Miguel Arciba v. State ( 2009 )

IN THE
TENTH COURT OF APPEALS
No. 10-08-00120-CR
MIGUEL ARCIBA,
Appellant
v.
THE STATE OF TEXAS,
Appellee
From the 40th District Court
Ellis County, Texas
Trial Court No. 31884CR
MEMORANDUM OPINION
Miguel Arciba was convicted of capital murder by a jury. TEX. PEN. CODE ANN. §
19.03 (Vernon 2003). He was sentenced to a mandatory sentence of life imprisonment in
the Texas Department of Criminal Justice – Institutional Division. TEX. PEN. CODE ANN.
§ 12.31 (Vernon 2003). Arciba raises ten issues on appeal. Arciba complains that the
trial court erred in denying his motion to quash his indictment. He further complains
that the trial court erred in denying his motion to suppress based on involuntariness
due to religious coercion, the totality of the circumstances, direct promises, threats, and
misrepresentations made by law enforcement, violation of his right to counsel,
improper Miranda warnings, and an illegal arrest, search, and seizure. Arciba also
complains that the trial court erred in failing to suppress hair comparison analysis
evidence and DNA evidence. Because we find that the trial court did not err, we affirm
the judgment of conviction.
Factual Background
Doris Phillips was reported missing from her rural residence on July 25, 2006.
The back door to her residence had been left open, her television was left on, and there
were other signs that she had departed suddenly, and likely, unwillingly. A shotgun
and a jewelry box were also determined to be missing from the home.
During the investigation and search for Mrs. Phillips, Arciba was interviewed at
the sheriff’s office on August 7, 2006. Arciba admitted to knowing Mrs. Phillips and
speaking with her about buying a pickup and camper. Arciba voluntarily came to the
sheriff’s office for that interview and left when it was over.
On September 2, 2006, the missing shotgun was found by chance at a flea market
in Canton. Arciba was determined to have been the person who sold the shotgun to the
vendors at the flea market. Four law enforcement officers went to Arciba’s residence at
some time after 7:00 a.m. on the morning of September 3, 2006 because they could not
reach Arciba by phone and had no other way to contact him. Arciba left with the
officers to be questioned further about the shotgun and rode in a law enforcement
vehicle. One of the officers drove Arciba’s vehicle to the sheriff’s office because the
officers had smelled alcohol in Arciba’s apartment and were concerned about his
sobriety. Arciba was told by the officers that he was not under arrest at that time.
Arciba v. State Page 2
At the station, after receiving his Miranda warning and waiving his constitutional
rights,1 Arciba initially denied any knowledge of the shotgun. After the investigators
informed Arciba that they knew he had been in possession of the shotgun, he changed
his story and stated that he had purchased the shotgun from another person in a written
statement. A warrant was then procured for Arciba’s arrest for burglary of a habitation.
Arciba was arrested while he was still at the sheriff’s department in the evening of
September 3, 2006.
Arciba was taken before a magistrate at approximately 6:30 a.m. on September 4,
2006, and bond was set on the burglary charge. On September 5, 2006, a search warrant
was issued for Arciba’s vehicle which was stored at the sheriff’s department, having
been impounded when Arciba was arrested.
Arciba was questioned for varying periods of time daily, portions of which were
videotaped. Arciba voluntarily participated in two polygraph examinations. His next
written statement was made on September 6, 2006, in which he admitted to being inside
Mrs. Phillips’s house and stealing the shotgun and jewelry box.
Toward the end of the week of questioning, different law enforcement officers
would pray with Arciba at the beginning and end of each period of questioning. One in
particular, Chief Sullins, had known Arciba’s family for many years and knew that
1 Arciba was actually given the warnings enumerated in Texas Code of Criminal Procedure art. 38.22,
which also include the right to terminate the interview at any time; however, Arciba couches his
arguments solely in terms of the requirements of Miranda v. Arizona. Miranda v. Arizona, 384 U.S. 436, 16
L. Ed. 2d 694, 86 S. Ct. 1602 (1966). Therefore, we refer to the warnings throughout this opinion as
Miranda warnings.
Arciba v. State Page 3
Arciba’s mother was in poor health. The officers instigated the prayers, which included
prayer for Arciba’s mother and for the return of Mrs. Phillips.
On September 7, 2006, Chief Sullins was about to begin questioning Arciba.
Sullins advised Arciba that as they had discussed the previous day, he had visited
Arciba’s mother the night before. After praying with Arciba, Chief Sullins showed him
a photograph of his mother and a photograph of Mrs. Phillips. Upon seeing these
photos, Arciba had a medical episode of some type where he collapsed, fell out of his
chair onto the floor, and seemed to shake for a short period of time. Emergency medical
attention was given to Arciba, and questioning ended for that day.
Arciba made two written statements on September 8, 2006. The first was made at
4:14 p.m., wherein Arciba admitted to being present in Mrs. Phillips’s house with
another person named Israel Valdez when Mrs. Phillips was injured. Arciba claimed
that Valdez had pushed Mrs. Phillips hard which caused her to fall. Arciba picked her
up and put her in a chair. Arciba went outside until Valdez called him to come back
inside. Arciba saw Valdez walking with Mrs. Phillips to Arciba’s car in the driveway.
Arciba took the shotgun and jewelry box. Valdez told Arciba he was going to leave
Mrs. Phillips at a white house. Arciba demanded to be left at a nearby bar, and Valdez
dropped him off. Arciba contends that Mrs. Phillips was still breathing at that point.
Valdez came back to the bar later and then after some time, left.
Sometime after this statement was made, law enforcement officials took Arciba
to his mother’s house. Arciba had been expressing concern about his mother to law
enforcement at various points during the questioning. Arciba’s sister was present as
Arciba v. State Page 4
well. At first, Arciba did not want to go in and upset his mother, but ultimately did so.
Two Spanish-speaking officers went in as well and listened to the conversation.
Arciba’s mother told Arciba to tell the police the truth. Arciba and his mother were
both very emotional at this meeting.
Arciba then asked for two specific investigators to come to him and that he
would take them to where Mrs. Phillips’s body was located. Arciba led the
investigators to a white house where Mrs. Phillips’s badly decomposed body was
located. Upon returning to the sheriff’s office, he made yet another written statement
wherein he added details such as what Mrs. Phillips was wearing and that Valdez had
told him that he was going to leave the body at the white house near Bardwell where
her body was ultimately found.
During the search of Arciba’s car, a knife with blood on it, a bracelet later
determined to belong to Mrs. Phillips, and some gray hairs were located in the vehicle.
Through DNA testing, the blood and hairs were determined to match Mrs. Phillips’s
DNA.
Arciba filed multiple motions to suppress his statements and the evidence
discovered in the vehicle. After a hearing, the trial court denied the motions and made
written findings of fact and conclusions of law. We will later address those findings as
relevant to the disposition of the appeal.
Motion to Quash the Indictment
In his first issue, Arciba complains that the trial court erred in denying his
motion to quash his indictment.
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Standard of Review
The Court of Criminal Appeals has recently reiterated the standard of review for
a motion to quash an indictment:
The sufficiency of an indictment is a question of law and is reviewed de
novo. State v. Moff, 154 S.W.3d 599, 601 (Tex. Crim. App. 2004) (citing
Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim. App. 1997)). The right to
notice is set forth in both the United States and Texas Constitutions. See
U.S. CONST. amend. VI; TEX. CONST. art. I, § 10. In addition, the Texas
Code of Criminal Procedure provides guidelines relating to the sufficiency
of an indictment. See, e.g., Articles 21.03, 21.04, and 21.11. Thus, the
indictment must be specific enough to inform the defendant of the nature
of the accusations against him so that he may prepare a defense. Moff, 154
S.W.3d at 601. However, the due-process requirement may be satisfied by
means other than the language in the charging instrument. Kellar v. State,
108 S.W.3d 311, 313 (Tex. Crim. App. 2003). When a motion to quash is
overruled, a defendant suffers no harm unless he did not, in fact, receive
notice of the State's theory against which he would have to defend. Id.; see
also Art. 21.19 ("An indictment shall not be held insufficient, nor shall the
trial, judgment or other proceedings thereon be affected, by reason of any
defect of form which does not prejudice the substantial rights of the
defendant").
Smith v. State, No. AP-75,479, 2009 Crim. App. LEXIS 527 at *8 (Tex. Crim. App. May 6,
2009).
The Indictment
Arciba complains that the trial court should have quashed the indictment in his
case for lack of specificity regarding the specific acts he is alleged to have committed,
more specifically, the multiple manners and means that were alleged in the indictment.
The indictment stated in part that Arciba had caused the death of the victim “by
striking her with a hand, a foot or an object unknown to the Grand Jury, by striking,
cutting or stabbing her with a knife or other object unknown to the Grand Jury, by
Arciba v. State Page 6
pushing or shoving her down or into an object unknown to the Grand Jury, or by
manner and means unknown to the Grand Jury . . . .”
An indictment may allege the several ways and means by which the proof
suggests a homicide was committed. Zanghetti v. State, 618 S.W.2d 383, 386 (Tex. Crim.
App. [Panel Op.] 1981). An indictment for murder may, in a single count, allege jointly
different means of killing without rendering the indictment duplicitous. Gentry v. State,
356 S.W.2d 793 (Tex. Crim. App. 1962). Further, an indictment alleging several means
of killing in the same count of the indictment, one of which is "in some manner and by
some means, instrument or weapon to the grand jury unknown" has been found not to
be improper. Helmus v. State, 397 S.W.2d 437, 439-440 (Tex. Crim. App. 1965). We do
not find error in the trial court’s denial of Arciba’s motion to quash the indictment.
Arciba’s first issue is overruled.
Motions to Suppress
Arciba filed multiple motions to suppress his “admissions or confessions” as
well as the hair and DNA evidence found in his vehicle which linked him to the victim.
Standard of Review on Motion to Suppress
The trial court is the "sole and exclusive trier of fact and judge of the credibility
of the witnesses" and the evidence presented at a hearing on a motion to suppress,
particularly where the motion is based on the voluntariness of a confession. Delao v.
State, 235 S.W.3d 235, 238-39 (Tex. Crim. App. 2007); Green v. State, 934 S.W.2d 92, 98-99
(Tex. Crim. App. 1996). Additionally, given this vital role, great deference is accorded
to the trial court's decision to admit or exclude such evidence, which will be overturned
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on appeal only where a flagrant abuse of discretion is shown. Montanez v. State, 195
S.W.3d 101, 106 (Tex. Crim. App. 2006); Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim.
App. 1997); Alvarado v. State, 912 S.W.2d 199, 211 (Tex. Crim. App. 1995). We afford
almost total deference to the trial court’s determinations of historical facts, especially
when those determinations involve assessment of witness credibility and demeanor.
See Masterson v. State, 155 S.W.3d 167, 170 (Tex. Crim. App. 2005).
Illegal Arrest
Arciba complains that the actions of law enforcement escorting him from his
home constituted an illegal arrest and that his car keys were unlawfully seized by law
enforcement at that time. While Arciba describes his version of events, there is no
authority and very little argument cited by Arciba to support an unlawful seizure. We
find this portion of the issue is inadequately briefed, and therefore, is waived. See TEX.
R. APP. P. 38.1(i). See also Wyatt v. State, 23 S.W.3d 18, 23 n.5 (Tex. Crim. App. 2000).
Arciba contends in his brief that the four law enforcement officers appeared at
his residence at an unreasonable hour, placed him in handcuffs, took his car keys
without his consent from his niece who was also present, and forced him to go to the
sheriff’s department with them. Yet, Arciba concedes that the handcuffs were removed
prior to his entering the police vehicle. Arciba did admit that the officers told him he
was not under arrest in his residence. Arciba’s niece, who was also present, testified
that Arciba was handcuffed by law enforcement who took the keys from her without
asking for consent.
Arciba v. State Page 8
Each of the four law enforcement officers that were present that morning at
Arciba’s residence testified at the suppression hearing. Their testimony was that they
came to Arciba’s residence sometime after 7:00 a.m. on September 3, 2006 because they
had no other way to contact him. A person other than Arciba answered the door to the
residence. The officers asked to speak with Arciba. He was sleeping in a back
bedroom. Arciba came out of the bedroom and the officers asked him to accompany
them to the sheriff’s department for some questioning. Arciba was allowed to change
clothes prior to their departure. Arciba’s apartment had a strong smell of alcohol and
Arciba had been out drinking the night before until 3:30-4:00 a.m. The officers were
concerned for Arciba’s ability to safely drive himself, so one of the officers volunteered
to drive Arciba’s car so that Arciba would have a way to come home after the
questioning. Each officer denied handcuffing Arciba at any time. Arciba willingly gave
them his car keys. Arciba voluntarily traveled with the officers and rode in the front
passenger seat of one of the officers’ vehicles.
The trial court made the following findings of fact:
The law enforcement officers went to Arciba’s residence to contact Arciba
to interview him related to his possession of the shotgun in August, 2006.
The investigators requested Arciba to accompany them to the sheriff’s
office regarding the missing shotgun. The investigators detected an odor
of alcohol about Arciba. Arciba voluntarily agreed to accompany the
officers and rode with an investigator.
Testimony that Arciba was handcuffed and was placed under arrest at the
time he accompanied the investigators was found to be not credible and
not true.
Arciba v. State Page 9
A red 1997 Ford Escort vehicle was identified as a vehicle commonly used
by Arciba. It was driven to the sheriff’s office by an investigator so that
Arciba would have the means to leave at the end of the interview.
As the trial court is the sole judge of the credibility of the witnesses and the
weight of their testimony, we conclude the trial court's findings and conclusions are
supported by the record. See Wyatt, 23 S.W.3d at 23; Penry, 903 S.W.2d at 744. We
overrule Arciba’s issue eight.
Unlawful Search
Arciba complains that the entry of law enforcement into Arciba’s residence
without a warrant, the taking of his keys, and a search of his vehicle he alleges was
undertaken enroute to the sheriff’s office constituted an illegal search. However,
beyond some general citations regarding inventory searches of vehicles and that an
unconsented police entry into a residence is a search, Arciba makes no argument and
cites no authorities as to what the search consisted of, in what manner it was illegal, or
what evidence should be suppressed as a result. We will not make Arciba’s arguments
for him and hold the allegation to be inadequately briefed and, therefore, issue seven is
waived and overruled. See TEX. R. APP. P. 38.1(h) and (i). Wyatt v. State, 23 S.W.3d at 23
n.5.
Voluntariness of Confession
Arciba complains in issues two, three, five, and six that for various reasons, the
confessions he made were involuntary and should not have been admissible in his trial.
Issue two complains that the police used religious appeals to coerce a confession. Issue
three complains that the totality of the circumstances surrounding the interrogation
Arciba v. State Page 10
were coercive and caused Arciba’s will to be overborne, which should render his
confessions involuntary and therefore inadmissible. Issue five complains that direct
promises, misrepresentations, and threats by law enforcement against Arciba rendered
his “statements and admissions” inadmissible. Issue six complains that the Miranda
warnings given to him were insufficient and therefore resulted in Arciba involuntarily
waiving his rights.
We note that only in issue three in Arciba’s brief does Arciba make any reference
to what evidence he complains of as being wrongfully not suppressed by the trial court,
the two written statements he made on September 8, 2006. Arciba also mentions only in
issue two that all “fruits” of the coerced statements should be suppressed as well, but
never defines what those fruits are said to encompass. We therefore limit our analysis
of the “fruits” to the two written statements Arciba gave to law enforcement on
September 8, 2006. The suppression of any other statement or evidence is inadequately
briefed, and therefore, waived. See TEX. R. APP. P. 38.1(h) and (i). See also Walder v. State,
85 S.W.3d 824, 828 (Tex. App.—Waco 2002, order) (per curiam).
The determination of whether a confession is voluntary is based on an
examination of the totality of circumstances surrounding its acquisition. Wyatt v. State,
23 S.W.3d 18, 23 (Tex. Crim. App. 2000) (citing Penry v. State, 903 S.W.2d 715, 744 (Tex.
Crim. App. 1995)). At a suppression hearing, the trial court is the sole judge of the
credibility of witnesses and the weight of their testimony. Id. Therefore, we will not
disturb the trial court's findings if those findings are supported by the record. Id. We
will only consider whether the trial court properly applied the law to the facts. Id.
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Religious Coercion
Arciba’s issue number two complains that “The Religious Appeals by Law
Enforcement and All Fruits Thereof, were the results of Coercion and Thus Involuntary
and should therefore have been supressed [sic].” Within this point of error, Arciba
avers that his Miranda waivers were immaterial because of the coercion by law
enforcement, and that the deceit and trickery used by the law enforcement officials
deprived Arciba of the ability to make an unconstrained, autonomous decision to
confess. Further, Arciba contends that the trial court erred in not suppressing the
“fruits” of Arciba’s statements, with no reference to what those “fruits” are.
The trial court found that officers prayed with Arciba during several interviews,
and that the last interview with Arciba where two law enforcement officers prayed with
Arciba was not an interrogation. The trial court did not otherwise address the prayers
in its findings of fact, but in its conclusions of law stated that “praying with the
defendant was not coercion, duress or undue influence so as to cause him to give a false
statement.”
We have located no Texas cases dealing with the issue of religious coercion. The
trial court viewed some of the prayers on the videos presented at the suppression
hearing. As the determiner of the credibility of the witnesses, the trial court personally
observed the testimony of the law enforcement officers and Arciba. Therefore, we defer
to the trial court’s findings that the prayers were not coercive in nature. See Wyatt, 23
S.W.3d at 23; Penry, 903 S.W.2d at 744. The United States Fifth Circuit Court of Appeals
made a similar ruling in a Louisiana state case whereby an officer prayed with a
Arciba v. State Page 12
defendant for about three hours, during and after which the defendant made several
incriminating statements. See Welch v. Butler, 835 F.2d 92, 95 (5th Cir. La. 1988), cert.
denied, 487 U.S. 1221, 108 S. Ct. 2877, 101 L. Ed. 2d 912 (1988) (police using religious
conviction to attempt to elicit confession not coercive under Fifth and Fourteenth
Amendments of U.S. Constitution). We overrule issue two.
Totality of the Circumstances
Arciba’s issue number three complains that the totality of the circumstances
show that any admissions or statements made by Arciba were the result of his will
being overborne and thus involuntary. "Voluntariness is decided by considering the
totality of the circumstances under which the statement was obtained." Creager v. State,
952 S.W.2d 852, 855 (Tex. Crim. App. 1997). The ultimate question is whether Arciba’s
will was "overborne" by police coercion. Id. at 856. In answering this question, courts
may consider various factors, including the length of detention, incommunicado or
prolonged detention, denying a family access to a defendant, refusing a defendant's
request to telephone a lawyer or family, and physical brutality. Nenno v. State, 970
S.W.2d 549, 557 (Tex. Crim. App. 1998), overruled on other grounds, State v. Terrazas, 4
S.W.3d 720, 727 (Tex. Crim. App. 1999).
Arciba contends that the length of the interrogations over the span of six days led
to his exhaustion and health issues and that the misleading nature of the questioning by
law enforcement renders the two statements he made on September 8, 2006 as
involuntarily given due to the coercive atmosphere in which they transpired.
Arciba v. State Page 13
The trial court, in its findings, stated that the length of interrogations was not
unduly long or so onerous as to constitute coercion, duress, or undue influence.
Further, the trial court found that Arciba was allowed breaks, given the opportunity for
meals, allowed the use of tobacco, and allowed to sleep. Additionally, the trial court
found that the interviews were generally amicable and without coercion, duress, or
undue influence, that Arciba was repeatedly given the warnings required by art. 38.22
of the Texas Code of Criminal Procedure, that he knew and understood those rights and
voluntarily waived them, and that Arciba willingly engaged in discussions in an
attempt to convince the investigators that he was not responsible for the offense.
As we defer to the trial court’s credibility determinations, we cannot say the trial
court erred by finding that Arciba’s oral statements were voluntarily given. See Wyatt,
23 S.W.3d at 23; Penry, 903 S.W.2d at 744. We overrule issue three.
Direct Promises, Misrepresentations, and Threats
Arciba complains in issue five that the law enforcement officers engaged in
deception by using his mother as an “extrinsic consideration.” Later, he alludes to the
idea that this constituted “a plausible threat to pray [sic] on the frailty and health of his
mother whom was so dear.” However, Arciba presents no authority or references to
the record to support his position. Therefore, this portion of this issue is inadequately
briefed, and therefore, waived. See TEX. R. APP. P. 38.1(h) and (i).
Next in this issue, Arciba contends that the totality of the circumstances made his
statement involuntary. We have already resolved this issue against Arciba in our
discussion of issue number three. Then, Arciba complains about involuntary
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statements, admissions, and confessions resulting from one law enforcement officer’s
false representation that whatever Arciba said would stay in the room and no one
would know what he said. This transpired during the second polygraph session on
September 8, 2006, which was videotaped without the knowledge or consent of the
polygraph examiner, in violation of the policies of the United States Secret Service
which conducted the polygraph. Arciba then refers back to the issue of references to his
mother and her poor health. Arciba does not explain what effect, if any, these alleged
issues had on him other than as an extension of his totality argument. We cannot
determine with any degree of certainty what this multifarious issue is complaining of
and what relief Arciba is requesting from it. See TEX. R. APP. P. 38.1(i). Therefore, it is
waived. Issue number five is overruled.
Waiver of Rights
Arciba complains that he was given insufficient Miranda warnings prior to giving
an oral or written confession, which rendered the waiver involuntary. See Miranda v.
Arizona, 384 U.S. 436, 16 L. Ed. 2d 694, 86 S. Ct. 1602 (1966). Arciba mentions the Texas
Code of Criminal Procedure in the heading of this issue but does not refer to it in the
body of his argument. Therefore, we will only construe his complaint as a failure to
give proper Miranda warnings. We also note that Arciba does not refer to any particular
oral statements; therefore, we will only discuss the written statements. See TEX. R. APP.
P. 38.1(i).
Arciba contends that he was unable to read the written Miranda warnings which
were listed at the top of each page of his written statements because he did not have his
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reading glasses. Arciba does not deny that he placed his initials on each line next to
each right that is required to be given and waived by Miranda on each of the four
written statements taken that week or that he signed each page of the written
statements at the bottom. Arciba makes one blanket statement that he “was unable to
read and fully understand the Waiver of Rights documents with Miranda warnings on
statement giving [sic] September 3, 2006, September 6, 2006, September 8, 2006 and
September 9, 2006.” Arciba makes no citations to the record to advance this argument.
Arciba does, however, quote a section of testimony shown on a video of the
questioning of September 7, 2006, whereby Chief Sullins gave Arciba his reading glasses
to review a waiver of rights statement. No written statement or admission was made
on that day by Arciba. In addition, Arciba admitted at the suppression hearing that he
knew that he had each of the rights enumerated in Miranda prior to signing the written
statements, that he had initialed each line next to each one as listed after receiving them,
and that he signed those waivers voluntarily. The trial court found that Arciba was not
prevented from reading documents, and when given reading glasses, he read
documents without complaint.
The trial court’s findings of fact regarding this issue for each written statement
were that “Arciba knew he had a right to an attorney, knew he did not have to make a
statement, was advised of his statutory rights, freely and voluntarily provided the
statement, and was not under duress or subject to coercion.”
Arciba also argues that an investigator’s failure to read the rights verbatim to
him on one occasion renders the waivers insufficient. The occasion Arciba advances
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was prior to his taking a polygraph examination on September 8, 2006, and no written
statement was made in that examination. However, Arciba does not explain how this
failure, if any, rendered any statement as involuntary. Further, the trial court’s findings
are supported by the record. See Wyatt, 23 S.W.3d at 23; Penry, 903 S.W.2d at 744. Issue
number six is overruled.
Denial of Right to Counsel
Arciba complains in issue four that the trial court erred by not suppressing his
statements and admissions because Arciba requested an attorney during his first
interview. Arciba points to no specific statements or admissions that he made that he
now complains about beyond the statement that “appellant challenges the trial court’s
finding that he reinitiated conversation with police.”
Arciba’s heading of his fourth issue mentions this asserted violation as one
encompassing the Fifth and Sixth Amendments to the United States Constitution.
Arciba makes no further reference to the Sixth Amendment. We will not make Arciba’s
arguments for him and hold this allegation to be inadequately briefed, and therefore,
waived. See TEX. R. APP. P. 38.1(h) and (i). Wyatt v. State, 23 S.W.3d at 23 n.5.
Regarding Arciba’s Fifth Amendment claim, Arciba testified at the suppression
hearing that he was not given his Miranda warnings and that he requested an attorney
at the first interview with law enforcement on September 3, 2006, but that his request
was ignored. The officers involved in the questioning of Arciba each testified that
Arciba was repeatedly given his Miranda warnings, including prior to the beginning of
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the questioning on September 3, 2006. The officers further testified that Arciba never
invoked his right to counsel during the entire time he was questioned.
The trial court made the following findings of fact regarding September 3, 2006
and Arciba’s request for counsel:
Arciba was interviewed and provided oral and written statements. Arciba
voluntarily provided the statements and was not in custody. Arciba was
also advised of his rights. There was no coercion, duress, and no request
for an attorney regarding the voluntary statements. Testimony by Arciba
that he requested an attorney was determined not credible and not true.
As the trial court is the sole judge of the credibility of the witnesses and the
weight of their testimony, we conclude the trial court's findings and conclusions are
supported by the record. See Wyatt, 23 S.W.3d at 23; Penry, 903 S.W.2d at 744. We
overrule issue four.
Admissibility of Scientific Evidence
Arciba also contends in issues nine and ten that the scientific evidence found
during the investigation should have been suppressed by the trial court. Texas Rule of
Evidence 702 provides: "If scientific, technical, or other specialized knowledge will
assist the trier of fact to understand the evidence or to determine a fact in issue, a
witness qualified as an expert by knowledge, skill, experience, training, or education
may testify thereto in the form of an opinion or otherwise.” TEX. R. EVID. 702. The trial
court's task in assessing admissibility under Rule 702 is to determine whether the
scientific evidence is sufficiently reliable and relevant to help the jury in reaching
accurate results. Hartman v. State, 946 S.W.2d 60, 62 (Tex. Crim. App. 1997); Kelly v.
State, 824 S.W.2d 568, 572 (Tex. Crim. App. 1992). To be considered reliable, evidence
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based on a scientific theory must satisfy three criteria: (1) the underlying scientific
theory must be valid; (2) the technique applying the theory must be valid; and (3) the
technique must have been properly applied on the occasion in question. Hartman, 946
S.W.2d at 62; Kelly, 824 S.W.2d at 573. Kelly also provided a list of non-exclusive factors
that could affect a trial court's determination of reliability. These are: (1) the extent to
which the underlying scientific theory and technique are accepted as valid by the
relevant scientific community, if such a community can be ascertained; (2) the
qualifications of the expert(s) testifying; (3) the existence of literature supporting or
rejecting the underlying scientific theory and technique; (4) the potential rate of error of
the technique; (5) the availability of other experts to test and evaluate the technique; (6)
the clarity with which the underlying scientific theory and technique can be explained
to the court; and (7) the experience and skill of the person(s) who applied the technique
on the occasion in question. Kelly, 824 S.W.2d at 573.
Before novel scientific evidence may be admitted under Rule 702 the proponent
must persuade the trial court, by clear and convincing evidence, that the evidence is
reliable and therefore relevant. Kelly, 824 S.W.2d at 573.
Hair Evidence
Arciba asserts that the trial court erred in admitting the testimony of the State's
expert, Juan Rosas, who is a forensic chemist and hair-comparison analyst with the
Texas Department of Public Safety. Rosas compared the hair retrieved from the victim
to the hair removed from Arciba’s vehicle. Arciba sought to prevent the jury from
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hearing the results of this comparison because it is scientifically unreliable and because
its admission was more prejudicial than probative to Arciba.
The trial court held a hearing on Arciba’s motion to suppress to determine the
admissibility of Rosas’s testimony. Rosas testified that he had received his training in
hair-comparison analysis at the DPS headquarters in Austin. Rosas had been a forensic
chemist with DPS for twenty-six years at the time of his testimony, and had been
performing hair-comparison analysis since 1984. In order to become a qualified hair-
comparison analyst he had to complete DPS training in forensic-hair comparison and
work on various hair-comparison cases under direct supervision. Rosas continues his
training by taking courses offered by the FBI and DPS. Rosas explained how he tested
the hair found in Arciba’s vehicle to the hair taken from the victim's head. He
performed the test at the Austin DPS lab. Rosas testified that hair-comparison analysis
is considered an accepted science within the scientific community and that there is
literature on this topic. Persons performing hair-comparison analysis follow the same
test procedures. When making the hair-comparison analysis in this case, Rosas
followed the same techniques and procedures. The results of his testing were peer
reviewed as they are in every case. Hair-comparison analysis can be explained in court.
The trial court denied the motion to suppress the hair-comparison analysis and
allowed Rosas to testify before the jury. Rosas testified that the hairs found in Arciba’s
vehicle were microscopically consistent with those recovered from the victim.
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Reliability
The State satisfied the three criteria stated in the Hartman-Kelly decisions. The
proponent of the evidence testified that the underlying scientific theory is valid and that
the technique applying the theory is valid; that the scientific community considers hair-
comparison analysis an accepted science; and that all hair-comparison analysts,
including Rosas, use the same scientific theory and technique when performing hair
analysis. Rosas properly applied the technique in this case. The scientific theory and
technique he used to perform the hair analysis are the same as those used by other
analysts. There was evidence of Rosas's qualifications, experience, and skill to perform
the test, the existence of literature supporting the underlying scientific theory and
technique, the availability of other experts to test and evaluate the technique, and the
clarity with which the underlying scientific theory and technique can be explained to
the court.
Relevancy
Even if the proponent has satisfied the Hartman-Kelly criteria, the trial court may
exclude the evidence if it determines that the probative value is outweighed by some
factor identified in Rule 403. TEX. R. EVID. 403. The hair-comparison analysis is
probative because it helps to show the similarity of the hair in Arciba’s vehicle to the
victim's hair. The evidence is not unfairly prejudicial, does not confuse the issues, does
not mislead the jury, and is not cumulative. We hold that the evidence supports the
trial court's findings and that the court did not abuse its discretion by admitting Rosas's
testimony. We overrule issue nine.
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DNA Evidence
Arciba complains of the trial court’s error in denying his motion to suppress the
DNA testing completed on the knife and hairs found in his vehicle because of the
unlawful seizure of his person and his keys and the unlawful search of the vehicle. He
further complains that the evidence should have been excluded by Texas Rule of
Evidence 403 in that the prejudicial value of such evidence outweighs the probative
value because of accuracy of testing procedures.
Arciba presents no authority in support of these claims. Therefore, this objection
is inadequately briefed and presents nothing for our review. See TEX. R. APP. P. 38.1(h)
and (i). See also Walder v. State, 85 S.W.3d 824, 828 (Tex. App.—Waco 2002, order) (per
curiam). We overrule issue ten.
Conclusion
We find that the trial court did not abuse its discretion in its refusal to suppress
evidence and in denying Arciba’s motion to quash the indictment. We affirm the
judgment of the trial court.
TOM GRAY
Chief Justice
Before Chief Justice Gray,
Justice Reyna, and
Justice Davis
Affirmed
Opinion delivered and filed December 30, 2009
Do not publish
[CRPM]
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