Jose Montoya v. State ( 2010 )

COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NOS. 02-08-287-CR
02-08-288-CR
02-08-289-CR
JOSE MONTOYA APPELLANT
V.
THE STATE OF TEXAS STATE
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FROM THE 362ND DISTRICT COURT OF DENTON COUNTY
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MEMORANDUM OPINION 1
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I. Introduction
Appellant Jose Montoya appeals his convictions for two counts of aggravated
assault and one count of murder. In two points, Montoya contends that (1) the trial
court erred by failing to give proper jury instructions and (2) the trial court abused its
discretion by admitting a videotape recording of his oral confession. W e affirm.
1
 See Tex. R. App. P. 47.4.
II. Factual and Procedural Background
A. The Incident
In June 2007, Montoya lived in an apartment with Rosa Lopez, Rosa’s adult
daughter Claudia Escoto, and another man named Isaac Scott. 2 On the night of
June 2, Rosa and Claudia were in one of the apartment’s bedrooms, 3 discussing the
need to move out if Montoya would not leave, when they heard a knock at the
bedroom door. Rosa opened the door to see Montoya standing there.
After a brief discussion, in which Rosa told Montoya that he needed to move
out, Montoya grabbed Rosa by the neck and hit her in the face multiple times. Rosa
fell back onto the bed and attempted to defend herself with her feet. Montoya then
pulled a knife from behind his back and stabbed Rosa a total of nine times on her
hands, arms, and back. In an effort to protect her mother, Claudia interceded and
Montoya stabbed her a total of seven times on her arms and stomach. Claudia
yelled for Isaac, who was asleep in the kitchen, to come and help. W hen Isaac
came into the room, he asked, “W hat’s happening, [Montoya]?” Montoya turned and
fatally stabbed Isaac in the chest. 4 As Montoya approached Rosa again, Rosa said,
2
 Rosa’s son and Claudia’s eight-month-old daughter also lived in the
apartment.
3
 Claudia’s eight-month-old daughter was also in the room.
4
 Medical evidence showed that Isaac died from a stab wound that
penetrated five inches into his chest, through the fourth left rib, the top left lung, and
the aorta.
2
“By God’s love, what have we done to you? Be fearful of God. Think about your
children. You are getting yourself into a big problem.” W hile Rosa was speaking,
Claudia managed to take the knife from Montoya. Montoya then left the apartment.
Officers with the Carrollton Police Department apprehended Montoya later that
night, arrested him, and took him to jail. After taking Montoya’s fingerprints and
photograph, detention officers placed him into the jail’s detox center. About sixteen
hours later, Carrollton Police Detective Angela Lundy interviewed him, using an
interpreter. After Detective Lundy read Montoya his Miranda 5 rights, he confessed
on videotape to the details of the attacks.
During the interview, Montoya confessed to the following. He and Claudia
were in a relationship that Rosa did not approve of. Rosa wanted Montoya to move
out of the apartment. On the night of the incident, he had drunk six or seven beers
and done “about 20“ in cocaine. 6 He had overheard Rosa and Claudia making plans
to get him out of the apartment and responded by taking a knife from the kitchen.
After being admitted into the bedroom, he had asked Rosa why she was “trying to
kick [him] out of the apartment.” Rosa responded that “that was what [he] deserved
. . . .” Rosa’s response made him angry, so he attacked her. He attacked Claudia
and Isaac when they tried to intervene. He did not have any problems with Isaac
5
 Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602 (1966).
6
 It is unclear from the record whether “about 20“ is referring to weight or
dollars.
3
and only stabbed him because Isaac had tried to stop him from attacking Rosa and
Claudia. He “regret[ted] not having done what [he] wanted to do with whom [he]
wanted to instead [he] did it to the person who did not deserve it.” Finally, when
asked if he wanted to kill Rosa, Montoya responded, “The problem was with Rosa,
maybe not kill her, I don’t know.”
The State charged Montoya with two counts of aggravated assault and one
count of murder.
B. Trial on the Merits
At trial, in addition to Rosa and Claudia both testifying to the facts stated
above, Sergeant Joel Payne with the Carrollton Police Department testified that on
June 2, he responded to a dispatch call regarding an aggravated assault. On his
way to the location of the assault, he stopped a vehicle matching the description of
the suspect’s vehicle. W hen he ordered the driver, later identified as Montoya, to
step out of the car, Montoya refused, asking in English, “W hy are you stopping me?”
At some point, Montoya drove off, and Sergeant Payne pursued him in his patrol
unit. During the chase, Montoya’s vehicle collided with a wall. Montoya then took
off on foot. Police officers gave chase, apprehended Montoya, and placed him
under arrest.
James Robertson, a detention officer for the Carrollton Police Department,
testified that he assisted in Montoya’s book in process. He stated that during intake,
Montoya smiled, laughed, and said, “I stabbed them, and I killed him” and “[s]he
4
deserved this.” W hen asked if he spoke Spanish, Robertson responded, “No.”
W hen asked if he had any difficulty communicating in English with Montoya,
Robertson again responded, “No.”
Detective Lundy testified that she spoke with Montoya about sixteen hours
after the offense occurred. She stated that she read Montoya his Miranda rights
before questioning him. W hen asked about her interaction with Montoya during
questioning, Detective Lundy responded:
Q. Now, do you—did you make any promises to [] Montoya?
A. No, I did not.
Q. Did you threaten him in any way?
A. No.
Q. Did he ever ask to speak to an attorney?
A. No, he didn’t.
Q. Did he ever ask to terminate the interview in any fashion?
A. No, he did not.
Q. Do you believe that when you read him his rights that he
fully understood them?
A. Yes, I do.
Q. And how did you make sure he understood them?
A. W ell, I believe that Mr. Montoya spoke English; but just
to make sure that he understood fully what was going on,
because these charges were very serious, I provided an
interpreter to interpret our interview.
5
Detective Lundy also testified that the interpreter was “an experienced interpreter”
who interpreted for the local municipal court. Finally, Detective Lundy stated that
Montoya did not seem to be intoxicated or under the influence of drugs when she
questioned him.
Outside the presence of the jury, Montoya objected to the admission of the
videotaped recording and transcription of his confession, claiming that his confession
was not voluntary because he had not waived his Miranda rights knowingly,
intelligently, and voluntarily. The trial court overruled Montoya’s objection, and it
allowed the videotape and transcript to be admitted as evidence.
At the close of evidence, Montoya did not request a jury instruction on the
voluntariness of his confession, and none was given. A jury found Montoya guilty
on all three counts and assessed punishment at fifteen years’ confinement for each
count of aggravated assault and seventy-five years’ confinement for the murder.
The trial court sentenced Montoya accordingly.
C. Procedural History
Montoya filed his notice of appeal and then filed an “Appellant’s Motion to
Abate for Trial Court’s Entry of Mandatory Findings of Fact and Conclusions of Law
Regarding Voluntariness of the Appellant’s Confession.” W e abated, and the trial
court entered the following findings of fact and conclusions of law:
I find that the defendant was given all of his rights by Detective
Lundy, per Texas Code of Criminal Procedure Article 38.22 Sec. 2 as
required for custodial interrogation, and that the rights are contained on
6
the video. These rights were given prior to any questions by Detective
Lundy. I find that the defendant understood these rights in a knowing
and intelligent way. I find the defendant appeared alert and aware on
the video. He did not appear intoxicated or confused in any way. I find
that the interview was taken approximately at 4 p.m. and over 16 hours
after the offense and arrest of the defendant. He communicated back
and forth with Detective Lundy, through the interpreter, a great deal
during the interview. There was never a moment where communication
broke down or that the defendant appeared confused. He answered
appropriately, in proper context, to all the questions he was asked;
indicating knowledge and understanding.
I find that the defendant knowingly, intelligently, and voluntarily
waived the rights set out in Article 38.22. I find that after a full and
complete reading of his 38.22 rights, Detective Lundy sought a waiver
of these rights. Detective Lundy asked the defendant, through the
interpreter, “Are you willing to tell the detective what happened last
night?” I find that the defendant responded precisely, and directly to
that question: “Si,” translated to ‘yes’. I find that the defendant’s 1st
waiver answer was soft spoken and that Detective Lundy appeared to
not have heard the defendant. Therefore she asked again, through the
interpreter, for a waiver of his 38.22 rights, “Do you want to tell the
detective what happened?” I find that the defendant answered
precisely and directly to that request for a waiver of rights, “Si,”
translated as ‘yes’. I find these two questions legally sufficient for a
waiver request of 38.22 rights. I find that the defendant understood
these two questions as a request for a waiver of his rights. I find the
defendant then waived his rights.
I find that the defendant’s statement to Detective Lundy, what
became State’s #102, was voluntarily made. From my viewing of the
video, I do not find the interview to be coercive in any fashion. The
interview was calm and without confrontation. All the voices were of
regular conversational tone. I find the body language of the parties in
the interview room to be inconsistent with tension, threats, or coercion.
No one yelled at the defendant. No one demanded answers from him.
The defendant was not threatened in any way. I find Detective Lundy
credible when she testified that no one made any promises to the
defendant, or threatened him in any way, and that the defendant did not
request an attorney, or request to terminate the interview. In the video
itself I find there are no threats, no promises, no request of counsel, or
request to terminate the interview. I find that the defendant waived his
7
rights of his own free will. His will was not overcome by the State,
indeed the State made no effort to coerce the defendant in any way.
I find that the defendant made his statement; State’s #102, freely and
voluntarily, without threat or promise.
From the totality of the circumstances, I find that the defendant’s
statement, exhibit #102, was freely and voluntarily made. The
statement was made after he received a complete and accurate
reading of his rights under TXCCP 38.22, sec. 2, and the warnings are
contained in the electronic recording, the video. I find that the
defendant knowingly, intelligently, and voluntarily waived the rights set
out in 38.22, before any questioning. I find that the defendant gave the
statement of his own free will.
This appeal was reinstated following the entry of these findings and conclusions.
III. Jury Instruction
In his first point, Montoya claims he suffered egregious harm because the trial
court did not instruct the jury under sections 6 and 7 of article 38.22 of the Texas
Code of Criminal Procedure as to the voluntariness of his statements to Detective
Lundy. In response, the State concedes that a section 6 general voluntariness
instruction should have been given but argues that Montoya failed to raise any
evidence that would have entitled him to a section 7 instruction. W e disagree with
the State’s concession as to the section 6 instruction but agree with its argument as
to the section 7 instruction.
A. Standard of Review
Appellate review of error in a jury charge involves a two-step process. Abdnor
v. State, 871 S.W .2d 726, 731 (Tex. Crim. App. 1994); see also Sakil v. State, 287
S.W .3d 23, 25–26 (Tex. Crim. App. 2009). Initially, we must determine whether error
8
occurred. If it did, we must then evaluate whether sufficient harm resulted from the
error to require reversal. Abdnor, 871 S.W .2d at 731–32.
B. Applicable Law
A statement of an accused may be used as evidence against him if it appears
that it was freely and voluntarily made without compulsion or persuasion. Tex. Crim.
Proc. Ann. art. 38.21 (Vernon 2005). There are several theories that a defendant
may use to argue his statement was not freely and voluntarily made and thus may
not be used as evidence against him: (1) article 38.22, section 6 (“general
voluntariness”); (2) Miranda as codified in Texas Code of Criminal Procedure article
38.22, sections 2 and 3; or (3) the due process clause. Oursbourn v. State, 259
S.W .3d 159, 169 (Tex. Crim. App. 2008). The theory of involuntariness determines
whether and what type of a jury instruction is appropriate. Id. Article 38.22 of the
code of criminal procedure governs the admissibility of an accused’s written and oral
statement that results from custodial interrogation. Id. at 171. However, section 6
of article 38.22 applies to both an accused’s custodial and noncustodial statements,
requiring that even noncustodial statements must be voluntary to be admitted. Id.
W hen a claim is raised under article 38.22, a “general” voluntariness instruction may
be appropriate. Id. at 174. The types of “general” instructions that may be
appropriate include an article 38.22, section 6 voluntariness instruction and an article
38.22, section 7 warnings instruction (regarding the warnings required by sections
2 and 3). Id. at 173. It is the defendant’s responsibility to delineate which type of
9
“involuntariness” he is claiming so that the judge can determine the appropriate
instruction. Id. at 174.
A trial court “has an absolute sua sponte duty to prepare a jury charge that
accurately sets out the law applicable to the specific offense charged.” Delgado v.
State, 235 S.W .3d 244, 249 (Tex. Crim. App. 2007); see Tex. Code Crim. Proc. Ann.
art. 36.14 (Vernon 2007). W hen a statute, such as article 38.22, requires an
instruction under certain circumstances, that instruction is “law applicable to the
case,” and the trial court must instruct the jury on what is required under the statute.
Oursbourn, 259 S.W .3d at 180.
C. Discussion
At trial, Montoya made the following objection, outside the presence of the
jury:
[M]y objection is under 38.22, section 3(a)(2), wherein the
oral statement is required to demonstrate that the accused
knowingly, intelligently, and voluntarily waived any rights
set out.
W e hear the Miranda warning read to the—to Mr.
Montoya. However, the question that he answers “yes” to
is, “do you want to speak to me?” There is never any
indication that [Montoya] directly understood, that he
acknowledged that he understood Miranda and its
consequences.
W hen [Montoya] is asked initially, immediately after the
Miranda warning is given, he does not answer, and the
officer begins to have further discussion—discussions with
him that I think can be taken almost as if it’s a—some sort
of promise of leniency or something of that nature.”
10
1. Article 38.22, section 6
Article 38.22, section 6 becomes “law applicable to a case” once a question
is raised and actually litigated as to the general voluntariness of an accused’s
statement; however, a factual dispute is not necessary. Id. at 175–76, 180. A
question of voluntariness is raised when a party notifies the trial court or the trial
court raises the issue on its own. Id. at 175. A claim under section 6 that an
accused’s statement was made involuntarily may include situations involving police
overreaching, youth, intoxication, illness or medication, mental incapacitation, or
other disabilities. Id. at 172–73. Although, these fact scenarios alone are not enough
to render a statement inadmissible, they are factors a jury is entitled to consider
when armed with a proper instruction. Id. at 173.
The court of criminal appeals has stated that the sequence of events
contemplated by section 6 is as follows:
(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 trial judge
decides whether the confession was voluntary; (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.
Id. at 175 (emphasis added).
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Here, we agree with Montoya’s assertion that he raised the issue of
voluntariness to the trial court when he objected, outside the presence of the jury,
to the voluntariness of his statement under article 38.22. 7 W e disagree, however,
with his conclusion that he offered evidence before the jury, thereby mandating the
requested jury charge instruction.
Under article 38.22, there is no error in refusing to include a jury instruction
when there is no evidence before the jury to raise the issue. Miniel v. State, 831
S.W .2d 310, 316–17 (Tex. Crim. App. 1992); Hernandez v. State, 819 S.W .2d 806,
812 (Tex. Crim. App. 1991) (citing Wagner v. State, 687 S.W .2d 303, 307 (Tex.
Crim. App. 1984)), overruled on other grounds by Fuller v. State, 829 S.W .2d 191
(Tex. Crim. App. 1992). Some evidence must have been presented to the jury that
the defendant’s confession was not given voluntarily. Alvarado v. State, 912 S.W .2d
199, 211 n.9 (Tex. Crim. App. 1995); Hernandez, 819 S.W .2d at 812 (citing Brooks
v. State, 567 S.W .2d 2 (Tex. Crim. App. 1978)).
W e note that Montoya does not discuss, or provide a citation to, any evidence
before the jury showing that the issue of voluntariness was actually litigated.
Instead, he cites only to the arguments that he raised outside the presence of the
7
 At trial, Montoya objected to the voluntariness of his statement on two
grounds—failure to acknowledge his understanding of Miranda and Detective
Lundy’s alleged promise of leniency. Thus, to the extent Montoya asserts that his
statement was involuntary because “he was still under the influence of cocaine
and/or alcohol at the time of his interrogation,” he has failed to preserve this issue
for review. See Tex. R. App. P. 33.1(a)
12
jury. Upon independent review of the record, we cannot find where Montoya testified
before the jury, called witnesses, or cross-examined the State’s witnesses on the
issue of voluntariness—that is, there is no testimony pertaining to Detective Lundy’s
alleged promise of leniency. 8 In fact, the only testimony pertaining to the
voluntariness of Montoya’s statement came during the State’s direct examination of
Detective Lundy. See Brooks, 567 S.W .2d at 3 (holding that evidence presented by
the State in anticipation of an attack upon the voluntariness of a confession does not
put voluntariness in issue). Thus, because the parties did not litigate the
voluntariness of Montoya’s statement before the jury, the trial court did not err by not
including a section 6 instruction sua sponte in the jury charge. See Hernandez, 819
S.W .2d at 812–13 (holding appellant was not entitled to a section 6 instruction
because he failed to present evidence to the jury that his statements were not given
voluntarily); see also Aldaba v. State, No. 14-08-00417-CR, 2009 W L 1057685, at
*3 (Tex. App.—Houston [14th Dist.] Apr. 16, 2009, pet. ref’d) (concluding trial court
was not on notice that a section 6 instruction might be required where the parties did
not litigate the voluntariness of appellant’s statements in some manner).
8
 Although section 6 does not require that there be a fact dispute, it does
require that evidence pertaining to the issue of voluntariness be submitted to the
jury. See Oursbourn, 259 S.W .3d at 175. How else is the jury to know that there is
a voluntariness issue if, as in this case, it does not receive any evidence as to the
alleged promise of leniency?
13
2. Article 38.22, section 7
Article 38.22, section 7 becomes “law applicable to a case” when the evidence
raises an issue regarding (1) law enforcement’s compliance with the statutory
warnings set out in Texas Code of Criminal Procedure article 38.22, sections 2–3
and (2) the voluntariness of a defendant’s waiver of his rights. Oursbourn, 259
S.W .3d at 176. An issue is “raised by the evidence” if there is a genuine factual
dispute. Id. A genuine factual dispute occurs when the defendant offers evidence
that would create a reasonable doubt as to a specific factual matter that relates to
compliance with the statutory warnings of sections 2 or 3 of article 38.22 and is,
therefore, essential to the voluntariness of the statement. See id. at 177. W hen
there is no disputed factual issue, the legality of compliance with the statutory
warnings regarding the statement is determined by the trial court alone, and a
section 7 instruction is not required. Id. at 177–78.
Section 3 of article 38.22 provides that no oral statement of an accused made
as a result of custodial interrogation shall be admissible against the accused in a
criminal proceeding unless (1) the statement was recorded and (2) prior to the
statement but during the recording, the accused was warned of his rights and
knowingly, intelligently, and voluntarily waived those rights. Tex. Code Crim. Proc.
Ann. art. 38.22, § 3 (Vernon 2005). The warning must inform a defendant of the
following rights:
14
(1) [H]e has the right to remain silent and not make any statement at all
and that any statement he makes may be used against him at his trial;
(2) any statement he makes may be used as evidence against him in
court;
(3) he has the right to have a lawyer present to advise him prior to and
during any questioning;
(4) if he is unable to employ a lawyer, he has the right to have a lawyer
appointed to advise him prior to and during any questioning; and
(5) he has the right to terminate the interview at any time[.]
Id. art. 38.22, § 2.
Here, although Montoya’s statement was clearly made as a result of a
custodial interrogation, he cites no facts to support his argument that the trial court
should have included a section 7 instruction. Rather, Montoya states only that the
“issue was raised.” After an independent review, however, we can find no evidence
disputing Detective Lundy’s compliance with the statutory warnings set out in article
38.22, sections 2 and 3 or the voluntariness of Montoya’s waiver of those rights.
Thus, the trial court did not err by failing to include a section 7 instruction sua sponte
in the jury charge.
D. Conclusion
Because Montoya was not entitled to instructions under sections 6 and 7 of
article 38.22, the trial court did not err by failing to submit a jury charge on the
question of voluntariness. See White v. State, 779 S.W .2d 809, 827 (Tex. Crim.
App. 1989) (concluding appellant was not entitled to section 6 instruction); see also
15
Brownlee v. State, 944 S.W .2d 463, 467–68 (Tex. App.—Houston [14th Dist.] 1997,
pet. ref’d) (concluding no error occurred in failing to submit a section 7 instruction on
voluntariness). Accordingly, we overrule Montoya’s first point.
IV. Admission of Evidence
In his second point, Montoya asserts that the trial court abused its discretion
by admitting the videotape of his oral confession after he timely objected on the
ground that the confession had been obtained in violation of article 38.22 of the code
of criminal procedure.
A. Standard of Review
An appellate court may not disturb a trial court’s evidentiary ruling absent an
abuse of discretion. Winegarner v. State, 235 S.W .3d 787, 790 (Tex. Crim. App.
2007). In other words, as long as the trial court’s decision was within the zone of
reasonable disagreement and was correct under any theory of law applicable to the
case, it must be upheld. Id. (citing Montgomery v. State, 810 S.W .2d 372, 391 (Tex.
Crim. App. 1990) (op. on reh’g)). This is so because trial courts are usually in the
best position to make the call on whether certain evidence should be admitted or
excluded. Id.
B. Applicable Law
As discussed above, under article 38.22, section 3, an oral statement resulting
from a custodial interrogation is admissible only if an officer warns the defendant of
his Miranda rights and the accused executes a knowing, intelligent, and voluntary
16
waiver of those rights. See Tex. Code Crim. Proc. Ann. art. 38.22, § 3; see also
Penry v. State, 903 S.W .2d 715, 744 n.24 (Tex. Crim. App. 1995) (stating that Texas
statutory warnings codified in article 38.22 comply with Miranda).
To determine whether an accused effectively executed a valid waiver of rights,
we must decide whether the waiver was a “product of a free and deliberate choice
rather than intimidation, coercion, or deception.” Moran v. Burbine, 475 U.S. 412,
421, 106 S. Ct. 1135, 1141 (1986); Ripkowski v. State, 61 S.W .3d 378, 384 (Tex.
Crim. App. 2001). W e must also determine whether the waiver was given “with a full
awareness of both the nature of the right being abandoned and the consequences
of the decision to abandon it.” Moran, 475 U.S. at 421, 106 S. Ct. at 1141;
Ripkowski, 61 S.W .3d at 384. An express waiver is not necessary, and the trial court
may find facts and evidence sufficient to support an inference of waiver. See Rocha
v. State, 16 S.W .3d 1, 12 (Tex. Crim. App. 2000). W e consider the totality of the
circumstances when determining whether an accused effectively waived his rights
and thereby made a statement voluntarily. Moran, 475 U.S. at 421, 106 S. Ct. at
1141.
C. Discussion
The pertinent portions of Detective Lundy’s interview, along with what the
interpreter said translated into English, are as follows:
17
Lundy: Before we talk I need to read you your Miranda
warning.
Interpreter: Before you talk she needs to tell you your rights.
Lundy: OK. Says you have the right to remain silent and
not make any statement.
Interpreter: Says you have the right to remain quiet and
not make any statement.
Lundy: And any statement you make may be used
against you at your trial.
Interpreter: And if you make a statement it can be used
against you as evidence in a trial.
Lundy: Any statement you make may be used as
evidence against you in court.
Interpreter: Any statement you make can be [sic] as
evidence to go to court.
Lundy: You have the right to have a lawyer present to
advise you
Interpreter: You have the right to hire an attorney to
advise you
Lundy: prior to and during any questioning.
Interpreter: prior to and during any interview or
questioning.
Lundy: If you’re unable to employ a lawyer
Interpreter: If you’re unable to employ a lawyer
Lundy: you have the right to have a lawyer appointed to
advise you
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Interpreter: you have the right to have a lawyer assigned
to advise you.
Lundy: prior to and during any questioning
Interpreter: prior to and during any interview or
questioning
Lundy: and you have the right to terminate this interview
at any time.
Interpreter: and you also have the right to stop this
interview at any moment.
Lundy: Are you willing to talk to me?
Interpreter: Are you willing to talk to the detective?
Lundy: I just want to hear your side of the story. I know
what happened last night. I just want to hear what you
have to say about that ‘cause I know there’s got to be an
explanation for you getting so upset and so angry last
night.
Interpreter: The detective is saying that she already
knows what happened last night. She only wants to hear
your side of the story. She understands that maybe
something happened to you that bothered you very much.
Lundy: I want to hear your side of the story.
Interpreter: She only wants to hear your side of the story.
Lundy: Are you willing to tell me what happened?
Interpreter: Are you willing to tell the detective what
happened last night?
Lundy: Rosa and Claudia, they’re going to be fine.
Interpreter: Rosa [and] Claudia are going to be fine.
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[Montoya:] Yes.
Lundy: But you know that Isaac . . . died last night.
Interpreter: But you know that Isaac . . . um . . . died last
night.
Lundy: The baby, the baby is fine.
Interpreter: The baby is fine.
Lundy: So, can you tell me what happened?
Interpreter: Do you want to tell the detective what
happened?
[Montoya:] Yes.
Montoya claims that, because he “never gave any verbal or nonverbal
indication that he either understood [his] rights or wished to waive them,” he did not
intelligently, knowingly, and voluntarily waive those rights. [Emphasis in original.] In
addition, Montoya asserts that the interpreter’s imprecise translations led to
miscommunications regarding his rights. Because Montoya does not challenge the
validity of his waiver on the ground that it was the product of intimidation, coercion,
or deception, we need only determine whether Montoya’s waiver was given “with a
full awareness of both the nature of the right being abandoned and the
consequences of the decision to abandon it.” Moran, 475 U.S. at 421, 106 S. Ct. at
1141; Ripkowski, 61 S.W .3d at 384.
1. Warnings: Fully Effective Equivalent
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First, we note that warnings do not have to be given verbatim to be valid. See
Bible v. State, 162 S.W .3d 234, 240 (Tex. Crim. App. 2005) (explaining that a
warning is sufficient if it is the “fully effective equivalent” of the warning outlined in
article 38.22, section 2). Montoya claims that the interpreter’s translation of “read
you your Miranda warning” into “she needs to tell you your rights,” among other
translations, led to miscommunications of his rights. This particular statement by
Detective Lundy, however, is not part of the warning recited in section 2 of article
38.22 and, therefore, is not required to meet the “fully effective equivalent” standard.
Moreover, in analyzing the portion of the interview that does contain the warning
recited in section 2 of article 38.22, we conclude that the interpreter’s word choices
do not convey a different meaning from those used by Detective Lundy or the
statute. See Bennett v. State, 742 S.W .2d 664, 677 (Tex. Crim. App. 1987), vacated
on other grounds, 486 U.S. 1051 (1988) (concluding that the substitution of the word
“trial” for “court” and the word “may” for “can” in the warning given to appellant did
not dilute the meaning or import of the warning recited in section 2 of article 38.22).
Thus, the interpreter’s translation of Montoya’s rights are the fully effective equivalent
of those stated in the statute.
2. Waiver of Rights
W e next address the validity of Montoya’s waiver. The record shows that no
express waiver of Montoya’s rights appears on the recording. However, “the law
does not require that the recording reflect an express waiver of [] rights.” Rocha, 16
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S.W .3d at 12 (citing Etheridge v. State, 903 S.W .2d 1, 16 (Tex. Crim. App. 1994),
cert. denied, 516 U.S. 920 (1995)). A waiver of rights may be inferred from the
actions and words of the person interrogated. State v. Oliver, 29 S.W .3d 190,
191–92 (Tex. App.—San Antonio 2000, pet. ref’d) (citing Barefield v. State, 784
S.W .2d 38, 40–41 (Tex. Crim. App. 1989), overruled on other grounds by
Zimmerman v. State, 860 S.W .2d 89 (Tex. Crim. App. 1993)).
Montoya argues that in the cases in which courts have held that an express
waiver is unnecessary, there was, however, at least evidence that the defendant
acknowledged his understanding of his rights, which is not the case here. See, e.g.,
Cubas v. State, No. AP-74953, 2005 W L 3956312, at *3 (Tex. Crim. App. Apr. 12,
2006) (not designated for publication) (reasoning voluntary waiver existed when
defendant indicated that he understood his rights and declined to ask any questions
about them); Alvarez v. State, No. 02-07-00457-CR, 2009 W L 112783, at *3 (Tex.
App.—Fort W orth Jan. 15, 2009, no pet.) (mem. op., not designated for publication)
(concluding voluntary waiver existed when record demonstrated that the defendant
indicated understanding of the warnings by nodding twice during the warnings and
by responding “yes, sir” when informed that by answering, he would be doing so of
his own free will); Solis-Reyes v. State, No. 13-07-00322-CR, 2008 W L 1822636, at
*4 (Tex. App.—Corpus Christi Apr. 24, 2008, no pet.) (mem. op., not designated for
publication) (declaring voluntary waiver when the defendant was read the warnings
in Spanish and indicated he understood the warnings). Montoya seems to argue
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that, because he did not expressly waive his rights or expressly acknowledge that
he understood his rights, his waiver is invalid. W e disagree.
The test for determining the validity of a waiver is not whether the defendant
expressly waived his rights or expressly acknowledged his understanding of his
rights; instead, the test is whether, based on the totality of the circumstances, waiver
was given “with a full awareness of both the nature of the right being abandoned and
the consequences of the decision to abandon it.” See Moran, 475 U.S. at 421, 106
S. Ct. at 1141.
Our review of the video indicates that immediately after a full and complete
reading of his 38.22 rights, Detective Lundy sought a waiver of these rights by asking
Montoya, “Are you willing to tell [me] what happened last night?” Although Montoya
did not respond until after the second request, he did respond “yes” and appears to
have willingly discussed the events with Detective Lundy.
Moreover, the trial court found, and we agree, that Montoya “communicated
back and forth with Detective Lundy, through the interpreter, a great deal during the
interview. There was never a moment where communication broke down or [where
Montoya] appeared confused. He answered appropriately, in proper context, to all
the questions he was asked; indicating knowledge and understanding.” One could
reasonably infer that if Montoya understood the questions being asked of him during
the interview, he also understood the reading of his rights and the consequences of
abandoning those rights—namely, that he had the right to remain silent and that
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anything he said could be used against him at his trial. Thus, based on the totality
of the circumstances, the trial court did not abuse its discretion by finding that
Montoya’s waiver was given with a full awareness of both the nature of the right
being abandoned and the consequences of the decision to abandon it.
D. Conclusion
Because the interpreter’s translation of Montoya’s rights is the fully effective
equivalent of those stated in the statute and because Montoya intelligently,
knowingly, and voluntarily waived his rights, we hold that the trial court did not abuse
its discretion by admitting the videotape of Montoya’s confession. Accordingly, we
overrule Montoya’s second point.
V. Conclusion
Having overruled both of Montoya’s points, we affirm the trial court’s judgment.
BOB MCCOY
JUSTICE
PANEL: LIVINGSTON, C.J.; DAUPHINOT and MCCOY, JJ.
DAUPHINOT, J. concurs in part and dissents in part without opinion.
DO NOT PUBLISH
Tex. R. App. P. 47.2(b)
DELIVERED: April 22, 2010
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