Fidencio Castillo Cosme v. the State of Texas ( 2023 )

NUMBER 13-21-00282-CR
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI – EDINBURG
FIDENCIO CASTILLO COSME, Appellant,
v.
THE STATE OF TEXAS, Appellee.
On appeal from the 370th District Court
of Hidalgo County, Texas.
MEMORANDUM OPINION
Before Chief Justice Contreras and Justices Benavides and Longoria
Memorandum Opinion by Justice Benavides
Appellant Fidencio Castillo Cosme appeals his conviction for murder, a first-degree
felony. See TEX. PENAL CODE ANN. § 19.02(c). A jury sentenced Cosme to eighty-five
years’ imprisonment. See id. § 12.32(a). By one issue with multiple subparts, Cosme
contends that the trial court erred by admitting his custodial statement when he was not
adequately warned of his rights. See TEX. CODE CRIM. PROC. ANN. art. 38.22, §§ 2(a), 3(a);
Miranda v. Arizona, 384 U.S. 436 (1966). We affirm.
I. BACKGROUND
The parties are familiar with the underlying facts, so we detail only those facts
necessary to resolve the issue raised on appeal. On September 28, 2020, Detective
Danny Longoria of the Mercedes Police Department interviewed Cosme. 1 A video
recording was made of the interview. Detective Longoria began the interview by
admonishing Cosme as follows:2
Detective Longoria: Mr. Cosme, you have the right to remain silent,
anything you say can and will be used against you
in a court of law. You have the right to talk to a
lawyer and have him present with you while you are
being questioned. If you cannot afford to hire a
lawyer, one will be appointed to you and represent
you for—represent you before any questioning if you
wish. You can decide at any time to exercise these
rights and not answer any of my questions or make
any statements. Do you understand each of the
rights that I’ve explained to you?
Cosme: Yes, sir.
Detective Longoria: With these in mind, do you wish to talk to me?
Cosme: Yes, sir.
Cosme proceeded to answer questions about the offense for which a grand jury later
indicted him.
On July 14, 2021, the trial court heard testimony from Detective Longoria and
1 Detective Longoria is identified at various points in the record as “Detective Longoria,”
“Investigator Longoria,” and “Officer Longoria.” For the sake of this appeal, we refer to him by the title he
identified himself with during the hearing on the admissibility of Cosme’s recorded statement.
2 We transcribe portions of the recording as necessary to resolve the issue before us.
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argument from the parties in connection with the admissibility of the recorded statement.
Cosme’s trial counsel argued that he “was not properly Mirandized” before he gave his
statement, and thus, he did not provide a valid waiver of his rights.
The trial court found “substantial compliance” with the requirements of Miranda
and article 38.22 of the Texas Code of Criminal Procedure. The statement was later
admitted into evidence and published for the jury. Following a trial on the merits that
ultimately resulted in Cosme’s conviction and sentencing, this appeal began.
II. ADMISSIBILITY OF RECORDED STATEMENT
By one issue, Cosme contends that the trial court erred by admitting the recorded
statement because “the [article 38.22, § 2(a)] warnings were rushed, there was no signed
waiver by . . . Cosme, and the investigator never obtained a signed written statement or
declaration from . . . Cosme.”
A. Standard of Review & Applicable Law
“The Fifth Amendment prohibits the government from compelling a criminal
suspect to bear witness against himself.” Pecina v. State, 361 S.W.3d 68, 74–75 (Tex.
Crim. App. 2012) (citing U.S. CONST. amend. V). Texas statutory law provides further
support for the right against self-incrimination, forbidding the admission of an accused’s
statement made as a result of custodial interrogation unless additional requirements have
been met. See TEX. CODE CRIM. PROC. ANN. art. 38.22. The warnings provided must
inform a defendant of the following:
(1) he 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 trial;
(2) any statement he makes may be used as evidence against him in
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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. § 2(a).
For recorded oral statements made as a result of custodial interrogation, the
legislature has mandated strict compliance with article 38.22. TEX. CODE CRIM. PROC. ANN.
art. 38.22, § 3(e); Woods v. State, 152 S.W.3d 105, 116 (Tex. Crim. App. 2004); State v.
Fernandez, 567 S.W.3d 346, 354 (Tex. App.—Amarillo 2019, no pet.). To ensure strict
compliance, law enforcement should either give the warnings required by article 38.22,
§ 2(a) verbatim or their “fully effective equivalent.” TEX. CODE CRIM. PROC. ANN. art. 38.22,
§ 3(e)(2); Bible v. State, 162 S.W.3d 234, 240 (Tex. Crim. App. 2005). A “fully effective
equivalent” is one that does not dilute the meaning or import of the warnings required by
article 38.22, § 2(a). Bible, 162 S.W.3d at 240–41.
In addition to being warned of their rights, defendants must also waive those same
rights. State v. Lujan, 634 S.W.3d 862, 865 (Tex. Crim. App. 2021). “Only ‘warned and
waived’ custodial statements are admissible in evidence.” Id. (quoting Oursbourn v. State,
259 S.W.3d 159, 171 (Tex. Crim. App. 2008)). Generally, neither a written nor an oral
express waiver is required to waive these rights. Joseph v. State, 309 S.W.3d 20, 24 (Tex.
Crim. App. 2010). “The question is not whether Appellant ‘explicitly’ waived his . . . rights,
but whether he did so knowingly, intelligently, and voluntarily.” Id. at 25.
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In reviewing a trial court’s ruling on the admissibility of a statement made as a
result of custodial interrogation, “we apply a bifurcated standard of review.” Hawkins v.
State, 592 S.W.3d 602, 609 (Tex. App.—Corpus Christi–Edinburg 2020, pet. ref’d). “We
afford almost total deference to the trial court’s rulings on questions of historical fact and
on application of law to fact questions that turn upon credibility and demeanor,” while “we
review de novo the trial court’s rulings on application of law to fact questions that do not
turn upon credibility and demeanor.” Pecina, 361 S.W.3d at 79. “We will sustain the trial
court’s decision if it is correct on any theory of law applicable to the case.” Barnes v. State,
665 S.W.3d 192, 197 (Tex. App.—Eastland 2023, no pet.).
B. Analysis
Cosme does not argue that the fully effective equivalent of the warnings required
by article 38.22, § 2(a) was not given; instead, he argues that “the [article 38.22, § 2(a)]
warnings were rushed, there was no signed waiver by . . . Cosme, and the investigator
never obtained a signed written statement or declaration from . . . Cosme.”3
In Baiza v. State, the Eastland court of appeals noted that the detective “read the
[article 38.22, § 2(a)] warnings very quickly, to the point that the later warnings are
unintelligible at normal speed, particularly the warning that Appellant had the right to
3 We note that the court of criminal appeals has held that a warning that fails to advise a defendant
that he has a right to terminate the interview at any time does not strictly comply with the mandate of article
38.22. Woods v. State, 152 S.W.3d 105, 116–18 (Tex. Crim. App. 2004). Similarly, our sister court has held
that advising a defendant that he has the right to not answer questions is not the same as advising him that
he has the right to terminate the interview at any time. See State v. Fernandez, 567 S.W.3d 346, 355 (Tex.
App.—Amarillo 2019, no pet.) (“To the extent that the State proposes that telling Fernandez ‘he could invoke
his right to remain silent and not speak with the officers’ was equivalent to telling him he could end the
interview, it leaves us wondering why the legislature added the admonishment.”). However, Cosme did not
brief this issue. We decline to address any potential unassigned error. See Leza v. State, 351 S.W.3d 344,
351–52 (Tex. Crim. App. 2011) (“The functional equivalent of this warning was administered to the
appellant, and he does not now contend otherwise.” (footnote omitted)).
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terminate the interview at any time.” 487 S.W.3d 338, 343 (Tex. App.—Eastland 2016,
pet. ref’d). The court ultimately concluded that “the trial court improperly overruled
Appellant’s objection to the admission of the audio recording,” harm occurred, and
reversal was appropriate. Id. at 346–47. In Presiding Judge Keller’s opinion dissenting
from the refusal of the State’s petition for review, she noted, “If the trial court had ruled
that the warning was unintelligible, I would not be inclined to disturb that ruling, but the
trial court ruled in favor of the State, and it does seem like the court of appeals has failed
to appropriately defer to that ruling.” Baiza v. State, 502 S.W.3d 801, 803 (Tex. Crim. App.
2016) (Keller, P.J., dissenting from refusal of the petition for review).
Here, Cosme blanketly asserts that, because of the speed at which they were
given, the warnings were “not fully understood by” him. However, we must defer to the
trial court’s implied finding that the warnings were not stated unintelligibly. See id.; Pecina,
361 S.W.3d at 79. This is not a close call. As we have illustrated by transcribing the
warnings above, Detective Longoria’s warnings, though quickly recited, were not
unintelligible. “The trial judge reviewed the recording of the interrogation and could
measure the officer’s perceptions with respect to the voluntariness of the appellant’s
waiver for himself.” Leza v. State, 351 S.W.3d 344, 352 (Tex. Crim. App. 2011). We
therefore conclude that the trial court did not err by implicitly finding that the warnings
were conveyed at an adequate speed and did not affect whether Cosme knowingly,
intelligently, or voluntarily waived his rights. See Pecina, 361 S.W.3d at 79. We overrule
this sub-issue.
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Cosme also argues that the trial court erred by admitting the recorded statement
because he did not sign a written waiver that included the article 38.22, § 2(a)
admonishments, and he did not sign a written declaration. Cosme “never presented
th[ese] particular argument[s] in the trial court for a ruling, however, and so he has not
preserved [them] for appeal.” See Leza, 351 S.W.3d at 353; TEX. R. APP. P. 33.1(a)(1). In
any event, Cosme’s “objection to the absence of a written or articulated waiver runs
contrary to ‘the general rule . . . that neither a written nor an oral express waiver is
required.’” See Joseph v. State, 309 S.W.3d 20, 24 (Tex. Crim. App. 2010) (quoting
Watson v. State, 762 S.W.2d 591, 601 (Tex. Crim. App. 1988)) (alteration in original). We
overrule these sub-issues.
We overrule Cosme’s sole issue on appeal.4
III. CONCLUSION
We affirm the trial court’s judgment.
GINA M. BENAVIDES
Justice
Do not publish.
TEX. R. APP. P. 47.2(b).
Delivered and filed on the
10th day of August, 2023.
4 Because the trial court did not err in implicitly finding that Cosme knowingly, intelligently, and
voluntarily waived the rights set forth in article 38.22, § 2(a), we need not address Cosme’s contention that
the statements contained in the recording were not adequately corroborated. See TEX. CODE CRIM. PROC.
ANN. art. 38.22, § 3(c) (providing that article 38.22, § 3(a) “shall not apply to any statement which contains
assertions of facts or circumstances that are found to be true and which conduce to establish the guilt of
the accused . . . .”); TEX. R. APP. P. 47.1 (“The court of appeals must hand down a written opinion that is as
brief as practicable but that addresses every issue raised and necessary to final disposition of the appeal.”).
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