appearing to be cooperative not enough to carry the burden placed on the State), aff'd, 738 S.W.2d 274 (Tex.Crim.App. 1987). The burden of showing admissibility rests on the prosecution. Id. at 935. The State's burden is a heavy one. See Foster v. State, 648 S.W.2d 31, 34 (Tex.App.-Dallas 1983), aff'd, 677 S.W.2d 507 (Tex.Crim.App. 1984). Appellant argues he is like Polk in two respects: he was Mirandized both orally and in writing after the illegal arrest, and he did not initiate the conversation, but, rather, it was forced on him. Appellant urges this court to conclude, as it did in Polk, that the State failed in its burden to show attenuation of the taint of his illegal arrest. The State, on the other hand, points out that, unlike Polk, here there were intervening circumstances-the outstanding arrest warrants-that dictate a different result. The State correctly contends that not all of the Brown factors need be resolved in favor of the State or given equal weight. See Johnson v. State, 871 S.W.2d 744, 751 (Tex.Crim.App. 1994) (all four Brown factors considered and no one should be dispositive). Appellant was given the Miranda warnings immediately upon arriving at the interview room, as well as later. About three hours elapsed between appellant's arrival at the police station and the signing of his written statement. Unlike in Polk, however, here there was a significant intervening event: the officers learned there were outstanding arrest warrants for appellant. These arrest warrants weigh heavily in attenuating any taint of an illegal arrest. See Welcome v. State, 865 S.W.2d 128, 134 (Tex.App.-Dallas 1993, pet. ref'd) (holding that although warrantless arrest was illegal, officers did not search defendant until after they discovered outstanding warrant for him, and this fact had effect of attenuating taint of unlawful arrest). Finally, the State contends there was no flagrant police misconduct here. Appellant was told by the officers he was not under arrest and they did not believe they were arresting appellant. Further, appellant voluntarily made the choice to talk to the investigators at the police station instead of at his apartment in front of his family. We have carefully viewed the facts under the appropriate standard, as well as the arguments of counsel, and applied a de novo standard of review to application of search and seizure law to those facts. We conclude that, even assuming, without deciding, appellant's initial seizure was illegal, the written statement was an act of appellant's free will sufficient to purge any taint from an illegal arrest. See Johnson, 871 S.W.2d at 750-51 (attenuation doctrine is applicable to prohibition against evidence "obtained" in violation of law because evidence sufficiently attenuated from violation of law not considered to be "obtained" therefrom). We conclude, therefore, the trial court was within its discretion in denying appellant's motion to suppress. We resolve appellant's sole issue against him. We affirm the trial court's judgment.