Roberto Cardenas v. State ( 2015 )

NUMBER 13-14-00530-CR
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI – EDINBURG
ROBERTO CARDENAS GARZA, Appellant,
v.
THE STATE OF TEXAS, Appellee.
On appeal from the 206th District Court
of Hidalgo County, Texas.
MEMORANDUM OPINION
Before Justices Garza, Benavides and Longoria
Memorandum Opinion by Justice Garza
Appellant, Roberto Cardenas Garza was convicted of capital murder, see TEX.
PENAL CODE ANN. § 19.03(a)(2) (West, Westlaw through 2015 R.S.), and was sentenced
to life imprisonment. By two issues on appeal, appellant argues: (1) the trial court erred
in denying his pre-trial motion to suppress written statements he made to police; and (2)
the evidence adduced at trial was insufficient to support the conviction. We affirm.
I. BACKGROUND
A deceased and decomposing human body was discovered on August 17, 2011,
in an isolated rural area south of McCook in Hidalgo County. The decedent had been a
victim of a gunshot wound to the back of the neck. Investigators arrived and found, in
close proximity to the body, three white plastic “zip ties” that had been cut. Police also
recovered shotgun casings and a spent bullet found near and underneath the body.
While at the scene, police were advised by dispatch of a report of a missing person
with tattoos that matched those of the decedent. Investigator Laura Gonzalez made
contact with Mayra Ibarra, the person who made the missing person report, and was able
to identify the deceased as Ibarra’s husband, David Alejandro Martinez. According to
Ibarra, the last time she saw her husband was when their neighbor, Jose Francisco
Rodriguez, left with him from Rodriguez’s property.
Officers also made contact with Rodriguez, who reported that he had seen
Martinez the previous day. Rodriguez testified at trial that Martinez was involved with
smuggling people and drugs, and with stealing drugs. Rodriguez stated that, on the day
he last saw Martinez, a man named David driving a green Chevrolet Malibu came by his
property looking for Martinez. Rodriguez left with David to a mechanic shop located on
Moorefield Road. When he arrived, two men ordered Rodriguez to undress and
threatened him with a gun. The men asked Rodriguez if he was “Paco”; he said no. The
men then asked Rodriguez if he knew Martinez or “Paco,” and they asked where they
could find Martinez. They asked “something about [Martinez], something about ‘mota’ or
marijuana.” The men told Rodriguez that if he did not bring Martinez to them, “they would
2
harm my family.” Rodriguez could not say whether either of the men who threatened him
were located in the courtroom at trial. Rodriguez decided to get Martinez and bring him
to the Moorefield Road shop. In order to lure Martinez to come with him, Rodriguez falsely
told him that he “had a person that had illegals that he could take up north.” Rodriguez
dropped Martinez off at the Moorefield Road shop and left. He observed men “push[ing]”
Martinez into the shop as he left. Rodriguez later was able to pick out appellant and David
Cedillo as the two men who threatened him in photo lineups presented by police.
Oscar Gonzalez, a sheriff’s office crime scene specialist, was asked to process
three vehicles that had been impounded, including a Ford pickup truck that was observed
departing appellant’s home and which was being driven by Tomas Ricardo Garza,
appellant’s brother. The truck contained a .380 Auto caliber pistol and matching
ammunition. Gonzalez also processed a green Chevrolet Malibu which was being driven
by Cedillo. The trunk of the green Malibu was empty except for a dirty pair of black boots
in the middle of the trunk. Gonzalez stated that the zip ties found at the scene were tested
for DNA, but did not match the DNA of the decedent. None of the evidence collected
from the vehicles was sent for DNA analysis. The pistol was determined not to be the
murder weapon.
Police executed a search warrant on a residence on Moorefield Road in Mission.
There was a main house and a guest house on the property. There were clothes and a
television in a bedroom on the second floor of the guest house. Empty gun holsters and
a cardboard box for a gun were found in the main house. Appellant’s passport was also
found in the main house. Appellant arrived at the residence while the search was ongoing
and later agreed to go to the sheriff’s office for questioning.
3
Police executed another search warrant on a suspect’s residence on Tulipan
Street in Mission. An auto insurance identification card bearing the names of appellant
and his wife were recovered. Police also found a “clear plastic baggy with a green, leafy
substance” as well as two lighters from the residence.
Over the course of two days, Hidalgo County Sheriff’s Office investigators took
three separate written statements from appellant. The first statement, which states that
it was taken from 1:00 p.m. to 2:11 p.m. on August 19, 2011, reads as follows:
I would like to state that I am currently living at my daughter’s home in
Mission, TX. I used to live at 9374 N. Moorefield Road, which is on about
8 mile line, in rural Mission, TX. I have not lived at 9374 N. Moorefield Rd
for about the last month and a half. My wife and I decided to move out
because we could not pay the mortgage anymore. My wife and I are
currently selling the home on Moorefield Rd.
I would like to state that I have been asked numerous questions about a
homicide investigation that the Hidalgo County Sheriff’s Office is currently
conducting. I would like to state that I was asked about Monday the 15th of
2011. I was asked to recall my whereabouts and who I interacted with on
that day.
I recall that I opened up the shop that day, but I do not remember at what
time. Once I opened the shop I started to move the vehicles that are for
sale out and near the roadway. I would like to state that about 10 minutes
later “Miagi” got to the shop. I told “Miagi” that there was no work to be done
and that if he had an[y] errands to run he could go handle that and come
back later. “Miagi,” who is the painter at the shop, told me that he had some
hooks to go buy some clamps for molding on a vehicle that he was finishing
a paint job on. “Miagi” left.
About 10 minutes after “Miagi” left, David [Cedillo] got there. David is my
cousin and he lives at the property that I recently vacated, which is next
door to the shop. David runs a car lot out of my shop. I stayed there with
David for 15 to 20 minutes. I then left. I went to go buy feed for the animals
at my ranch. I bought the feed at 2 mile line, between Los Ebanos and
Trosper. The store is South West Hay & Feed.
After I left the feed store I went to pick up my daughters from school. My
daughters get out of school at 11:30am. I arrived late to pick them up. At
around noon I received a call from my daughter’s school to see if I was
going to pick them up. About 5 minutes later I got to the school and picked
4
them up. I took my daughters home. I took a short nap there at the house.
David called me and told me he needed to take the King Ranch truck to see
how much they would give them for a trade in. I drove towards the shop. I
dropped my girls off at the day care center near the truck. I then picked up
David and we went to Spikes Ford. We got the quote David needed and
we went back to the shop. I left David there, went and picked up my
daughters, and went home.
Later that night, around 9:00pm–9:30pm I drove to the shop to put the
vehicles that are for sale back in their places. I returned home after doing
so.
I would like to state that I have no other knowledge, or any information that
may lead to the suspects in this case.
The second statement, which states that it was taken from 1:49 a.m. to 3:34 a.m. on
August 20, 2011, reads as follows:
I want to say I already gave a statement to the investigators and I would like
to add to the statement.
I know a man that is from Camargo, Mexico. I only know the man as Pepe
or El Negro. I have known him for around 3 years. Pepe is in the smuggling
business and moves illegal aliens and drugs. l have worked for Pepe in the
past.
Pepe is around 35 or 38 years old, 5’5”, 220 lbs. short black hair and dark
skin. He has a tattoo of the Santa Muerte on his left forearm. He drives a
white 4 door F-150 [] ranch style truck with a white brush guard and white
head rack and tool box. The truck has green Mexico License Plates.
One month ago Pepe came by my house and said he was looking for a
stash house. He asked if he could rent my guest house. I told him no
because my house was already burned. I told him about a ranch that was
for rent on 6½ Mile and Trosper Road. He went and looked at it and [said]
he didn’t like it. I then told him my uncle Lupe Garza had a house for rent.
Lupe’s house is on the comer of 2 Mile Line and Goodwin Road. Pepe
rented the house and took one of my workers named Abel to take care of it.
I had not heard [from] Pepe until this past Friday. Pepe called me and said
he needed to talk to me. He was mad because someone had stolen some
of his marihuana. I told him to meet up with me at the shop on Moorefield
Road.
l met up with him that same Friday at around 2:00 or 3:00 P.M. Pepe told
me Abel had stolen his marihuana and accused me of [stealing] it too. I told
5
him I had nothing to do with stealing his drugs. He told me I needed to find
Abel for him. l told him I would look for Abel and call him when I found him.
Pepe left and I drove by a mechanic shop that is by 1½ Mile Line and Abram
Road. I asked a skinny guy at the mechanic shop if he knew a man named
Paco. He said the owner of the sho[p] was named Paco and I drove off.
The reason I drove to the mechanic shop was because I remember Abel
telling me that a man named Paco and [Martinez] had crossed him from
Mexico. Abel once showed me the house Paco lived in and it was a blue
mobile home on the same street as the mechanic. He took me by the house
because Paco had stolen $1000.00 from Abel and he wanted me to talk to
Paco and get his money back.
After I drove by the mechanic shop I went and my family and l drove to Port
Mansfield. We stayed in a rented cabin and then drove home on Sunday.
On Sunday, at around 8:00 P.M., I called Pepe and told him about Paco
and [Martinez]. Pepe came by in his white truck and picked me up. l
showed him where the mechanic lived and he took me back to the shop.
When we got back to the shop he told me to bring Abel to him or he was
going to take me to Mexico. Pepe then left and I went home.
This past Monday, at around 9:00 A.M., I arrived at my used car dealer shop
and paint and body shop. The shop is located at 8 Mile Line and Moorefield
Road. I opened the shop and the paint man named Miagi got there with his
wife. I told Miagi to leave and that I would call him when he could come
back. I told him to leave because I was going to take care of this business
with Abel. David got there in his blue Malibu. I asked David about the
mechanic named Paco that lived in the trailer house by Abram Road. David
said he knew Paco and that he had the man’s phone number. David called
him and asked him to come over to the shop. Before the mechanic got to
the shop, Pepe pulled up in his white truck. I told him the mechanic was on
his way [] over.
The mechanic then got to the shop in a small white two door truck. David
and the mechanic walked into the shop office and P[e]pe told me to check
both of them for guns. Pepe had pulled out a gun and was pointing them at
the mechanic. I asked the mechanic about Abel and he said he did not
know about any Abel. I asked if he was the same Paco that crossed Abel
into the U.S. The mechanic said he was not Paco and that Paco lived in
the blue trailer down the street from his mechanic shop. The mechanic said
Paco and Paco’s brother in law [Martinez] were the ones that crossed
people illegally. Pepe was telling him he wanted the marihuana they had
stolen from him. He said he was not going to die for something he did not
do and he would bring Paco or the brother in law to us.
The mechanic left in the small white truck and came back around 10:30
6
A.M. with a man. I had never seen this man before. The man was around
30 or 35 years old. He had long black hair and was wearing [] shorts and
sandals. I do not remember the shirt he was wearing. The mechanic just
dropped the man off and left. The man walked into the office and David me
and Pepe were inside. As soon as the man walked in, Pepe punched the
man on the right side of the head behind the ear. The man fell to the floor
next to the sofa and Pepe pulled out his gun. Pepe pointed it at him. The
gun was a black gun that you pull the slide back to load. Pepe stood over
the man who was cowering on the floor saying what did I do what did I do.
Pepe told me to tie him up and handed me some white plastic ties. I tied
the man’s hands in the front and Pepe put the gun down on the table and
started beating him with his fist. He was punching the man around the head
and accusing him of stealing his marihuana. Pepe asked the man if he was
Paco and the man said he was [Martinez] and his brother in law was Paco.
[Martinez] told Pepe a man named Chuey had sent him to steal the
marihuana. [Martinez] said he Paco, Abel and another man stole the
marihuana and put it at his house. [Martinez] said Chuey then took the
marihuana and had not paid him anything. David was in the room with us
while everything was happening but did not do anything. [Martinez] told
Pepe he would show him where Chuey lived.
Pepe then grabbed [Martinez] and told him he was taking him to Mexico.
[Martinez] told him to talk to his “[j]efe” in Dia[z] Orda[z], Mexico. I do not
know if he me[a]nt his father [or] his boss. Pepe then put [Martinez] in his
white truck and took him.
Finally, the third statement, which states that it was taken from 1:49 a.m. to 5:52 a.m. on
August 20, 2011, reads as follows:
I would like to add to my first statement that Pepe told me for us to go to
Mexico with [h]im. I told him I was not going to go. He said that we were
just to go talk with [Martinez]. At about 4:00pm or 5:00pm, Pepe walked
[Martinez] out of the shop and we got into the truck. Pepe was driving,
[Martinez] was lying down on the back seat, and I was on the passenger
side front seat. [Martinez] took us to 1½ north Abram Rd. to a subdivision
on the west side to a blue mobile home and told us that was where Paco
lived. We then drove north on Abram Rd. to 3 Mile line then turned east
and then north on Moorefield Rd. We then drove towards M[c]Cook, Texas
and turned west on 14 Mile line. We then turned south on Abram Rd. and
drove south about 3 to 4 miles. We then drove east on a dirt road and
reversed into a dirt road that lead into a grassy field. I then realized that
Pepe was going to kill [Martinez]. Pepe got of the driver side of the truck
and walked towards the back of the truck. I got off the passenger side of
the truck and I then got [Martinez] out of the back passenger side of the
truck. [Martinez] walked to the back of the truck. Pepe cut off one of the
plastic ties.
7
Pepe walked him about 100 yards and then he cut off the rest of the plastic
ties. Pepe then made him take off his clothes and he kneeled him [Martinez]
down facing west. Pepe then shot [Martinez] once in the back of the head
with the gun that he had. Pepe then walked back to the truck and threw
[Martinez]’s clothes in the back seat. We then drove to La Carretas Drive
Thru at Doffing Rd. and 7 mile line. Pepe drove through the drive thru store
towards the back where Pepe threw the clothes in the dumpster. We then
drove to my shop and Pepe left. He took the gun with him. Pepe told me
while we drove back to the shop after he shot [Martinez] for me not to say
anything and for me to continue looking for the rest of the guys.
Police efforts to identify and locate “Pepe” were unsuccessful.
Appellant was convicted of capital murder and, because the State did not seek the
death penalty, appellant was sentenced to life imprisonment. See id. § 12.31(a)(2) (West,
Westlaw through 2015 R.S.). This appeal followed.
II. DISCUSSION
A. Sufficiency of the Evidence
We first address appellant’s second issue regarding sufficiency of the evidence to
support conviction. See, e.g., Lucas v. State, 245 S.W.3d 611, 612 (Tex. App.—Houston
[14th Dist.] 2007, pet. ref’d) (noting that issues calling for rendition of judgment should be
considered before issues calling for remand); see also TEX. R. APP. P. 43.3.
1. Standard of Review and Applicable Law
In reviewing the sufficiency of evidence supporting a conviction, we consider the
evidence in the light most favorable to the verdict to determine whether any rational trier
of fact could have found the essential elements of the crime beyond a reasonable doubt.
Hacker v. State, 389 S.W.3d 860, 865 (Tex. Crim. App. 2013); see Brooks v. State, 323
S.W.3d 893, 895 (Tex. Crim. App. 2010) (plurality op.) (citing Jackson v. Virginia, 443
U.S. 307, 319 (1979)). We give deference to “the responsibility of the trier of fact to fairly
resolve conflicts in testimony, to weigh the evidence, and to draw reasonable inferences
8
from basic facts to ultimate facts.” Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim. App.
2007) (citing Jackson, 443 U.S. at 318–19). When the record of historical facts supports
conflicting inferences, we must presume that the trier of fact resolved any such conflicts
in favor of the prosecution, and we must defer to that resolution. Padilla v. State, 326
S.W.3d 195, 200 (Tex. Crim. App. 2010).
Sufficiency is measured by the elements of the offense as defined by a
hypothetically correct jury charge. Malik v. State, 953 S.W.2d 234, 240 (Tex. Crim. App.
1997). Such a charge is one that accurately sets out the law, is authorized by the
indictment, does not unnecessarily increase the State’s burden of proof or unnecessarily
restrict the State's theories of liability, and adequately describes the particular offense for
which the defendant was tried. Id. Here, a hypothetically correct jury charge that is
consistent with the indictment would instruct the jury to find appellant guilty of capital
murder if he: (1) intentionally caused Martinez’s death; and (2) was then and there in the
course of committing or attempting to commit kidnapping. See TEX. PENAL CODE ANN.
§ 19.03(a)(2). A person commits kidnapping if he intentionally or knowingly abducts
another person. Id. § 20.03(a) (West, Westlaw through 2015 R.S.). “Abduct” means “to
restrain a person with intent to prevent his liberation by: (A) secreting or holding him in a
place where he is not likely to be found; or (B) using or threatening to use deadly force.”
Id. § 20.01(2) (West, Westlaw through 2015 R.S.).
A person acts intentionally with respect to the nature of his conduct or to a result
of his conduct when it is his conscious objective or desire to engage in the conduct or
cause the result. Id. § 6.03(a) (West, Westlaw through 2015 R.S.). A person acts
knowingly with respect to the nature of his conduct or to circumstances surrounding his
9
conduct when he is aware of the nature of his conduct or that the circumstances exist.
Id. § 6.03(b). A person acts knowingly with respect to a result of his conduct when he is
aware that his conduct is reasonably certain to cause the result. Id.
A hypothetically correct jury charge in this case would permit the jury to convict
appellant either as a principal or as a party to the offense. Under the law of parties, “[a]
person is criminally responsible for an offense committed by the conduct of another
if, . . . acting with intent to promote or assist the commission of the offense, he solicits,
encourages, directs, aids, or attempts to aid the other person to commit the offense.” Id.
§ 7.02(a)(2) (West, Westlaw through 2015 R.S.). Further:
If, in the attempt to carry out a conspiracy to commit one felony, another
felony is committed by one of the conspirators, all conspirators are guilty of
the felony actually committed, though having no intent to commit it, if the
offense was committed in furtherance of the unlawful purpose and was one
that should have been anticipated as a result of the carrying out of the
conspiracy.
Id. § 7.02(b).
Evidence is sufficient to convict under the law of parties where the defendant is
physically present at the commission of the offense and encourages its commission by
words or other agreement. Salinas v. State, 163 S.W.3d 734, 739–40 (Tex. Crim. App.
2005). Party participation may be shown by events occurring before, during, and after
the commission of the offense, and may be demonstrated by actions showing an
understanding and common design to do the prohibited act. Id. at 740.
2. Analysis
Rodriguez testified that he identified appellant as one of the two men who
threatened him with a gun and demanded that he bring Martinez to them or they would
10
harm his family.1 Rodriguez stated that he complied with the demand and delivered
Martinez to the two men. Martinez was not seen alive again.
Moreover, although appellant challenges the admissibility of his written
statements, we must consider all evidence actually before the jury in our sufficiency
analysis. See Moff v. State, 131 S.W.3d 485, 489 (Tex. Crim. App. 2004). In his
statements, appellant told police that he tied up Martinez’s hands using “white plastic ties”
while “Pepe” beat Martinez. White plastic zip ties were found, already cut, near Martinez’s
dead body. Appellant stated that he was in the passenger seat of the truck, and Martinez
was lying down in the back seat bound by the zip ties, while “Pepe” drove on a dirt road
for several miles to a remote “grassy field.” According to appellant’s statement, after he
realized “Pepe” was going to kill Martinez, appellant took Martinez out of the truck and
observed as “Pepe” shot and killed Martinez.
Police could not locate or confirm the existence of “Pepe”; but even if the jury
believed that “Pepe” actually existed and orchestrated the crime, as appellant asserted in
his statement, the jury could still have found appellant guilty under the law of parties in
light of appellant’s statements. In particular, a rational juror could have reasonably
concluded that, by binding Martinez in zip ties and taking Martinez out of the truck after
realizing “Pepe” was going to kill Martinez, appellant intentionally aided “Pepe” in
kidnapping and killing Martinez. See TEX. PENAL CODE ANN. § 7.02(a)(2).
Appellant argues principally that there was no evidence that he had the “conscious
objective or desire” to kill Martinez. See id. § 6.03(a). But intent may generally be inferred
1 Rodriguez refused to identify appellant in the courtroom at trial, but the evidence established that
he had previously identified appellant in a photo lineup presented by police.
11
from circumstantial evidence such as acts, words, and the conduct of the appellant.
Guevara v. State, 152 S.W.3d 45, 50 (Tex. Crim. App. 2004). Here, such evidence
included Rodriguez’s photo lineup identification of appellant as one of the men who
demanded, at gunpoint, that Rodriguez bring Martinez to them; as well as appellant’s
statements that he bound Martinez with zip ties and took Martinez out of the truck after
realizing that “Pepe” was going to kill Martinez. The jury could have inferred from this
evidence that appellant harbored the specific intent to kidnap and kill Martinez. Even if it
did not believe that appellant had the specific intent to kill Martinez, a rational juror could
have reasonably concluded that appellant and “Pepe” attempted to carry out a conspiracy
to kidnap Martinez; that “Pepe” killed Martinez in furtherance of the kidnapping; and that
the murder should have been anticipated as a result of the carrying out of the conspiracy.
See TEX. PENAL CODE ANN. § 7.02(b).
The jury is the sole judge of the credibility of witnesses and the weight to be given
the testimony, and it may choose to believe some testimony and disbelieve other
testimony. Lancon v. State, 253 S.W.3d 699, 707 (Tex. Crim. App. 2008). We may not
act as a “thirteenth juror” by substituting our judgment for that of the jury. See Brooks,
323 S.W.3d at 905. We conclude that the evidence was sufficient to allow a rational juror
to find appellant guilty of capital murder as a principal, as a party, or as a co-conspirator.
See TEX. PENAL CODE ANN. § 7.02(a)(2), (b). We overrule appellant’s second issue.
B. Motion to Suppress
By his first issue, appellant argues that the trial court erred by denying his motion
to suppress the three written custodial statements on grounds that his Fifth Amendment
12
right to counsel was violated. See U.S. CONST. amend. V (“No person . . . shall be
compelled in any criminal case to be a witness against himself.”).
1. Standard of Review and Applicable Law
In reviewing claims concerning the admission of statements made as the result of
custodial interrogation, we conduct a bifurcated review as articulated in Guzman v. State.
See Pecina v. State, 361 S.W.3d 68, 78–79 (Tex. Crim. App. 2012) (citing Guzman v.
State, 955 S.W.2d 85, 89 (Tex. Crim. App. 1997)). We afford almost total deference to
the trial court’s rulings on questions of fact and on questions involving the application of
law to fact that turn upon a witness’s credibility and demeanor. Id. at 79. We review de
novo the trial court’s rulings on questions involving the application of law to facts that do
not turn upon a witness’s credibility and demeanor. Id.
2. Suppression Hearing
Three Hidalgo County Sheriff’s Officers testified at the suppression hearing.
Sergeant Herman Perez stated that he was a supporting investigator in the case and that
he took a statement from appellant on August 19, 2011. Perez stated that he advised
appellant of his constitutional rights to have an attorney present during questioning, to
remain silent, to terminate the interview at any time, and against self-incrimination.
According to Perez, appellant indicated that he understood each of the rights and that he
would agree to waive those rights. Perez stated that appellant did not request an attorney
at any point during the interview, nor did he ask to terminate the interview. Perez stated
that appellant was not under the influence of drugs or alcohol during the interview, nor
was he denied access to basic necessities such as restroom, food, or cigarettes. Perez
denied coercing or threatening appellant into making the statement.
13
A Miranda rights warning form containing appellant’s initials and signature was
entered into evidence. On the form, which stated that it was taken at 11:15 a.m. on
August 19, 2011, appellant indicated that he understood the rights and would like to waive
them. Perez testified that, after typing appellant’s statement, he gave appellant the
opportunity to review the statement and to make changes, but appellant did not request
any changes.
On cross-examination, Perez acknowledged that, although all five of the Miranda
warnings were contained on the written statement, appellant’s initials appeared only four
times. Defense counsel posited that appellant declined to place his initials next to the
statement that he has the right to have a lawyer present during questioning. Perez
disagreed, stating that “I can’t tell you which one he left out, sir.” Perez acknowledged
that he knew appellant had a disability but did not recall specifically what that disability
was. Perez stated: “I’d be trying to guess if I were to tell you. It’s something with his
maybe kidneys maybe.” Appellant did not complain that he was in pain or suffering
because of the disability. Perez further acknowledged that the interview was not video-
recorded. Perez denied promising appellant anything or telling him that his wife was
being interrogated. He reiterated that appellant never asked for an attorney.
Sergeant Max Cantu testified that he was present during appellant’s initial
interview on August 19, 2011. Cantu stated that, although appellant had already been
read his Miranda rights, Cantu read them to appellant as well. Cantu obtained a second
written statement from appellant. According to Cantu, appellant never requested an
attorney and was not coerced or threatened into making the statement. Cantu stated he
never made any promises to appellant nor did he deprive appellant of necessities.
14
Appellant did not appear to be under the influence of drugs or alcohol. Cantu stated that
he gave appellant the opportunity to review and change the statement, but that appellant
did not request to make any changes. Again, Cantu conceded that appellant had signed
his initials only four times even though the form contains five different Miranda warnings.
Cantu could not recall whether he spoke to attorney Eddie Medrano on August 19,
2011. Defense counsel asked Cantu whether he recalled that Medrano advised him that
he is appellant’s attorney and that he wanted to talk to appellant. Cantu replied: “I do
not, but it wouldn’t be relevant. He can’t invoke the Defendant’s right for him.”
Sergeant Vic De Leon testified that he was the lead investigator on the case. He
took the third written statement from appellant. According to De Leon, appellant never
asked for an attorney or to terminate the interview. De Leon stated that he did not coerce
or threaten appellant into making the statement, nor did he promise anything in exchange
for the statement. Appellant did not appear to be under the influence of drugs or alcohol
during the interview and was not denied any necessities. On cross-examination, De Leon
denied that appellant told him he needed to take certain medications. On re-direct
examination, De Leon stated that, hypothetically, De Leon would have been notified if an
attorney claimed to represent appellant and wanted to speak to appellant. When asked
whether he was so notified, he replied: “I don’t recall that, no.”
Each written statement contains the Miranda warnings and each is preceded by
the following sentence: “And prior to and during the making of this statement, I knowingly,
intelligently and voluntarily waive those rights set forth in this document and have
knowingly, intelligently and voluntarily waived those rights, l do hereby make the following
free and voluntary statement.” Each statement contains appellant’s signature next to the
15
following sentence: “I give this statement of my own free will, not promised anything in
return, and not coerced into giving this statement.”
Defense counsel called attorney Heriberto “Eddie” Medrano to the witness stand.
Medrano testified that he received a phone call from appellant one day in 2011; at the
time, Medrano was representing appellant on a pending state drug case. Medrano
testified:
[Appellant] called me and—and said that he had driven by his house on
Moorefield Road, I believe, and said that—that he saw law enforcement out
there, sheriff’s deputy cars. And he asked me what I should do, what he
should do. So I advised him to go ahead and—I thought it had to do with
an issue concerning his bond on the pending drug case because I’d gotten
him out on a very, very low bond and the State prosecutor had told me that
he thought it was kind of low and was going to try to perhaps consider
getting a higher bond. So I figured they were there to re-arrest him because
he had been indicted or something and the district Judge can always ask
for a higher bond. So I advised him, look, just go to the—go to your—go to
the house, tell them who you are and then call me and tell me what it’s all
about.
....
And [appellant] calls me back and he says that they’re there to arrest him.
And so I said, well, for what? He says I don’t know. And so he says, here,
and I could hear somebody like on the phone close to him, and he says,
here, you can go ahead and talk to him. So I—an officer, I don’t know—I
don’t know who the officer was because obviously I wasn’t seeing him, and
I identified myself and he said who’s this? And I said, this is Eddie Medrano,
I’m [appellant]’s attorney. What’s going on? And then the officer says, well,
we’re here to go ahead and arrest [appellant]. And so I said, well—well,
why? I mean, he’s out on bond. And he basically said, well, I’m just doing
my duty in taking him in. And then I—I had a conversation with the officer,
I said, well, look, I’m his attorney, where are you taking him? Because I—
just so you’ll know, my thought was that perhaps the—the federal authorities
had indicted him federally. And so I’m thinking, well, maybe they’re going
to be taking him to the federal courthouse later on for initial appearance. So
I said, well, where are you taking him? And he says we’re taking him to
Hidalgo County. And so I thought in my mind, well, it's got to be the—the
bond issue that the State wants to go ahead and raise his bond. So I said,
well, okay, fine, you know, go ahead and take him in, but, you know, don’t
interrogate him, don’t question him, I’m his attorney and I’ll try to go ahead
16
and find out who the—who the Judge is that has the case and try to get a
bond.
....
And so then—then he passes [appellant] back to me. I said, look, they’re
going to take you in, don’t resist, don’t answer any questions, I’ll see you
this afternoon. If you’re not out on bond, you don’t call me, that means
you’re still incarcerated and when I come back from San Antonio early in
the afternoon, I’ll see you in the afternoon.
Medrano testified that he came back from San Antonio that afternoon at around 3:30 or
4:30 p.m. and went to the Hidalgo County Jail, but appellant was not there. Medrano then
when to the Hidalgo County Sheriff’s Office. He testified:
I go to the front window there and identify myself, my bar card, my drivers’
license and I said, my name’s Eddie Medrano, I’m an attorney, I’m looking
for [appellant]. And so I need to talk to him. And so I think we waited 40,
45 minutes, finally a gentleman comes out and he identifies himself as
Investigator Cantu. And so I tell him, well, Mr. Cantu, I’m Eddie Medrano,
you know, I’m—I’m here to see [appellant]. And we have a
conversation. . . . I told him, look, I’m his attorney, I have a right to go ahead
and be with him during any interrogation. And he says, well, what are you
representing him on? And I said, well, I’m representing him on this drug
case. Because I’m thinking he’s been re-arrested for this—this drug
offense. And he said, well, we don’t have him here for that. And I said,
well, why is he here? He says, we’re doing a homicide investigation. And
so then I said, well, I’m still his attorney and I will need to go ahead and be
with him. I need to see him. I need to talk to him. And he said, well, I’ve
already told him that you’re here and I’m—and I’m figuring, well, in the 45
minutes that I’ve been waiting, right? And—and he says he doesn’t want to
see you. And that didn’t make any sense to me because obviously I talked
to [appellant] earlier that same morning. So I said you—well, I want to hear
him tell me that. And he says, well, no, because I’ve told—I says, you told
him that I’m here? And he says, yes, sir. And he’s telling you that he doesn’t
want to see me? That’s right. I said, well, I want to hear him tell me that.
Well, that’s not going to happen, or words to that effect.
On cross-examination, Medrano testified that he represented appellant “concerning the
pending drug case and other matters that were pending as well”; however, he conceded
that he had not been paid to represent appellant concerning any homicide investigation.
According to Medrano, appellant’s wife called him later in the day but eventually hired
17
another attorney to represent appellant after Medrano advised her that “I can’t represent
him because I don’t do homicide defense.”
Appellant testified that he called Medrano on August 18, 2011 “to see what was
going on there at the ranch.” At some point, he gave his phone to Cantu and Cantu later
gave the phone back to him. Appellant stated that he told investigators that he had kidney
problems and needed to take medication twice a day, but did not take the medication
during the course of his interrogation. He stated that he was taken to the bathroom once
and did not eat. Regarding the written statements, appellant testified:
When I signed those papers, it’s because Mr. Max Cantu told me that if I—
I didn’t sign those papers, that they were going to arrest my wife and take
my girls away. . . . He kept on ask—telling me, you know, just help yourself
here, you don’t need no attorney. I kept on telling him I needed to speak to
my attorney and he kept on telling me you don’t need an attorney, that I was
not under arrest, for me just to tell him what had happened. . . . And as
soon as I signed these papers, he told me that I was under arrest.
Appellant denied that Cantu ever told him that Medrano was at the sheriff’s office and
wanted to see him. Appellant stated that, because of his kidney condition, he was taken
to the hospital after his arrest and stayed there for three or four days. He conceded on
cross-examination that he had previously been convicted of a felony in federal court. He
also conceded that his signature appeared on the various written statements.
3. Findings and Conclusions
The trial court denied appellant’s motion to suppress and issued, among others,
the following findings of fact:
5. Defendant was advised of his Miranda Rights by Investigator
Herman Perez before being interviewed on August 19, 2011 and
waived these rights.
6. Defendant was subsequently advised of his Miranda Rights and after
waiving these rights was questioned by Investigator Max O. Cantu
on August 20, 1011.
18
7. Defendant was again advised of his Miranda Rights before being
questioned by Investigator Vic De Leon on August 20, 2011 and
waived these rights.
8. Defendant understood his Miranda Rights and acknowledged this by
initialing the Miranda Waiver.
9. Defendant knowingly, intelligently, and voluntarily waived these
rights and agreed to answer the investigators’ questions regarding a
capital murder investigation.
10. Defendant did not withdraw his waiver while interviewed by law
enforcement or cease any of the interviews.
11. Defendant did not invoke his right to counsel during any interview
with law enforcement investigators.
12. Defendant was not deprived of any basic necessities such as food,
bathroom breaks, or cigarettes while interviewed by law
enforcement.
13. Defendant was not under the influence of any narcotics or alcohol at
the time he provided his statements to law enforcement.
14. Defendant provided and signed three (3) separate typed out
statements of accused to law enforcement.
15. Each statement of accused had the required Miranda Rights typed
out on each separate page.
The trial court concluded that appellant’s written statements did not violate articles 38.21
or 38.23 of the Texas Code of Criminal Procedure, the Due Process Clause of the Fifth
and Fourteenth Amendments to the United States Constitution, or the Due Process of
Law provisions of the Texas Constitution. See U.S. CONST. amends. V, XIV; TEX. CONST.
art I, §§ 13, 19; TEX. CODE CRIM. PROC. ANN. art. 38.21, 38.23 (West, Westlaw through
2015 R.S.).
4. Analysis
Appellant argues correctly that, once a defendant unambiguously requests to
speak with his lawyer, police questioning must cease until counsel has been provided or
19
the defendant initiates further communication with the police. See Edwards v. Arizona,
451 U.S. 477, 484–85 (1981). But here, there was conflicting evidence as to whether
appellant ever requested to speak with a lawyer. Although appellant testified that he “kept
on telling [Cantu] that [he] needed to speak to [his] attorney,” each of the police officers
testified that appellant never requested to speak to his attorney. The trial court later
specifically found that appellant “did not invoke his right to counsel during any interview
with law enforcement investigators.” This finding is entitled to “almost total deference”
from this Court because it was based on the credibility and demeanor of the witnesses at
the suppression hearing. See Pecina, 361 S.W.3d at 79.2 Because the finding is
supported by the record, we may not disturb it.
The testimony of attorney Medrano does not alter this conclusion. In Janecka v.
State, the Texas Court of Criminal Appeals noted that, although “the Fifth Amendment
right to counsel is a right that is personal to the accused,” there are “certain
circumstances” in which “an accused’s attorney can speak for the accused in invoking
Fifth Amendment protections.” 739 S.W.2d 813, 828 (Tex. Crim. App. 1987). Specifically,
an attorney can speak for his client in invoking the Fifth Amendment right to
counsel if: (1) the attorney-client relationship exists; (2) the attorney invokes
the Fifth Amendment right to counsel in the presence of the accused or after
conferring with the accused; (3) the accused does nothing to contradict his
attorney; and (4) officers agree not to question the accused in the attorney’s
absence.
2 Appellant further testified at the suppression hearing that he signed the statements only because
Cantu threatened “to arrest [his] wife and take [his] girls away.” However, he does not argue on appeal that
his statements were involuntary because they were obtained via threats and coercion. Even if he did make
that argument, it would not be meritorious because (1) the officers each testified that they did not coerce or
threaten appellant or make any promises to appellant in exchange for the statements, (2) the trial court
expressly found that the statements were voluntarily made, and (3) that finding would be entitled to “almost
total deference” because it was a mixed question of law and fact based on the witnesses’ credibility and
demeanor. See Pecina v. State, 361 S.W.3d 68, 79 (Tex. Crim. App. 2012).
20
Id. Here, the evidence established that Medrano represented appellant on an unrelated
drug case but did not, at the time he attempted to invoke the Fifth Amendment right to
counsel on appellant’s behalf, represent appellant with respect to the capital murder of
Martinez.3 Even if we assume that an “attorney-client relationship exist[ed]” for purposes
of Janecka, there was no evidence establishing that any officer agreed not to question
appellant without Medrano present. See id. Accordingly, the test elucidated in Janecka
is not satisfied and Medrano was not entitled to invoke Fifth Amendment protections on
appellant’s behalf.
The fact that police never told appellant that Medrano was there and wanted to
see him also does not change the result. In Moran v. Burbine, the United States Supreme
Court considered “whether a prearraignment confession preceded by an otherwise valid
waiver must be suppressed either because the police misinformed an inquiring attorney
about their plans concerning the suspect or because they failed to inform the suspect of
the attorney’s efforts to reach him.” 475 U.S. 412, 420 (1986). In an opinion by Justice
O’Connor, a majority of the Court found that the failure of police to advise the defendant
of a telephone call from his attorney had “[no] bearing on the validity” of the defendant’s
Miranda rights waivers. Id. at 423. The Court observed:
Events occurring outside of the presence of the suspect and entirely
unknown to him surely can have no bearing on the capacity to comprehend
and knowingly relinquish a constitutional right. . . . [W]e have never read
the Constitution to require that the police supply a suspect with a flow of
information to help him calibrate his self-interest in deciding whether to
speak or stand by his rights.
....
3 In fact, Medrano later declined to represent appellant on the murder charge, telling appellant’s
wife that “I don’t do homicide defense.”
21
Although highly inappropriate, even deliberate deception of an attorney
could not possibly affect a suspect’s decision to waive his Miranda rights
unless he were at least aware of the incident. Compare Escobedo v. Illinois,
378 U.S. 478, 481 (1964) (excluding confession where police incorrectly
told the suspect that his lawyer “‘didn’t want to see’ him”). Nor was the
failure to inform respondent of the telephone call the kind of “trick[ery]” that
can vitiate the validity of a waiver. Miranda, 384 U.S. at 476. Granting that
the “deliberate or reckless” withholding of information is objectionable as a
matter of ethics, such conduct is only relevant to the constitutional validity
of a waiver if it deprives a defendant of knowledge essential to his ability to
understand the nature of his rights and the consequences of abandoning
them.
Moran, 475 U.S. at 422–24. The Court found that, because the defendant’s “voluntary
decision to speak was made with full awareness and comprehension of all the information
Miranda requires the police to convey,” the waivers were valid. Id. at 424. The Court
declined to “adopt a rule requiring that the police inform a suspect of an attorney’s efforts
to reach him.” Id. at 425; see id. at 427 (“[A] rule requiring the police to inform the suspect
of an attorney’s efforts to contact him would contribute to the protection of the Fifth
Amendment privilege only incidentally, if at all. This minimal benefit, however, would
come at a substantial cost to society’s legitimate and substantial interest in securing
admissions of guilt.”).
We believe that Moran is analogous to the case at bar. As in Moran, there is no
dispute here that appellant was fully advised of his Miranda rights prior to making each of
the statements at issue. Even assuming that Medrano represented appellant with respect
to the Martinez murder investigation, the police were under no legal obligation to inform
appellant that Medrano was there and wanted to speak with him. See id. The undisputed
fact that police did not inform appellant of Medrano’s presence, though arguably
unethical, see id., did not invalidate appellant’s otherwise-effective waiver of his Miranda
rights.
22
For the foregoing reasons, we conclude that the trial court did not err in denying
appellant’s motion to suppress. We overrule appellant’s first issue.
III. CONCLUSION
The trial court’s judgment is affirmed.
DORI CONTRERAS GARZA,
Justice
Do not publish.
TEX. R. APP. P. 47.2(b).
Delivered and filed the
19th day of November, 2015.
23