No. 05-07-01463-CR
Opinion issued November 21, 2008. DO NOT PUBLISH. Tex. R. App. P. 47.
On Appeal from the Criminal District Court No. 7 Dallas County, Texas, Trial Court Cause No. F06-63831-Y.
Before Justices MOSELEY, RICHTER, and FRANCIS.
JIM MOSELEY, Justice.
Juan Valenzuela pleaded guilty to the murder of Vernon Harris and was sentenced by a jury to life imprisonment and a $10,000 fine. The judgment includes a finding on a deadly weapon, a firearm. He appeals, asserting three issues. We affirm. Because the facts are well known to the parties and the issues settled, we issue this memorandum opinion. See Tex. R. App. P. 47.4.
ADMONISHMENTS
In his first issue, appellant contends the trial court failed to admonish him as a non-citizen, specifically with the deportation admonishments. Prior to accepting a guilty plea, the court shall admonish the defendant of "the fact that if the defendant is not a citizen of the Unites States of America, a plea of guilty . . . for the offense charged may result in deportation, the exclusion from admission to this country, or the denial of naturalization under federal law." Tex. Code Crim. Proc. art. 26.13(a)(4) (Vernon Supp. 2008). Substantial compliance with this provision is sufficient unless the defendant affirmatively shows he was not aware of the consequences of his guilty plea and that he was misled or harmed by the court's admonishment. Id. art. 26.13(c). Substantial compliance exists if the trial court admonished the accused, even if the admonishments were incomplete or incorrect. See Harris v. State, 887 S.W.2d 482, 484 (Tex.App.-Dallas 1994, no pet.) (citing Ex parte Gibauitch, 688 S.W.2d 868, 871 (Tex.Crim.App. 1985) (per curiam)). Appellant complains the trial court did not admonish appellant that he could be "excluded from admission" to the country due to his guilty plea. However, the trial court asked appellant if he understood his guilty plea could have very serious consequences on his ability to become a United States citizen, it could have a direct impact on his status within the United States, and that he might actually get deported because of this conviction; appellant answered all three questions affirmatively. We conclude the trial court substantially complied with article 26.13(a)(4). See Tex. Code Crim. Proc. Ann. art. 26.13(c); Harris, 887 S.W.2d at 484. Appellant does not show he was not aware of the consequences of his guilty plea or that he was misled or harmed by the court's admonishment. See Tex. Code Crim. Proc. art. 26.13(c). Instead, he relies on cases in which the trial court completely failed to admonish the defendant. See, e.g., VanNortrick v. State, 227 S.W.3d 706, 708 (Tex.Crim.App. 2007). We resolve appellant's first issue against him. ADMISSIBILITY OF CONFESSION
In his second issue, appellant contends his conviction should be reversed because his confession was given after police improperly "reinitiated" contact with him after he invoked his right to counsel, in violation of the Fifth and Fourteenth Amendments of the United States Constitution. When an accused has expressed his desire to deal with the police only through counsel, he is not subject to further interrogation by the authorities until counsel has been made available to him, unless the accused himself initiates further communication, exchanges, or conversations with the police. Edwards v. Arizona, 451 U.S. 477, 484-85 (1981). "Interrogation" includes express questioning and its functional equivalent, that is, "any words or actions on the part of the police (other than those normally attendant to arrest and custody) that the police should know are reasonably likely to elicit an incriminating response from the suspect." Rhode Island v. Innis, 446 U.S. 291, 301 (1980). In reviewing a ruling on a motion to suppress, this Court reviews the record and all reasonable inferences therefrom in the light most favorable to the ruling, and we sustain the ruling if it is reasonably supported by the record and correct under any theory of law applicable to the case. Ramos v. State, 245 S.W.3d 410, 417-18 (Tex.Crim.App. 2008); Villarreal v. State, 935 S.W.2d 134, 138 (Tex.Crim.App. 1996). The record shows that after appellant said he wanted an attorney present, the detective terminated the interview and left the room. He attended to paperwork for about forty-five minutes and then returned to the interview room to check on appellant. He told appellant he could not talk to him because he had invoked his right to an attorney. He told appellant contact would have to be initiated by appellant and gave appellant his business card "to facilitate the contact." Appellant then said he wanted to talk. The detective reaffirmed with appellant several times that appellant wanted to talk even though his attorney was not present. Appellant then made a recorded statement. We cannot agree that handing appellant the detective's business card and telling him he would have to initiate contact constitutes the kind of "coercive police practice" that is reasonably likely to elicit an incriminating response from appellant. See Innis, 446 U.S. at 301-02. We conclude the record shows appellant himself initiated further communication or conversations with the detective. See Edwards, 451 U.S. at 484-85. We conclude no error is shown, see Villarreal, 935 S.W.2d at 138, and resolve appellant's second issue against him. CONFESSION
In his third issue, appellant contends his conviction should be reversed because his confession was given in violation of article 38.22, section 3 of the code of criminal procedure. See Tex. Code Crim. Proc. art. 38.22, § 3 (Vernon 2005). In pertinent part, this section concerns the electronic recording of an oral statement. The record shows the initial interaction between appellant and the detective was recorded by video; the camera was left running "by oversight" during almost all of the forty-five minute time period described above. The camera was then turned off because the detective had no plan to talk further to appellant. However, the detective turned the camera on again after appellant said he wanted to talk "to make sure we get everything that we need on tape." The detective testified the camera was off for "a minute or two." Other than citing article 38.22, section 3 and noting the short gap in the recording, appellant makes no argument as to how that section was violated or how such violation harmed him. We will not make appellant's argument for him. We conclude appellant has failed to preserved his complaint for appeal by inadequate briefing. See Tex. R. App. P. 38.1(h) (appellant's brief must contain clear and concise argument for contentions made, with appropriate citations to authorities and record). We resolve appellant's third issue against him. Having resolved appellant's three issues against him, we affirm the trial court's judgment.