Juan Manuel Alfaro v. State ( 2015 )

ACCEPTED
13-15-00075-CR
THIRTEENTH COURT OF APPEALS
CORPUS CHRISTI, TEXAS
12/7/2015 3:15:24 PM
Dorian E. Ramirez
CLERK
No. 13-15-00075-CR
FILED IN
13th COURT OF APPEALS
CORPUS CHRISTI/EDINBURG, TEXAS
In the Thirteenth Court of Appeals
12/7/2015 3:15:24 PM
Edinburg, Texas DORIAN E. RAMIREZ
Clerk
JUAN MANUEL ALFARO,
Appellant
V.
STATE OF TEXAS,
Appellee
APPEAL FROM CAUSE NO. CR-3287-14-H
TH
289 District Court, Hidalgo County, TEXAS
HON. Leticia “Letty” Lopez,
Judge Presiding
Appellant’s Brief Submitted in Accordance with Anders
v. California
O. Rene Flores
State Bar No. 24012637
O. Rene Flores, PC
1308 S. 10th Ave.
Edinburg, TX 78539
(956)383-9090
(956)383-9050 (fax)
Counsel for Appellant
NO ORAL ARGUMENT REQUESTED
1
IDENTITY OF PARTIES AND COUNSEL
Appellant Appellate Counsel
JUAN MANUEL ALFARO O. Rene Flores
1308 S. 10th Ave.
Edinburg, Texas 78539
(956) 383-9090
(956) 383-9050
Trial Counsel
Armando Marroquin
Marroquin Law Firm
421 S. 12th Street
McAllen, Texas 78501
(956) 287-7400
Appellee Appellee’s Counsel
STATE OF TEXAS Theodore “Ted” Hake
Assistant DA
Hidalgo County DA
100 N. Closner
Edinburg, Texas 78539
(956) 318-2300
(956) 318-2301
Trial Counsel
Hope Palacios
Assistant DA
Hidalgo County DA
100 N. Closner
Edinburg, Texas 78539
(956) 318-2300
2
TABLE OF CONTENTS
Identity of Parties and Counsel …………………………………………2
Table of Contents…………………………………………………………………………………3
Index of Authorities…………………………………………………………………………4
Anders Statement …………………………………………………………………………………8
Statement of the Case ……………………………………………………………………9
Issues Presented ………………………………………………………………………………10
Statement of Facts …………………………………………………………………………10
Summary of the Argument ……………………………………………………………15
Argument ……………………………………………………………………………………………………16
Possible Issue 1: After review of the Record on
appeal and after reviewing the current state of
the law, the undersigned finds that the Court did
not abuse its discretion when it denied Appellant
Alfaro’s Motion to Suppress Statements.
Possible Issue 2: After review of the Record on
appeal and after reviewing the current state of
the law, the undersigned finds there was no error
in not including a 38.23 charge on admission of
Appellant Alfaro's statement.
Possible Issue 3: After review of the Record on
appeal and after reviewing the current state of
the law, the undersigned finds that Appellant
Alfaro’s finding of guilt was supported by the
evidence.
Prayer for Relief ……………………………………………………………………………57
3
Index of Authorities
Cases
1. Almanza v. State, 686 S.W.2d 157, 171
(Tex.Crim.App.1985)
2. Alvarado v. State, 912 S.W.2d 199, 211
(Tex.Crim.App.1999)
3. Anders v. California, 386 U.S. 738 (1967)
4. Beecher v. Alabama, 389 U.S. 35, 88 S. Ct. 189, 19
L. Ed. 2d 35 (1967).
5. Bell v. State, 582 S.W.2d 800, 812
(Tex.Crim.App.1979);
6. Cain v. State, 18 Tex. 387, 389–90 (1857)
7. Casias v. State, 452 S.W.2d 483, 488
(Tex.Crim.App.1970).
8. Colorado v. Connelly, 479 U.S. 157, 107 S. Ct. 515, 93
L. Ed. 2d 473
9. Culombe v. Connecticut, 367 U.S. 568, 81 S. Ct. 1860,
6 L. Ed. 2d 1037 (1961).
10. Davis v. North Carolina, 384 U.S. 737, 86 S. Ct.
1761, 16 L. Ed. 2d 895 (1966).
11. Delgado v. State, 235 S.W.3d 244, 249
(Tex.Crim.App.2007) (footnote omitted)
12. Foster v. State, 101 S.W.3d 490, 497
(Tex.App.Houston [1st Dist.] 2002, no pet.)
4
13. Greenwald v. Wisconsin, 390 U.S. 519, 88 S. Ct.
1152, 20 L. Ed. 2d 77 (1968).
14. Hamlin v. State, 39 Tex. Crim. 579, 47 S.W. 656
(1898).
15. High v. State, 573 S.W.2d 807, 813 (Tex. Crim. App.
[Panel Op.] 1978),
16. Huizar v. State, 12 S.W.3d 479 (Tex.Crim.App.2000).
17. Madden v. State, 242 S.W.3d 504
(Tex.Crim.App.2007).
18. Mendoza v. State, 88 S.W.3d 236, 239
(Tex.Crim.App.2002).
19. Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602,
16 L. Ed. 2d 694 (1966).
20. Mincey v. Arizona, 437 U.S. 385, 98 S. Ct. 2408, 57
L. Ed. 2d 290 (1978).
21. Nenno v. State, 970 S.W.2d 549, 556
(Tex.Crim.App.1998),
22. Payne v. Arkansas, 356 U.S. 560, 78 S. Ct. 844, 2
L. Ed. 2d 975 (1958).
23. Perry v. State, 158 S.W.3d at 446 (U.S.1986).
24. Posey v. State, 966 S.W.2d 57, 60
(Tex.Crim.App.1998)
25. Reck v. Pate, 367 U.S. 433, 81 S. Ct. 1541, 6
L. Ed. 2d 948 (1961).
5
26. Rice v. Cooper, 148 F.3d 747, 750 (7th Cir.1998).
27. Ritchie v. State, 164 Tex. Crim. 38, 296 S.W.2d 551,
554 (1956).
28. Rocha v. State, 16 S.W.3d 1, 19–20
(Tex.Crim.App.2000)
29. Rogers v. State, 549 S.W.2d 726, 729–30
(Tex.Crim.App.1977)
30. State v. Terrazas, 4 S.W.3d 720, 727
(Tex.Crim.App.1999)
31. Vasquez v. State, 225 S.W.3d 541
(Tex.Crim.App.2007).,
32. Warren v. State, 29 Tex. 369 (1867)
33. Wolfe v. State, 917 S.W.2d 270, 282
(Tex.Crim.App.1996).
Statutes
1. TEX.CODE CRIM. PROC. art. 15.17, O’Connor’s Criminal
Codes Plus, (2015-2016)
2. TEX.CODE CRIM. PROC. art. 36.14, O’Connor’s Criminal
Codes Plus, (2015-2016)
3. TEX.CODE CRIM. PROC. art. 36.19, O’Connor’s Criminal
Codes Plus, (2015-2016)
4. TEX.CODE CRIM. PROC. art. 37.07, O’Connor’s Criminal
Codes Plus, (2015-2016)
5. TEX.CODE CRIM. PROC. art. 38.21, O’Connor’s Criminal
Codes Plus, (2015-2016)
6
6. TEX.CODE CRIM. PROC. Art. 38.22 (2), O’Connor’s
Criminal Codes Plus, (2015-2016)
7. TEX.CODE CRIM. PROC. Art. 38.22 (2)(a), O’Connor’s
Criminal Codes Plus, (2015-2016)
8. TEX.CODE CRIM. PROC. Art. 38.22 (3), O’Connor’s
Criminal Codes Plus, (2015-2016)
9. TEX.CODE CRIM. PROC. Art. 38.22 (3)(a), O’Connor’s
Criminal Codes Plus, (2015-2016)
10. TEX.CODE CRIM. PROC. art. 38.22(6), O’Connor’s
Criminal Codes Plus, (2015-2016)
11. TEX.CODE CRIM. PROC. Art. 38.22 (7), O’Connor’s
Criminal Codes Plus, (2015-2016)
12. TEX.CODE CRIM. PROC. Art. 38.23, O’Connor’s Criminal
Codes Plus, (2015-2016)
13. TEX.CODE CRIM. PROC. Art. 38.23(a), O’Connor’s
Criminal Codes Plus, (2015-2016)
Other
1. George E. Dix, “Voluntariness” and “Intelligence”
of Confessions as “Independent” Texas Law Issues,
20 TEX. TECH L.REV. 1017, 1080, 1091 (1989).
7
Anders Statement
This brief is being submitted in accordance with
Anders v. California, 386 U.S. 738 (1967). I affirm
that I have reviewed the complete Clerk’s Record and
all fifteen (15) volumes of the Reporter’s Record,
which include arraignment, pretrial hearings, jury
selection and the unitary trial proceedings given
Appellant Alfaro’s plea of guilty to the jury. After
having carefully examined this record and researching
the relevant statutes and case law, I have concluded
that this case presents no meritorious grounds of error
upon which an appeal can be predicated. Therefore, I
request the Court’s permission to withdraw as attorney
of record and to allow appellant to file any further
briefs he deems necessary or appropriate.
In accordance with High v. State, 573 S.W.2d 807,
813 (Tex. Crim. App. [Panel Op.] 1978), I further
affirm that, simultaneous with the filing of this
brief, I am serving a copy of the brief and my Motion
to Withdraw on Appellant, accompanied by a letter
8
informing Appellant of his right to review the record
and to file a pro se response.
Statement of the Case
On September 4, 2014, Appellant was charged by
indictment with the offense of Aggravated Robbery.1
Appellant entered a plea of guilty to the allegations
in the indictment on January 14, 2015.2 On January 16,
2015, Appellant was found GUILTY by a jury and the jury
assessed Appellant’s punishment at fifty (50) years
confinement in the Texas Department of Corrections
Institutional Division.3 The trial court certified
Appellant’s right to appeal, and his appeal was
perfected on February 6, 2015.4
1
CR6
2
Defendant is arraigned in front of the jury. RR13@5; Appellant Alfaro
PLEADS “guilty” to the jury. RR13@6; Court admonishes and inquires several
times whether he understands what he’s doing – to which the Appellant Alfaro
advises – Yes. RR13@6-7
3
CR97; RR14@149-152
4
CR100; 105
9
Issues Presented
My review of the record reveals no issues which can
be advanced on appeal in good faith. Any arguable
points that could exist are identified herein below and
discussed with respect to why they are not meritorious
appealable issues.
Statement of Facts
The State of Texas approached this case as “crime
spree.” The evidence adduced at trial after Appellant
Alfaro pleaded guilty to the jury served to support the
plea and further served to support the State’s theory.
At trial, the evidence showed that on August 1,
2014, Hidalgo County Sheriff’s deputies responded to an
assault later classified as an aggravated robbery.5
Upon his arrival, Deputy Juan Garcia made contact with
Ranulfo Dantes Mars who although overwhelmed, bleeding
and in shock was able to describe what had just
happened.6 Mars was able to describe what the
5
RR13@13
6
RR13@15-16; RR15@State’s Exhibit 15 and 16 show the jury that his shirt was
bloody and he had injuries to the side of his head.
10
assailants were wearing; he also described the truck
the assailants were driving. At this time, deputy
Garcia also observed three spent casings found at the
scene where the assault took place. This was
consistent with Mars’ explanation that shots were fired
at a passing vehicle. This information would be
corroborated through another witness later in the
trial.7
While at that scene, Deputy Garcia makes contact
with another individual reporting another incident just
up the road from that location. Apparently, this
second individual was advised to travel to where Deputy
Garcia was making contact with Mars.8
Investigator Ruben Silva testified that after he
took a written statement from Mars, he made contact
with two individuals at the County Sheriff’s substation
in Weslaco, Texas. There he identified Luis Amador and
Appellant Juan Manuel Alfaro as suspects in this case.9
7
RR13@13-22
8
RR13@21
9
RR13@31-34
11
Investigator admitted that Appellant Alfaro appeared
intoxicated but further advised the jury that Appellant
seemed to be in his right frame of mind. He testified
that Appellant understood English and Spanish; he
testified that while Appellant Alfaro smelled of
alcohol, he was not too intoxicated to have understood
his rights. Investigator Silva further advised the
jury that Appellant Alfaro was properly Mirandized and
waived any rights he had to an attorney and/or to
terminate any interview.10
Investigator Adam Palmer was called to testify
about yet another incident on August 1, 2014. He
testified about a “call” to a Gentleman’s Club not far
from the original call. There, the same truck was
described. There again, shots were reported fired.11
Palmer also related to the jury about this case and how
the same description of the assailants and their
vehicle was given. In all, Palmer told the jury about
three different robberies involving the same
10
RR13@34-38; Note that on cross-examination, Silva admitted that Appellant
appeared intoxicated at 3:02am. RR13@39; See also RR13@37, 42
11
RR13@42-45
12
descriptions and shots fired. The responding officers
and investigators noticed a pattern and began to
believe the same suspects were committing all of these
robberies. At that point, Palmer and his Sheriff’s
Department believed they were in fact dealing with a
“spree.”12
Palmer would testify about a couple more incidents
in Alamo, Texas later that night. At some point, an
eye-witness flagged down a Sheriff’s Deputy and was
shown where the shooters had apparently fled to hide.
Deputy Cindy Caceres was able to detain Amador and
Appellant Alfaro. They were taken into custody and
detained at the Hidalgo County Sheriff’s Department
substation in Weslaco, Texas.13
At 6am, Palmer made contact with Appellant Alfaro;
Palmer and Investigator Avila ended up getting a
written statement of accused from Appellant Alfaro.14
Appellant Alfaro and Luis Amador implicated themselves
12
RR13@41-46
13
RR13@52-53
14
RR15@State’s Exhibit 36; RR13@55-57
13
and further led investigators to the mobile home where
they were originally detained.15 Armed with this
information, a warrant was executed and a two weapons
were recovered.16 Along with these weapons were live
rounds of ammunition stamped with the same brand as the
spent casings found at the scene and in the suspect
vehicle which was later processed.17 Palmer also
testified that these weapons matched the descriptions
given at the scene.18
Investigator Alfredo Avila made contact with
Appellant Alfaro just before 6 am and according to him,
Appellant Alfaro had the normal use of his mental and
physical faculties. Avila advised that Appellant
Alfaro was cooperative and agreed to give him a
15
RR13@57, 74; Note that Palmer testified he didn’t know Alfaro was
intoxicated. He observed Appellant Alfaro to be fine and in his right mind
and very cooperative. RR13@74-78
16
RR13@57-63
17
RR13@61-62, 65; RR15@State’s Exhibit 24-28, 6-9
18
RR13@63
14
statement.19 On cross examination, Investigator Avila
advised that Appellant Alfaro admitted everything.20
Summary of the Argument
The undersigned counsel has reviewed the record on
appeal thoroughly is unable to identify any legally
non-frivolous issues. The only areas in which arguable
issues could arise would be: (1) Whether the trial
court erred by denying Appellant’s Motion to Suppress
Statement; (2) Whether there was error in not
including an instruction on the voluntariness of the
statement of accused; and (3) Whether there was
sufficient evidence to support the conviction.
After reviewing the appellate record and the
current state of the law, the undersigned is of the
opinion that the issues identified herein would not be
viable appealable issues.
19
RR15@State’s Exhibit 18 and 36. These Exhibits represent the Miranda Form
signed by Appellant Alfaro and the Statement of Accused signed by Appellant
Alfaro – they were offered and admitted without objection.; RR13@83-88
20
RR13@97-99
15
Argument
Possible Issue 1: After review of the Record on appeal
and after reviewing the current state of the law, the
undersigned finds that the Court did not abuse its
discretion when it denied Appellant Alfaro’s Motion to
Suppress Statements.
Applicable Law
Under Article 38.21, “A statement of an accused may
be used in evidence against him if it appears that the
same was freely and voluntarily made without compulsion
or persuasion.”21 A defendant may claim that his
statement was not freely and voluntarily made and thus
may not be used as evidence against him under several
different theories: (1) Article 38.22, § 6 - general
voluntariness; (2) Miranda v. Arizona22 as expanded in
Article 38.22, §§ 2 and 3 (the Texas confession
statute); or (3) the Due Process Clause.23 It may be
involuntary under one, two, or all three theories.
A. Claims of involuntariness under the Due Process
Clause and Miranda
21
TEX.CODE CRIM. PROC. art. 38.21, O’Connor’s Criminal Codes Plus, (2015-
2016)
22
384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966)
23
Wolfe v. State, 917 S.W.2d 270, 282 (Tex.Crim.App.1996).
16
A confession may be involuntary under the Due Process
Clause when there is police overreaching.24 Even if a
confession is not the product of a meaningful choice,
it is nonetheless “voluntary” within the meaning of the
Due Process Clause absent some coercive police
activity. The Supreme Court made this clear in Colorado
v. Connelly,25 when it held that if there is no police
coercion or overreaching, there is no due-process
violation — even if a suspect is suffering from chronic
schizophrenia and is in a psychotic state following the
“voice of God” at the time he confesses.26 Absent police
misconduct causally related to the confession, there is
24
See Perry v. State, 158 S.W.3d at 446 (defendant not entitled to any jury
instruction under art. 38.23(a) as evidence of his intoxication and injury
“does not raise any constitutional voluntariness issues because this evidence
does not involve any police coercion or other official over-reaching.”);
Alvarado v. State, 912 S.W.2d 199, 211 (Tex.Crim.App.1999) (statement
involuntary under federal due process “only if there was official, coercive
conduct of such a nature that any statement obtained thereby was unlikely to
have been the product of an essentially free and unconstrained choice by its
maker”).
25
479 U.S. 157, 107 S. Ct. 515, 93 L. Ed. 2d 473 (U.S.1986).
26
Id. at 164, 107 S. Ct. 515. In Connelly, the defendant approached a Denver
police officer and said that “he had come all the way from Boston to confess
to the murder of Mary Ann Junta, a young girl whom he had killed in Denver
sometime during November 1982.” Id. at 160, 107 S. Ct. 515. Unbeknownst to the
police (who scrupulously followed the dictates of Miranda), the defendant was
apparently obeying the “voice of God” which had instructed him “to withdraw
money from the bank, to buy an airplane ticket, and to fly from Boston to
Denver.” Id. at 161, 107 S. Ct. 515. Even though the evidence showed that the
defendant was suffering from “command hallucinations that interfered with his
volitional abilities; that is, his ability to make free and rational choices”
and “he wasn't capable of making a ‘free decision’ to waive his Miranda
rights,” his confession was not involuntary under the Fifth Amendment. Id. at
161–64, 169–71, 107 S. Ct. 515.
17
“simply no basis for concluding that any state actor
has deprived a criminal defendant of due process of
law.”27 The Due Process Clause is aimed at protecting
suspects from police overreaching, not at protecting
people from themselves or other private actors.
The same is true for Miranda rights and waivers that
apply to custodial-interrogation statements. As the
Supreme Court explained in Connelly: “Miranda protects
defendants against government coercion leading them to
surrender rights protected by the Fifth Amendment; it
goes no further than that.”28 Thus, the defendant's
waiver of his Miranda rights, made under the perception
of coercion flowing from the “voice of God, ... is a
matter to which the United States Constitution does not
speak.”29
As Judge Posner has explained:
The significance of the principle of Connelly, the
principle that the Constitution doesn't protect the
27
Id. at 164, 107 S. Ct. 515.
28
Id. at 170, 107 S. Ct. 515.
29
Id. at 170–71, 107 S. Ct. 515.
18
suspect against himself, is that if he understands
the Miranda warnings yet is moved by a crazy
impulse to blurt out a confession, the confession
is admissible because it is not a product of
coercion. The police have given him his Miranda
warnings in an intelligible form; it is not their
fault that he is impulsive.30
Statements that have been found to be involuntary
under Miranda or the Due Process Clause were collected
in Connelly;31 they involve the crucial element of
police overreaching and involve fact scenarios such as
the following: (1) the suspect was subjected to a four-
hour interrogation while incapacitated and sedated in
an intensive-care unit;32 (2) the suspect, while on
medication, was interrogated for over eighteen hours
without food, medication, or sleep;33 (3) the police
officers held a gun to the head of the wounded suspect
30
Rice v. Cooper, 148 F.3d 747, 750 (7th Cir.1998).
31
479 U.S. at 164 n. 1, 107 S. Ct. 515.
32
Mincey v. Arizona, 437 U.S. 385, 98 S. Ct. 2408, 57 L. Ed. 2d 290 (1978).
33
Greenwald v. Wisconsin, 390 U.S. 519, 88 S. Ct. 1152, 20 L. Ed. 2d 77 (1968).
19
to extract a confession;34 (4) the police interrogated
the suspect intermittently for sixteen days using
coercive tactics while he was held incommunicado in a
closed cell without windows and was given limited
food;35 (5) the suspect was held for four days with
inadequate food and medical attention until he
confessed;36 (6) the suspect was subjected to five days
of repeated questioning during which police employed
coercive tactics;37 (7) the suspect was held
incommunicado for three days with little food, and the
confession was obtained when officers informed him that
their chief was preparing to admit a lynch mob into the
jail.38
As is evident from these fact scenarios, due-process
and Miranda claims of involuntariness generally do not
require “sweeping inquiries into the state of mind of a
criminal defendant who has confessed.”39 They involve an
34
Beecher v. Alabama, 389 U.S. 35, 88 S. Ct. 189, 19 L. Ed. 2d 35 (1967).
35
Davis v. North Carolina, 384 U.S. 737, 86 S. Ct. 1761, 16 L. Ed. 2d 895
(1966).
36
Reck v. Pate, 367 U.S. 433, 81 S. Ct. 1541, 6 L. Ed. 2d 948 (1961).
37
Culombe v. Connecticut, 367 U.S. 568, 81 S. Ct. 1860, 6 L. Ed. 2d 1037 (1961).
38
Payne v. Arkansas, 356 U.S. 560, 78 S. Ct. 844, 2 L. Ed. 2d 975 (1958).
39
Connelly, 479 U.S. at 167, 107 S. Ct. 515.
20
objective assessment of police behavior. The
Constitution leaves voluntariness claims based on the
defendant's state of mind “to be resolved by state laws
governing the admission of evidence.”40 In Texas, that
state law is Article 38.22, the Texas Confession
Statute.
B. Claims of involuntariness under the Texas
Confession Statute
Article 38.22 of the Code of Criminal Procedure sets
out rules governing the admissibility of an accused's
written and oral statements that are the product of
custodial interrogation. Under our precedents, however,
Section 6 of Article 38.22 applies to both an accused's
custodial and non-custodial statements because it
provides that only “voluntary” statements may be
admitted.41 Sections 2 and 3 apply to an accused's
40
Id.
41
State v. Terrazas, 4 S.W.3d 720, 727 (Tex.Crim.App.1999) (“Article 38.22,
Section 6, literally applies to ‘all cases where a question is raised as to
the voluntariness of a statement of an accused.’”). In Terrazas, this court
explicitly overruled Nenno v. State, 970 S.W.2d 549, 556 (Tex.Crim.App.1998),
to the extent that it held that Article 38.22, § 6 applied only to custodial
statements. Id. However, the Court concluded in Terrazas that the trial court
erred, as a matter of law, in ruling that the defendant's statement to a
Department of Human Services investigator could be considered “involuntary.”
Id. at 726 (the investigator “telling [defendant] in a noncustodial setting
‘what had to be’ in her statement is not the type of practice that has been
held to be inherently coercive as to make a statement involuntary”).
21
custodial-interrogation statements and provide that
only “warned and waived” statements may be admitted.
That is, an accused's custodial-interrogation statement
is not admissible unless, prior to making the
statement, he received the warnings provided in Article
15.17 or Article 38.22, § 2(a) or § 3(a) (which
incorporate the requirements of Miranda), and he
knowingly, intelligently, and voluntarily waived those
rights.
Claims of involuntariness under Article 38.22 can be,
but need not be, predicated on police overreaching, and
they could involve the “sweeping inquiries into the
state of mind of a criminal defendant who has
confessed” found in Connelly that are not of themselves
relevant to due process claims.42 Article 38.22 is aimed
at protecting suspects from police overreaching. But
Section 6 of that article may also be construed as
protecting people from themselves because the focus is
upon whether the defendant voluntarily made the
42
Connelly, 479 U.S. at 166–67, 107 S. Ct. 515.
22
statement. Does it appear — as Article 38.21 requires —
that the statement was freely and voluntarily made
without compulsion or persuasion?43 Or, in the case of a
custodial-interrogation statement, did the suspect
“knowingly, intelligently, and voluntarily” waive the
rights set out in Article 38.22 § 2(a) or § (3)(a)?
These inquiries do not turn solely on police
overreaching. The behavior of the police may or may not
be a factor. A confession given under the duress of
hallucinations, illness, medications,44 or even
intoxication, for example, could be involuntary under
Article 38.21 and the Texas confession statute.45 The
defendant in Connelly did not have a valid federal
constitutional involuntariness claim, but, had he
confessed in Texas, he might have had a viable claim
43
TEX.CODE CRIM. PROC. art. 38.21, O’Connor’s Criminal Codes Plus, (2015-
2016) (“A statement of an accused may be used in evidence against him if it
appears that the same was freely and voluntarily made without compulsion or
persuasion, under the rules hereafter prescribed.”).
44
See, e.g., Rocha v. State, 16 S.W.3d 1, 19–20 (Tex.Crim.App.2000) (trial
court's general jury instruction under articles 38.21 and 38.22 concerning
voluntariness of statement sufficed for jury to consider any evidence of his
illness and medication; no error in denying instruction that specifically
mentioned illness and medication as that would be a comment on the weight of
the evidence).
45
This has long been the case in Texas. See Cain v. State, 18 Tex. 387, 389–
90 (1857) (“Before confessions can be received in evidence in a criminal
case, it must be shown that they were voluntary. They must not have been
obtained by the influence of hope or fear, applied by a third person to the
prisoner's mind.”).
23
under Articles 38.21 and 38.22. As Professor Dix has
noted, “evidence of a defendant's psychological
abnormality” (such as Connelly's evidence of
hallucinations and following God's command) “has its
full logical relevance” under Texas law.46
Under Articles 38.21 and 38.22 and their
predecessors, fact scenarios that can raise a state-law
claim of involuntariness (even though they do not raise
a federal constitutional claim) have in the past
included the following: (1) the suspect was ill and on
medication and that fact may have rendered his
confession involuntary;47 (2) the suspect was mentally
retarded and may not have “knowingly, intelligently and
voluntarily” waived his rights;48 (3) the suspect
“lacked the mental capacity to understand his rights”;49
(4) the suspect was intoxicated, and he “did not know
46
George E. Dix, “Voluntariness” and “Intelligence” of Confessions as
“Independent” Texas Law Issues, 20 TEX. TECH L.REV. 1017, 1080, 1091 (1989).
47
Rocha v. State, 16 S.W.3d 1, 20 (Tex.Crim.App.2000).
48
Bell v. State, 582 S.W.2d 800, 812 (Tex.Crim.App.1979); Casias v. State,
452 S.W.2d 483, 488 (Tex.Crim.App.1970).
49
Rogers v. State, 549 S.W.2d 726, 729–30 (Tex.Crim.App.1977) (finding
reversible error in trial court's refusal to give jury general instruction on
voluntariness of statement when evidence raised an issue that defendant
lacked the mental capacity to understand and waive his rights before giving
his statement).
24
what he was signing and thought it was an accident
report”;50 (5) the suspect was confronted by the
brother-in-law of his murder victim and beaten;51 (6)
the suspect was returned to the store he broke into
“for questioning by several persons armed ‘with six-
shooters.’”52
C. Jury Submission of Voluntariness Instructions
Under Texas statutory law, there are three types of
instructions that relate to the taking of confessions:
(1) a “general” Article 38.22, § 6 voluntariness
instruction; (2) a “general” Article 38.22, § 7
warnings instruction (involving warnings given under §
50
Ritchie v. State, 164 Tex. Crim. 38, 296 S.W.2d 551, 554 (1956). In Ritchie,
the evidence was undisputed that the defendant was intoxicated, but the trial
judge found that he was not so intoxicated that he could not understand what
he was doing. Id. Therefore, the trial judge “instructed the jury not to
consider the [statement] unless they believed beyond a reasonable doubt that,
prior to making the statement, the appellant was duly warned, and that
thereafter he voluntarily and freely made the same and understood and signed
it.” This Court held that the trial court did not err in admitting the
evidence and instructing the jury as he did. Id.; see also Foster v. State,
101 S.W.3d 490, 497 (Tex.App.Houston [1st Dist.] 2002, no pet.) (noting that
“[l]ack of sleep for as long as 16 hours does not, in and of itself, render a
confession involuntary,” and that “a person's illiteracy alone will not
necessarily render his statement inadmissible.”).
51
Hamlin v. State, 39 Tex. Crim. 579, 47 S.W. 656 (1898). As Professor Dix
points out, in these early decisions, “It was simply beyond question that
private coercion rendered a confession involuntary and that even private
detention invoked the predecessor to article 38.22.” Dix, 20 TEX. TECH L.REV.
at 1083. After 1977, however, the provisions of Article 38.22 (except for
Sections 6 and 7) apply only to custodial interrogations by law enforcement
officials. See 41 DIX & DAWSON, supra note 17, § 13.31 at 33–35.
52
Warren v. State, 29 Tex. 369 (1867); See also Dix, 20 TEX. TECH L.REV. at
1084.
25
2 and § 3); and (3) a “specific” Article 38.23(a)
exclusionary-rule instruction. The Section 6 “general”
instruction asks the jury: “Do you believe, beyond a
reasonable doubt, that the defendant's statement was
voluntarily made? If it was not, do not consider the
defendant's confession.” The Section 7 instruction sets
out the requirements of 38.22, § 2 or § 3 and asks the
jury to decide whether all of those requirements were
met. The Article 38.23(a) “specific” instruction is
fact-based: For example, “Do you believe that the
Officer who took the statement held a gun to the
defendant's head to extract his statement? If so, do
not consider the defendant's confession.”
In Vasquez v. State,53 confusion exists about which,
if any, jury instruction is appropriate because our
case law “does not always distinguish, and sometimes
blurs, the requirements for getting an instruction
53
225 S.W.3d 541 (Tex.Crim.App.2007).
26
under article 38.22 and for getting an instruction
under the exclusionary rule of article 38.23.”54
In an attempt to clarify the distinction: Due process
and Miranda claims may warrant both “general” and
“specific” voluntariness instructions; Texas statutory
claims warrant only a “general” voluntariness
instruction. It is the defendant's responsibility to
delineate which type of “involuntariness” he is
claiming—a general lack of voluntariness or a specific
police-coerced lack of voluntariness—because the jury
instruction is very different depending upon the type
of claim.55
Obviously, the evidence must raise a “voluntariness”
issue, and the defendant should request a jury
instruction that relates to his theory of
involuntariness. But if the defendant never presents a
proposed jury instruction (or fails to object to the
54
Id. at 544.
55
Note again, that Appellant Alfaro lodged NO OBJECTION at the time of trial
when his statement of accused was offered.
27
lack of one), any potential error in the charge is
reviewed only for “egregious harm” under Almanza.56
1. Article 38.22, § 6 Instructions
Article 38.22, § 6 is a very detailed section that is
essentially independent of the other sections contained
within Article 38.22.57 Section 6 provides:
In all cases where a question is raised as to the
voluntariness of a statement of an accused, the court
must make an independent finding in the absence of
the jury as to whether the statement was made under
voluntary conditions. If the statement has been found
to have been voluntarily made and held admissible as
a matter of law and fact by the court in a hearing in
the absence of the jury, the court must enter an
order stating its conclusion as to whether or not the
statement was voluntarily made, along with the
specific finding of facts upon which the conclusion
was based, which order shall be filed among the
56
See Madden v. State, 242 S.W.3d 504, 513 (Tex.Crim.App.2007).
57
See State v. Terrazas, 4 S.W.3d 720, 727 (Tex.Crim.App.1999) (deciding that
Article 38.22, § 5's provision exempting non-custodial statements from the
coverage of Article 38.22 did not apply to § 6).
28
papers of the cause. Such order shall not be
exhibited to the jury nor the finding thereof made
known to the jury in any manner. Upon the finding by
the judge as a matter of law and fact that the
statement was voluntarily made, evidence pertaining
to such matter may be submitted to the jury and it
shall be instructed that unless the jury believes
beyond a reasonable doubt that the statement was
voluntarily made, the jury shall not consider such
statement for any purpose nor any evidence obtained
as a result thereof. In any case where a motion to
suppress the statement has been filed and evidence
has been submitted to the court on this issue, the
court within its discretion may reconsider such
evidence in his finding that the statement was
voluntarily made and the same evidence submitted to
the court at the hearing on the motion to suppress
shall be made a part of the record the same as if it
were being presented at the time of trial. However,
the state or the defendant shall be entitled to
29
present any new evidence on the issue of the
voluntariness of the statement prior to the court's
final ruling and order stating its findings.58
The language “where a question is raised” contrasts
with the language found in Article 38.22, § 7 and
Article 38.23 which speaks of the evidence raising an
issue.59 Because raising a “question” is what triggers
the trial court's duty under Section 6 to conduct a
hearing outside the presence of the jury, the only
reasonable reading of this language is that a “question
is raised” when the trial judge is notified by a party
or raises on his own an issue about the voluntariness
of the confession. This is the sequence of events that
seems to be contemplated by Section 6: (1) a party
notifies the trial judge that there is an issue about
the voluntariness of the confession (or the trial judge
raises the issue on his own); (2) the trial judge holds
a hearing outside the presence of the jury; (3) the
58
TEX.CODE CRIM. PROC. art. 38.22, § 6
59
See TEX.CODE CRIM. PROC. arts. 38.22, § 7 (“When the issue is raised by the
evidence ...”) and 38.23(a) (“where the legal evidence raises an issue
hereunder ...”).
30
trial judge decides whether the confession was
voluntary;60 (4) if the trial judge decides that the
confession was voluntary, it will be admitted, and a
party may offer evidence before the jury suggesting
that the confession was not in fact voluntary; (5) if
such evidence is offered before the jury, the trial
judge shall give the jury a voluntariness instruction.
It is only after the trial judge is notified of the
voluntariness issue (or raises it on his own) that a
chain of other requirements comes into play,
culminating in the defendant's right to a jury
instruction.
And Section 6 expressly dictates the content of that
instruction to be as follows: “unless the jury believes
beyond a reasonable doubt that the statement was
voluntarily made, the jury shall not consider such
statement for any purpose nor any evidence obtained as
a result thereof.” Because Section 6 contains its own
60
The trial judge must also make written findings of fact and conclusions of
law in support of his ruling. TEX.CODE CRIM. PROC. art. 38.22, § 6. The need
for written findings should alert the parties and trial judge to the need for
a general voluntariness jury instruction as well.
31
jury-instruction provision, it is not governed by the
jury-instruction provision found in Section 7.61 The
obvious purpose of Section 7 is to authorize and
require jury instructions regarding the warnings and
safeguards for written and oral statements outlined in
Article 38.22, § 2 & § 3 (warnings on the right to
remain silent, right to counsel, etc).
Consequently, a Section 6 instruction becomes “law
applicable to the case” under Posey v. State62 only if
the parties actually litigate a Section 6 voluntariness
issue before the trial judge. If such litigation occurs
(on the admissibility of evidence for example), a jury
instruction need not be specifically requested to pass
the Posey gateway, although a request would still be
necessary to obtain the most beneficial harm analysis
under Almanza v. State.63
61
See Terrazas, supra (§ 5 not applicable to § 6, given the specific
provisions found in § 6).
62
966 S.W.2d 57, 60 (Tex.Crim.App.1998) (a defensive issue is not “law
applicable to the case” unless the defendant timely requests the issue or
objects to its omission from the jury charge).
63
686 S.W.2d 157, 171 (Tex.Crim.App.1985) (“some harm” versus “egregious
harm”).
32
An interpretation of Section 6 that requires some
sort of litigation before it becomes law applicable to
the case accords not only with the statutory language
but also with common sense. The broad range of
voluntariness issues covered by Section 6 could easily
be implicated by evidence that would also be relevant
for other purposes, and Section 6 does not even require
the existence of a factual dispute that might at least
obliquely alert the trial judge to the need for an
instruction. The Section 6 requirement that
voluntariness be litigated in some manner before a jury
instruction becomes necessary ensures that the trial
judge is on notice that the instruction is required.64
For example, the evidence may be undisputed that the
defendant did not sleep for 24 hours, or has a low
I.Q., or was “high” on drugs at the time he gave his
statement. If a reasonable jury could find that the
facts, disputed or undisputed, rendered him unable to
64
Vasquez v. State, 225 S.W.3d 541, 545 (Tex.Crim.App.2007) (noting that,
although a defendant may be entitled to an Article 38.22 jury instruction
even when the evidence is undisputed, “[s]ome evidence must have been
presented to the jury that the defendant's confession was not given
voluntarily.”).
33
make a voluntary statement, he is entitled to a general
voluntariness instruction when he has raised a question
of the voluntariness of his statement.
2. Article 38.22, § 7 (Statutory Warnings)
Instructions
If the defendant made his statement as the result of
custodial interrogation, he is also entitled—when the
issue is raised by the evidence—to have the jury decide
whether he was adequately warned of his rights and
knowingly and intelligently waived these rights.
Section 7 of Article 38.22 states:
When the issue is raised by the evidence, the trial
judge shall appropriately instruct the jury,
generally, on the law pertaining to such statement.65
The phrase “the issue” refers to compliance with the
statutory warnings set out in both Articles 15.17
(Duties of Arresting Officer and Magistrate) and 38.22,
§§ 2 & 3, and the voluntariness of the defendant's
waiver of the rights. For it to be “raised by the
65
TEX.CODE CRIM. PROC. art. 38.22, § 7.
34
evidence” there must be a genuine factual dispute, just
as is true under Article 38.23 issues. The same
procedures—including a hearing outside the presence of
the jury and the entry of written findings—that apply
to a general voluntariness challenge under Section 6,
also apply to a challenge that is made to the
sufficiency of warnings and voluntary waiver of the
rights communicated by those warnings. As with Section
6, the trial judge's Section 7 jury instructions are
“general” ones that set out the pertinent law and legal
requirements of Sections 2 and 3 (or, in an appropriate
case, those of Article 15.17).66
But suppose there is some evidence that the police
held a gun to the head of the defendant—who,
unbeknownst to the police, had not slept for twenty-
four hours—to extract the confession. In that case, the
defendant may also be entitled to a fact-specific,
exclusionary-rule instruction, in addition to the two
general voluntariness instructions.
66
See, e.g., Mendoza v. State, 88 S.W.3d at 238 n. 1 (Tex.Crim.App.2002)
(quoting a portion of an Article 38.22, § 7 jury instruction).
35
3. Article 38.23 (Exclusionary Rule) Instructions
Article 38.23(a) states that
(a) No evidence obtained by an officer or other person
in violation of any provisions of the Constitution or
laws of the State of Texas, or of the Constitution or
laws of the United States of America, shall be admitted
in evidence against the accused on the trial of any
criminal case.
In any case where the legal evidence raises an
issue hereunder, the jury shall be instructed that if
it believes, or has a reasonable doubt, that the
evidence was obtained in violation of the provisions of
this Article, then and in such event, the jury shall
disregard any such evidence so obtained.67
The wording is absolute (“the jury shall be
instructed”), just as it is in Article 38.22, but the
triggering mechanism is more complex.68 As we recently
held in Madden v. State,69 the second sentence of
67
TEX.CODE CRIM. PROC. art. 38.23.
68
See Murphy v. State, 640 S.W.2d 297, 299 (Tex.Crim.App.1982).
69
242 S.W.3d 504 (Tex.Crim.App.2007).
36
Article 38.23 requires a jury instruction only if there
is a genuine dispute about a material fact.70 A
defendant must establish three foundation requirements
to trigger an Article 38.23 instruction: (1) the
evidence heard by the jury must raise an issue of fact;
(2) the evidence on that fact must be affirmatively
contested; and (3) the contested factual issue must be
material to the lawfulness of the challenged conduct in
obtaining the statement claimed to be involuntary.71 The
defendant must offer evidence that, if credited, would
create a reasonable doubt as to a specific factual
matter essential to the voluntariness of the
statement.72 This factual dispute can be raised only by
affirmative evidence, not by mere cross-examination
questions or argument.73
For example, the officer in our hypothetical may
deny, on cross-examination, that he held a gun to the
defendant's head to extract the confession. The
70
Id. at 510; See also Holmes v. State, 248 S.W.3d 194, 199
(Tex.Crim.App.2008); Pierce v. State, 32 S.W.3d 247, 251 (Tex.Crim.App.2000).
71
242 S.W.3d at 510.
72
Id. See also 40 GEORGE E. DIX & ROBERT O. DAWSON, TEXAS PRACTICE: CRIMINAL
PRACTICE AND PROCEDURE, § 4.194, at 282 (2d. ed.2001).
73
Madden, 242 S.W.3d at 513 nn. 22–23.
37
implication by counsel, that the officer did perform
that act, does not, by itself, raise a disputed fact
issue. But if the defendant (or some other witness)
testifies that the officer held a gun to his head, then
a disputed fact issue exists. And the jury must resolve
that disputed fact issue.
If the jury finds that the officer did hold a gun
to the defendant's head, the statement is involuntary
as a matter of federal constitutional law. If the jury
finds the officer did not do so, the statement is not
constitutionally involuntary. Of course, if there is no
disputed factual issue—if there is a video definitively
showing that the officer did or did not hold a gun to
the defendant's head—the legality of the conduct is
determined by the trial judge alone, as a question of
law. The legal question would never go to the jury.
Normally, “specific” exclusionary-rule instructions
concerning the making of a confession are warranted
only where an officer uses inherently coercive
38
practices like those set out in Connelly.74 In Texas, if
there is a disputed fact issue about whether this type
of coercive practice was employed—by either an officer
or a private citizen75—to wring a confession out of a
suspect against his will, a specific exclusionary-rule
instruction under Article 38.23 is appropriate.
4. Error in the Failure to Give Appropriate
Voluntariness Instructions
The question then becomes: When does a trial judge
err in failing to give an Article 38.22 or 38.23 jury
instruction? Today’s cases might appear to be in
conflict on whether there can be any error whatsoever—
at least in the Article 38.23 context—absent a proper
request by the defendant. In Mendoza, the Court of
Criminal Appeals stated, “Generally, when evidence from
any source raises a defensive issue and the defendant
properly requests a jury charge on that issue, the
74
Connelly, 479 U.S. at 164 & n. 1, 107 S. Ct. 515; see also State v.
Terrazas, 4 S.W.3d 720, 727 (Tex.Crim.App.1999) (citing Note: Evidence–
Criminal Law–Constitutional Law–Due Process–Confessions–Judge and Jury–
Determination of Preliminary Fact of Voluntariness of Confession, 3 BAYLOR
L.REV. 561, 563–65 (1951) (inherently coercive practices include: subjection
to persistent and protracted questioning, threats of mob violence, unlawful
detention incommunicado without advice of counsel or friends, and taking at
night to lonely and isolated places for questioning)).
75
See Miles v. State, 241 S.W.3d 28, 39 (Tex.Crim.App.2007).
39
trial court must submit the issue to the jury.”76 But
that general statement does not imply the converse—that
the trial court need never submit a jury instruction on
a particular defensive issue unless the defendant
properly requests one. There is nothing in that
sentence or in the rest of the Mendoza opinion that
states or holds that the trial judge shall instruct the
jury to disregard illegally obtained evidence only if
the defendant requests a jury charge on that issue.
Under Posey v. State,77 a trial court has no duty to
instruct the jury on unrequested defensive issues-such
as mistake of fact.78 A defensive issue is not “law
applicable to the case” for purposes of Article 36
unless the defendant timely requests the issue or
objects to the omission of the issue in the jury
charge. Any other holding would render Article 36.14—
which also requires a party to make specific objections
to the charge—meaningless, and “might encourage a
defendant to retry the case on appeal under a new
76
Mendoza v. State, 88 S.W.3d 236, 239 (Tex.Crim.App.2002).
77
966 S.W.2d 57 (Tex.Crim.App.1998).
78
Id. at 60.
40
defensive theory effectively giving him two bites at
the apple.”79
The principle in Posey is that no rule or statute
requires the trial judge to give instructions on
traditional defenses and defensive theories absent a
defendant's request. As stated in Delgado: “The trial
judge has an absolute sua sponte duty to prepare a jury
charge that accurately sets out the law applicable to
the specific offense charged. But it does not
inevitably follow that he has a similar sua sponte duty
to instruct the jury on all potential defensive issues,
lesser-included offenses, or evidentiary issues. These
are issues that frequently depend upon trial strategy
and tactics.”80 These are also issues on which
instructions are not mandated by any statute.81 Thus,
79
966 S.W.2d at 62–63.
80
Delgado v. State, 235 S.W.3d 244, 249 (Tex.Crim.App.2007) (footnote
omitted).
81
For example, TEX.R. EVID. 105(a) explicitly recognizes that the advocates
bear full responsibility for requesting appropriate limiting instructions
when they are entitled to them. The rule states:
(a) Limiting Instruction.—When evidence which is admissible as to one party
or for one purpose but not admissible as to another party or for another
purpose is admitted, the court, upon request, shall restrict the evidence to
its proper scope and instruct the jury accordingly; but, in the absence of
such request the court's action in admitting such evidence without limitation
shall not be a ground for complaint on appeal.
41
under Posey, it is only when a “requirement of the
various statutory provisions referenced in Article
36.19 ‘has been disregarded,’” that the trial court
errs in omitting instructions relative to that
statute.82
But where a rule or statute requires an instruction
under the particular circumstances, that instruction is
“the law applicable to the case.” Such statutes and
rules set out an implicit “If-then” proposition: If the
evidence raises an issue of voluntariness, accomplice
witness, confidential informant, etc., then the trial
court shall instruct the jury that whatever the statute
or rule requires. In Huizar v. State,83 for example, it
was held that Article 37.07 is “the law applicable” to
all non-capital punishment proceedings. Thus, the trial
judge must instruct the jury at the punishment phase
concerning that law, including the fact that the State
TEX.R. EVID. 105(a) (emphasis added). Trial judges should be wary of giving a
limiting instruction under Rule 105(a) without a request because a party
might well intentionally forego a limiting instruction as part of its
deliberate strategy “to minimize the jury's recollection of the unfavorable
evidence.” United States v. Johnson, 46 F.3d 1166, 1171 (D.C.Cir.1995).
82
Posey, 966 S.W.2d at 60 & n. 5
83
12 S.W.3d 479 (Tex.Crim.App.2000).
42
must prove any extraneous offenses beyond a reasonable
doubt.84 Posey was distinguished there as it was
explained the difference between instructing the jury
on “defensive” issues and instructing them on the law
that is applicable to all cases.
Articles 38.21–38.23 are legislatively mandated
procedures governing the admission and consideration of
a defendant's statements. Article 38.21 explicitly
states that voluntary statements may be used in
evidence “under the rules hereafter prescribed”—that
is, Article 38.22 and Article 38.23.
Article 38.22, § 6 is “the law applicable” to any
case in which a “question” is raised and litigated as
to the “general” voluntariness of a statement of an
accused. As noted above, under that statute, the trial
judge must then (1) make an independent determination
that the statement was made under voluntary conditions;
and then (2) instruct the jurors that they shall not
consider the statement for any purpose unless they
84
Id. at 484.
43
believe, beyond a reasonable doubt, that the statement
was made voluntarily.
Article 38.23 is “the law applicable” to any case
in which a specific, disputed issue of fact is raised
concerning the constitutional voluntariness of the
making of the defendant's statement. These are
statutorily mandated instructions and the trial judge
must include them in the jury instructions when the
voluntariness of a defendant's statement is at issue.
Law Applied to the facts in the instant case
In the instant case, there was evidence that in
fact Appellant Alfaro gave a statement of accused.85
Note that State’s witness, Investigator Ruben Silva
testified that after making initial contact with the
defendant, his first impression was that he was
uncooperative.86 This witness would go on to testify
that he also believed Appellant Alfaro was under the
influence of some kind of alcohol or drug at that
85
RR14@ State’s Exhibit 36
86
RR11@11
44
time.87 Even so, it seemed to Investigator Silva that
Appellant Alfaro understood what he was saying to him.88
“He appeared to have full use of his mental and
physical faculties.”89
Investigator Silva advised Appellant Alfaro of his
rights and he understood them as indicated by his
initials and his signature.90 However much Appellant
Alfaro was uncooperative, he persisted that he didn’t
know anything91 yet he never exercised his right to an
attorney or to remain silent; he simply continued to
say he knew nothing.92 Investigator Silva clarified on
cross examination and on re-direct examination that the
only signs of intoxication he saw were that Appellant
Alfaro smelled of alcohol and he was uncooperative.93
When pushed for clarity by the Court,94 Investigator
87
RR11@12
88
They spoke in English and Spanish and Silva testified it was his
impression Appellant Alfaro understood him in both languages. RR11@13-14;
When asked which language Appellant Alfaro preferred to be Mirandized in and
Appellant chose Spanish. RR11@14; See also Miranda Warnings (in Spanish)
RR11@15, 17-18
89
RR11@12-13
90
RR11@15-16, 17-18
91
RR11@17
92
RR11@17
93
RR11@27
94
Note that the Court’s examination of the witness drew no objection from the
defense.
45
Silva admitted the only “sign” of intoxication was that
defendant smelled of alcohol.95 Silva would further
testify that Defendant did not have slurred speech;96
Appellant Alfaro had no problems maintain his
composure; he had no problems maintaining his balance;
he was not “falling over;” he knew where he was, who
Silva was and who he was; he was lucid and in his right
mind; he had no problems holding and using the pen.97
Next, the testimony at the suppression hearing
shows that Investigator Adam Palmer arrived at 6 am;98
when he made contact with Appellant Alfaro, he did not
appear to be intoxicated although he’d learned
Appellant Alfaro was slightly intoxicated a few hours
earlier. Approximately three hours had passed from the
time Alfaro was Mirandized and the time that this
witness made contact. Palmer testified: to him, Alfaro
appeared to have the normal use of his mental and
95
RR11@27
96
RR11@28
97
RR11@29
98
The testimony shows that Palmer got to the station at 4 am but I didn’t
not start talking to Appellant Alfaro until 6 am. When he did see him and
talk to him, he appeared to be in a normal mental state. RR11@39
46
physical faculties;99 Appellant Alfaro understood
English; he is a high school graduate;100 Appellant
Alfaro spoke plainly in English; Appellant Alfaro never
requested an attorney nor did he ever request that the
interview be terminated.
Then Investigator Avila testified that he took the
statement of accused from Appellant Alfaro.101 When he
made contact, Appellant Alfaro appeared to have the
normal use of his mental and physical faculties; he
understood the English language; they spoke in
English.102 According to Avila, Appellant Alfaro never
requested an attorney; He did not ask that the
interview be terminated; Avila did not coerce Appellant
Alfaro or threaten him; He did not promise Appellant
Alfaro anything in exchange for his statement; He did
not deny Appellant Alfaro any basic necessities.103
99
RR11@38
100
RR11@38
101
Made contact around 6 am; RR11@42
102
RR11@44
103
RR11@44-45
47
According to Avila, Appellant Alfaro’s 2-page
statement of accused was prepared voluntarily on August
2, 2014. It was created and prepared at 6am;104
Appellant Alfaro talked while Avila typed as he’s
talking; Appellant Alfaro had an opportunity to review
and correct any mistakes; it is then printed out.105
The rights contained within the statement were
reviewed with Appellant Alfaro and he acknowledged he
understood them as indicated by his initials next to
each of the rights.106 According to Avila, after that,
Defendant Alfaro freely and voluntarily waived his
rights and gave the statement of accused.107
Although the Defense argued the Statement of
Accused was not given freely and voluntarily because
Appellant Alfaro was intoxicated108 at least while being
Mirandized – referring to State’s Exhibit 1 – the
104
this exhibit also contains the Miranda warnings (same as on State’s Exhibit
1)
105
RR11@47; This exhibit also has the Miranda Warnings listed on the exhibit
itself.
106
RR11@48-49
107
RR11@49; Avila testified that he did not have the impression Appellant
Alfaro was under the influence of any drug, alcohol or medication; It took
about 3 ½ hours to take the statement. RR11@54-55
108
He was not in the right state of mind to intelligently and freely waive his
rights
48
defense did not put on any evidence to that effect.
The defendant must offer credible109 evidence that would
create a reasonable doubt as to a specific factual
matter essential to the voluntariness of the
statement.110 This factual dispute can be raised only by
affirmative evidence, not by mere cross-examination
questions or argument.111
Defense counsel waived any possible error by not
objecting to the admissibility of the statement of
accused at the time of trial. State’s Exhibit 18 was
offered and admitted without objection.112 Exhibit 36
offered and admitted without objection.113
Given the evidence adduced by the State at the
suppression hearing and further considering the defense
produced no affirmative evidence to the contrary,
Appellant Alfaro was appropriately Mirandized; he
109
Noting of course that the trial court is the sole judge of the credibility
of the witnesses at the suppression hearing. Note further that Appellant did
not testify to his own intoxication; nor did Appellant Alfaro contradict the
testimony of the investigators that he had the normal use of his mental and
physical faculties at the time he was Mirandized and when he gave the
Statement of Accused.
110
See 40 GEORGE E. DIX & ROBERT O. DAWSON, TEXAS PRACTICE: CRIMINAL PRACTICE
AND PROCEDURE, § 4.194, at 282 (2d. ed.2001).
111
Madden, 242 S.W.3d at 513 nn. 22–23.
112
RR13@37; RR13@42
113
RR13@88
49
appeared to have understood his rights sufficiently
enough to voluntarily waive them. The evidence shows
that the Statement of Accused was given voluntarily.
Further, the evidence adduced at the suppression
hearing was devoid of any “police overreaching.”
Accordingly, undersigned counsel believes there is no
meritorious issue for appeal with respect to the
Court’s ruling on Appellant Alfaro’s Motion to suppress
the statement of accused. The undersigned does not
believe the record on appeal supports an abuse of
discretion on the part of the trial court.
Possible Issue 2: After review of the Record on appeal
and after reviewing the current state of the law, the
undersigned finds there was no error in not including a
voluntariness charge on admission of Appellant Alfaro's
statement.
A. Standard of Review - Almanza
Because Appellant Alfaro not properly object to the
jury charge Alfaro could only obtain reversal if any
jury charge errors, assuming they exist, were
50
egregious.114 Under Almanza, courts evaluate harm by
taking into account (1) the entire jury charge; (2) the
state of the evidence, including contested issues; (3)
arguments of counsel; and (4) any other relevant
information contained in the record as a whole.115
B) Voluntariness of Appellant's Statement of
Accused
Typically, a Court should submit a 38.23
instruction to the jury when voluntariness of a
confession is raised by the evidence. However, even if
Appellant Alfaro could show in the record that the
issue of voluntariness was raised: (1) because of
Appellant Alfaro's intoxication at the time he was
Mirandized, (2) because Appellant Alfaro’s intoxication
sufficiently compromised his ability to knowingly,
intelligently and voluntarily waive the rights
contained within the Miranda Warnings, he waived any
right to that instruction when he lodged “no objection”
114
(Conceding defense counsel did not object to the jury charge); see also
Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1985) (describing
“egregious harm”).
115
See Almanza, 686 S.W.2d at 171.
51
at the time the Miranda Form and the Statement of
Accused were admitted at trial.116 Appellant neither
requested a voluntariness instruction nor objected to
its exclusion.117
The first Almanza factor requires this Court to
consider the entirety of the jury charge.118 In this
case, the charge instructed the jury that Appellant was
charged with Aggravated Robbery and that Appellant
Alfaro voluntarily entered a plea of guilty, persisted
in his plea of guilty and further that it appeared to
the Court that Appellant Alfaro was competent to enter
such a plea of guilty. Accordingly, the Court
instructed the jury to find Appellant Alfaro guilty of
Aggravated Robbery and assess his punishment.”119 The
charge also contained general language, informing the
jury of the conditions of probation and general
principles of law. Assuming the charge was erroneous
by omission of an Article 38.23 instruction, as a
116
State’s Exhibit 18 was offered and admitted without objection. RR13@37;
RR13@42; Exhibit 36 offered and admitted without objection. RR13@88
117
Insert reference to jury charge conference
118
CR86
119
CR86
52
whole, the jury charge did not further compound any
harm suffered.120
The second Almanza factor requires this Court to
consider the state of the evidence. In this case, there
was no testimony which created a fact issue as to
whether Appellant Alfaro was coerced by the
investigators into signing his written confession.
Appellant Alfaro did not testify in order to negate his
guilt for the offense. In fact, Appellant entered a
plea of guilty.121 No harm can be shown on this basis.
Despite the lack of the Article 38.23 instruction,
Appellant Alfaro's the resultant finding of guilty was
resolved consistently with Appellant Alfaro’s
acceptance of responsibility when he entered a plea of
guilty.122 Implicit in any Almanza challenge here is a
contention that if the jury determined Appellant
Alfaro’s statement was involuntary, the State would
120
Again, noting that Defense counsel did not object to the admission of the
statement at trial and further recognizing the implied strategy of “throwing
defendant Alfaro on the mercy of the jury,” the undersigned does not presume
to allege ineffectiveness; rather counsel goes through this exercise in order
to explore any meritorious issues for appeal.
121
RR13@6
122
RR13@6
53
have not been able to carry its burden of showing
Appellant Alfaro’s guilt. The evidence was legally
sufficient for the jury to reasonably conclude that
Appellant was guilty of aggravated robbery. Considering
the circumstantial and direct evidence, the jury could
also have reasonably found Appellant guilty even
without the statement. Thus, Appellant's own plea
contributed to the finding of guilt for aggravated
robbery. In order to have acquitted Appellant, the jury
would have had to discredit all testimony, including
Appellant Alfaro’s plea of guilty. Under the particular
facts of this case, any showing of harm would amount to
theoretical, rather than action harm.
The third Almanza factor requires this Court to
consider the arguments of counsel. Defense counsel
addressed the voluntariness of Appellant's statement of
accused at the pretrial suppression hearing only. There
was no objection to either the admission of Appellant’s
Miranda form or the statement of accused.123 Instead,
123
RR15 @ State’s Exhibits 18 and 36
54
much of the focus of the defensive theory during
closing argument was that Appellant Alfaro was guilty
and was sorry for his actions.
The fourth Almanza factor requires this Court to
consider other relevant information contained in the
record. It bears repeating that Appellant affirmatively
confirmed to the trial court that he had no objections
to the jury charge.124 After reviewing the entire record
under the appropriate Almanza harm analysis standard,
it is apparent that egregious harm has not occurred in
this case. As such, the undersigned finds no
meritorious issue on appeal here.
Possible issue number three, whether appellant’s
finding of guilt was supported by the evidence.
Appellant entered a plea of guilty. The jury
sentenced appellant to imprisonment for fifty (50)
years for the offense of aggravated robbery.125 The
record reflects appellant pleaded guilty to the jury.126
124
RR14@120
125
CR93; 97; RR13@6
126
Defendant is arraigned in front of the jury. RR13@5; Appellant Alfaro
PLEADS “guilty” to the jury. RR13@6; Court admonishes and inquires several
55
This plea of guilty to the jury made Appellant
Alfaro’s trial a unitary proceeding.127 The trial court,
accordingly instructed the jury to find the defendant
guilty and assess punishment.128 Gonzales v. State
states, “the court should instruct the jury to find the
defendant guilty as part of the punishment charge.”129
In Basaldua v. State, the court noted that, though it
was argued that the charge did not require the jury
find the defendant guilty, the trial court used a
standard form that instructed the jury to find the
defendant guilty and assess his punishment.130 It is
well established that when a defendant has entered a
guilty plea to a felony before the jury, there remains
no issue of guilt for the factfinder to determine.131 A
plea of guilty substitutes for a jury verdict of guilt
and is itself a conviction.132 Like a jury's verdict, a
times whether he understands what he’s doing – to which the Appellant Alfaro
advises – Yes. RR13@6-7
127
State v. Aguilera, 165 S.W.3d 695, 698 n. 6 (Tex.Crim.App.2005).
128
CR86
129
868 S.W.2d 854, 857 (Tex.App.-Dallas 1993, no pet.) (emphasis added).
130
481 S.W.2d 851, 855 (Tex.Crim.App.1972); CR86
131
Holland v. State, 761 S.W.2d 307, 313 (Tex.Crim.App.1988). See also In re
State ex rel. Tharp, 393 S.W.3d 751, 757 (Tex.Crim.App.2012) (a plea of
guilty to a jury eliminates guilt as an issue to be determined).
132
Fuller v. State, 253 S.W.3d 220, 227 (Tex.Crim.App.2008).
56
plea of guilty is conclusive and nothing more is
required but to give judgment and sentence.133 “When a
defendant pleads guilty to a jury, the jury need not
return any verdict of guilty. The case simply proceeds
with a unitary punishment hearing.”134
Accordingly, the undersigned finds no meritorious
appeal as it relates to sufficiency of the evidence to
support the conviction.
Prayer for Relief
Wherefore, premises considered, Appellant prays
this Court grant the undersigned’s motion to withdraw
as counsel. No oral argument is requested or needed.
Respectfully submitted
O. Rene Flores, PC
State Bar No. 24012637
1308 S. 10th Ave.
Edinburg, TX 78539
(956)383-9090
(956)383-9050 (fax)
/S/ O. Rene Flores
O. Rene Flores
133
Id
134
Id.
57
CERTIFICATE OF SERVICE
I hereby certify that a true and accurate copy of
the foregoing Anders Briefing Brief was served in
accordance with the rules on the following persons:
Theodore “Ted” Hake
Assistant District Attorney
Hidalgo County District County Attorney
Appellate Division
Hidalgo County Courthouse
100 N. Closner
Edinburg, Texas 78539
By: Hand delivery
Appellant Juan Manuel Alfaro
TDCJ Number 01988848
Texas Department of Corrections
Connally Unit
899 FM 632
Kenedy, TX 78119
/S/ O. Rene Flores
O. Rene Flores
CERTIFICATE OF COMPLIANCE
Pursuant to TRAP 9.4 (3), I hereby certify this
Brief contains 10,289 words.
/S/ O. Rene Flores
O. Rene Flores
58