Humberto Rodriguez, Jr. v. State

NUMBER 13-00-771-CR

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI - EDINBURG

HUMBERTO RODRIGUEZ, JR., Appellant,

v.

THE STATE OF TEXAS, Appellee.

On appeal from the 92nd District Court of Hidalgo County, Texas.

O P I N I O N

Before Chief Justice Valdez and Justices Yañez and Rodriguez

Opinion by Justice Yañez

By seven points of error, appellant Humberto Rodriguez, Jr. challenges his conviction for the aggravated kidnapping and capital murder of Hector Salinas after a jury found him guilty of both offenses. The jury assessed punishment for the aggravated kidnapping to be twenty-eight years confinement. As for the capital murder, the State did not seek the death penalty and the judge sentenced appellant to life in prison. The trial court has certified that this case is not a plea bargain case and the defendant has the right of appeal. See Tex. R. App. P. 25.2(a)(2). We affirm in part, and reverse and render in part.

I. Facts

Briefly, the State alleges appellant was part of a conspiracy to kidnap Hector Salinas in McAllen, Texas, then torture and murder him in Mexico. The following testimony outlines the evidence.

A. Non-accomplice Testimony

1. Background Regarding the Victim

DEA agent Tony Dominguez testified: Hector Salinas was arrested when drugs were found at his second-hand clothing store in McAllen on May 1, 1997; he made a deal to implicate the individuals for whom he was storing the drugs and was released the next day; and he was scheduled to testify in a federal trial on July 21, 1997.

Guadalupe Salinas, Hector's wife, testified that she saw appellant come to Hector's store the day before the kidnapping to ask him about a car in front of the store that was for sale.

2. Background Regarding Appellant

Juanita Mendoza, the wife of appellant's cousin, Victor Hugo Rojas, testified that appellant visited their home in McAllen two or three times in a green Suburban shortly before July 17, 1997, the date of the kidnapping.

Juan Garcia, an acquaintance of the appellant, testified that appellant often stayed at a mobile home in the same area as his own and he had seen a dark Suburban parked near that mobile home.

Texas Ranger Israel Pacheco testified that, during his interview with appellant, appellant gave his address as the mobile home Garcia indicated.

3. The Crime

Eyewitnesses Pedro Magana and Jose Antonio Salinas, Hector's brother, testified: a green Suburban with dark windows arrived at Hector's store during the evening of July 17, 1997; a man got out and asked about a car that was for sale in front of the store; the man asked for Hector; after Hector identified himself, the man grabbed Hector and put a gun to his head; then, several men jumped out of the Suburban; and they pushed Hector into the Suburban. Jose Antonio further testified that the vehicle had Mexican license plates.

4. The Aftermath

Police officer Guadalupe Cavazos testified that a burned Suburban was found about a mile away from the store just hours after the kidnapping. Cavazos also testified that a can of charcoal lighter fluid, a pair of handcuffs and a beer can were found with the burned Suburban.

Lead detective Ralph Ramirez testified that he was notified of a body discovered wrapped in a blanket in Reynosa, Mexico on July 22, 1997. He further testified that the license plate found with the burned Suburban was traced by Mexican police and was found to be registered to a green Chevy Suburban.

Hector's wife testified that she was able to confirm the identity of the body found in Reynosa as her husband.

Fulgencio Salinas testified that he performs autopsies and reviewed the autopsy report done by Dr. Ruben Santos, who is now deceased. He testified that the autopsy report indicated: the body was badly decomposed; the man had been dead for four to five days; the most likely cause of death was asphyxiation; and there was evidence that a plastic bag had been placed over the head and held in place with duct tape.

Evidence technician Miguel Alcantar and latent print examiner Heriberto Vigil testified that they were able to identify the thumbprint from the body as belonging to Hector.

B. Accomplice Testimony

Jose Angel Wyant and Freddy Camacho, two of the many accomplices to the crime, testified at trial that appellant was involved. Each has been imprisoned for his part in this crime.

Wyant offered the following relevant testimony: one of the other accomplices called Hector shortly before the kidnapping to tell him to be outside so they could look at the car for sale in front of the store; later on, appellant was at the house in Mexico; appellant was one of three in the room with Hector and hit him; Hector was hit several times with fists and a handgun; as a result, Hector was bleeding; Hector's eyes were not visible; Hector couldn't move; appellant left; and another accomplice strangled Hector.

Accomplice Freddy Camacho testified: he was approached by Rojas, who was accompanied by appellant, about the kidnapping and they spoke for thirty minutes; he overheard a twenty-minute phone call a few hours before the kidnapping from Rojas to appellant in which arrangements were made; Rojas then called Hector and made plans to look at the car for sale in front of the store; appellant drove the green Suburban to the meeting place-Rojas's home, to Hector's store, and to the burn site in the hours before the kidnapping; after the kidnapping, appellant switched vehicles and got in a brown van with other accomplices to take Hector across the border; at the checkpoint, appellant told Hector not to scream or do anything out of the ordinary or else he would face the consequences; once at a house in Mexico, appellant and two others took Hector to the bedroom and tied him face down to the bed with an extension cord and bed sheets; all three were on top of Hector and hitting him; and during the beating appellant threatened Hector's son.

C. Epilogue

The search for other accomplices continues. Meanwhile, the federal trial, in which Hector was supposed to testify, ended in an acquittal for all seven defendants.

II. Elements of the Offenses

A person commits aggravated kidnapping by intentionally or knowingly abducting another with the intent to inflict bodily injury on that person. Tex. Pen. Code Ann. § 20.04(a)(4) (Vernon 2003). Abduction is a continuous and ongoing event, for which there is no time limit. Weaver v. State, 657 S.W.2d 148, 150 (Tex. Crim. App. 1983) (citingSanders v. State, 605 S.W.2d 612, 614 (Tex. Civ. App. 1980)).

The penal code section that defines capital murder directs readers to the code section regarding murder. Tex. Pen. Code Ann. §19.03 (Vernon 2003). That section provides, "A person commits [murder] if he . . . intentionally or knowingly causes the death of an individual." Id. § 19.02(b)(1). The capital murder section completes the definition of capital murder by adding, "and . . . the person intentionally commits murder in the course of committing . . . kidnapping." Id. § 19.03(a)(2).

III. Analysis

A. Territorial Jurisdiction

By his first point of error, appellant contends the State lacks jurisdiction to charge him with capital murder. We agree.

Section 1.04 of the penal code provides, "This state has jurisdiction over an offense that a person commits . . . if either the conduct or a result that is an element of the offense occurs inside this state." Tex. Pen. Code Ann. § 1.04(a)(1) (Vernon 2003). This Court has considered section 1.04 and determined that it gives the State of Texas jurisdiction over an offense if the offense or an element of the offense is committed within the state. See Salazar v. State, 711 S.W.2d 720, 724 (Tex. App.-Corpus Christi 1986, pet. ref'd).

Here, there is no evidence that either the offense of murder or any of its elements were committed in Texas. Not only did the torture and strangling (conduct), which caused the death, take place in Mexico, but the body (result) was found in Mexico, too. In other words, neither "the conduct or a result that is an element of [murder] occur[red] inside this state." Tex. Pen. Code Ann. § 1.04(a)(1) (Vernon 2003).

Because the penal code's capital murder provision explicitly directs us to its murder provision, we hold that the offense of murder or an element of murder (either the conduct or a result) must be committed within this state in order for Texas to have jurisdiction over the offense of capital murder.

Consequently, the State did not have jurisdiction over the offense of capital murder. Had an element, either the conduct or a result, of the offense of murder occurred in this state, then Texas would have jurisdiction over the offense of capital murder. However, that is not the case here. Appellant's first point of error is sustained. The remainder of the analysis will focus on the aggravated kidnapping conviction.

B. Accomplice Corroboration

By his third point of error, appellant contends the State failed to corroborate the testimony of accomplice witnesses. We disagree.

Article 38.14 of the code of criminal procedure provides, "[a] conviction cannot be had upon the testimony of . . . accomplice[s] unless corroborated by other evidence tending to connect the defendant with the offense committed; and the corroboration is not sufficient if it merely shows the commission of the offense." Tex Code Crim. Proc. Ann. art. 38.14 (Vernon 1979). To determine whether the accomplices' testimony is corroborated, we eliminate the accomplices' testimony and review the remaining evidence to determine whether it tends to connect appellant to the offense. Munoz v. State, 853 S.W.2d 558, 559 (Tex. Crim. App. 1993) (emphasis added). The corroborative evidence need not directly link appellant to the crime or be sufficient in itself to establish guilt. McDuff v. State, 939 S.W.2d 607, 612 (Tex. Crim. App. 1997). The corroborative evidence may only be circumstantial. Brown v. State, 672 S.W.2d 487, 488 (Tex. Crim. App. 1984).

When the testimony of the accomplices is eliminated from our consideration, the non-accomplice testimony outlined earlier demonstrates: (1) appellant was at the scene of the crime the day before asking about a car for sale in front of the store; (2) appellant had been seen driving a green Suburban shortly before the crime; (3) Hector was kidnapped by men who asked about the car for sale in front of the store; (4) the kidnappers drove a green Suburban with Mexican license plates; (5) a burned green Suburban with Mexican license plates was found near Hector's store a few hours after the kidnapping; and (6) handcuffs were found with the burned Suburban.

This non-accomplice testimony tends to connect appellant to the offense. Munoz, 853 S.W.2d 559. As such, the State did not fail to corroborate the accomplices' testimony. Appellant's third point of error is overruled.

C. Legal Sufficiency

By his second point of error, appellant contends the trial court erred by denying his motion for directed verdict because there is not legally sufficient evidence to prove aggravated kidnapping. We disagree.

The basis of appellant's motion was the State's alleged failure to corroborate the accomplices' testimony and otherwise provide sufficient evidence to prove aggravated kidnapping. Having concluded that the accomplices' testimony was corroborated, we now examine appellant's challenge to the legal sufficiency of the evidence as a whole.

For a legal sufficiency challenge, we review the evidence in a light most favorable to the verdict to determine whether any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. Jackson v. Virginia, 43 U.S. 307, 319 (1979); Johnson v. State, 23 S.W.3d 1, 7 (Tex. Crim. App. 2000); Rosillo v. State, 953 S.W.2d 808, 811 (Tex. App.-Corpus Christi 1997, pet. ref'd). As fact finder, the jury is the exclusive judge of the credibility of witnesses and the weight to be afforded their testimony. Chambers v. State, 805 S.W.2d 459, 461 (Tex. Crim. App. 1991). The jury is free to accept one version of the facts, reject another, or reject all or any of a witness's testimony. Penagraph v. State, 623 S.W.2d 341, 343 (Tex. Crim. App. 1981). Sufficiency of the evidence is measured by the hypothetically correct jury charge, which accurately sets out the law, is authorized by the indictment, and does not unnecessarily increase the State's burden of proof. Malik v. State, 953 S.W.2d 234, 240 (Tex. Crim. App. 1997); Cano v. State, 3 S.W.3d 99, 105 (Tex. App.-Corpus Christi 1999, pet. ref'd). In conducting this analysis, we may not re-weigh the evidence and substitute our judgment for that of the jury. King v. State, 29 S.W.3d 556, 562 (Tex. Crim App. 2000).

At trial, the State called two accomplices to testify as to appellant's involvement in the kidnapping. The testimony outlined earlier demonstrates that appellant was involved in: (1) the planning of the kidnapping in McAllen; (2) the kidnapping itself; (3) transporting Hector to a house in Mexico; and (4) torturing him there.

After measuring the legal sufficiency, we conclude the evidence adduced from the accomplices and others was sufficient to allow a jury to find the elements of aggravated kidnapping (intentional/knowing abduction, intent to inflict bodily injury) beyond a reasonable doubt. We hold that the evidence is legally sufficient to support appellant's conviction for aggravated kidnapping. The trial court did not err by denying appellant's motion for directed verdict. Appellant's second point of error is overruled.

D. The Rule

In his fourth point, appellant contends the trial court abused its discretion by exempting Texas Ranger Israel Pacheco from rule of evidence 614. ⁽¹⁾ We agree, but hold that the error is harmless.

"The purpose of placing witnesses under the sequestration rule . . . is to prevent the testimony of one witness from influencing the testimony of another." Bell v. State, 938 S.W.2d 35, 50 (Tex. Crim. App. 1996). The party seeking an exception under rule 614 has the burden of showing that one of the enumerated sections is met. Bath v. State, 951 S.W.2d 11, 23 (Tex. App.-Corpus Christi 1997, pet. ref'd). If the prosecution claims that the witness's presence is essential to the presentation of its cause (a section three exception), as is the situation here, a "showing" is required. Id. (quoting Barnhill v. State, 779 S.W.2d 890, 892-93 (Tex. App.-Corpus Christi 1989, no pet.)). "[A] conclusory explanation does not constitute the showing contemplated by [rule 614]." Hernandez v. State, 791 S.W.2d 301, 306 (Tex. App.-Corpus Christi 1990, pet. ref'd) (prosecutor's explanation that it would be "necessay and essential" for him to confer with requested witness during testimony is conclusory); see Barnhill, 779 S.W.2d at 892 (prosecutor's explanation that requested witness is a caseworker is not a showing). "It is within the trial court's discretion to decide if a requested exemption from . . . rule [614] is justified." Aguilar v. State, 739 S.W.2d 357, 358-59 (Tex. Crim. App. 1987); see Bell, 938 S.W.2d at 50.

After the jury had been selected, but prior to the first witness, the State requested an exception to rule 614 for Pacheco, so he could remain in the courtroom at counsel table to assist the State in presenting its case. In support of the request, the State said:

The evidence is going to show that federal agents from the DEA, the FBI, the McAllen police were involved, the Texas Rangers were involved in this case. Now, this is a fairly complicated case, a very complicated case, and for that reason we are requesting that you allow a witness to remain in the courtroom throughout the trial and his name being Israel Pacheco. He is from the Texas Rangers.

The defense objected and stated:

[Pacheco] is a very exculpatory witness to the Defense. To allow him to stay in the courtroom would . . . provide the State with the opportunity to educate Mr. Pacheco as to how we are going to proceed with our defense. They have invoked the rule and we will stand by it. . . . [Furthermore, Pacheco] is not the case agent.

The State responded by explaining that, "[Pacheco] brought the case to the District Attorney's office and conferred with the District Attorney's Office." The trial court then decided to allow the exception for Pacheco.

At that point, the trial court erred because the State's explanation was conclusory. The State merely informed the court that Pacheco was a Texas Ranger who brought the case to the prosecution and discussed it with them, which does not meet their burden to show that the exception to rule 614 was warranted. See Hernandez, 791 S.W.2d at 306; Barnhill, 779 S.W.2d at 892; see also Peters v. State, 997 S.W.2d 377, 385 (Tex. App.-Beaumont 1999, no pet.) ("The Rule contains no express exception for investigators."). Such an explanation is not a showing and lies in contrast to our holding in Bath, where we concluded that the State made a showing by explaining that: the witness in question "was involved with the investigation of [the] case since the date of the offense," "he was the lead investigator for the prosecution," he "helped coordinate with all law enforcement agencies," "he assisted the prosecution in preparing [the] case for trial," and "his assistance and expertise would be needed with numerous items of evidence to be presented at trial." Bath, 951 S.W.2d at 23.

After the first witness testified, the defense renewed its objection to the presence of Pacheco. The State then responded:

[We have already] represented to this Court that this case is a very complex case and that we needed Mr. Pacheco in here to sort out all these details. There were hundreds of people that were interviewed in the process of investigating this case. Certainly we don't want to bring all these witnesses in here. We are trying to narrow it down to just the ones that are relevant to this case, and his presence is essential.

The trial court concluded, "The State has carried its burden. They have shown that this is a complex case so [Pacheco] will be allowed to stay."

Again, the trial court missed its opportunity to properly exclude Pacheco from the courtroom. The court mischaracterized the burden of the party requesting an exception to rule 614 for an allegedly essential witness by finding "that this is a complex case so [Pacheco] will be allowed to stay." When deciding whether to allow an exception for a witness who is allegedly essential to the presentation of the requesting party's cause, the court cannot be satisfied if the party shows that the case is complex. In such a situation, the court must require the requesting party to show that the witness is essential. Bath, 951 S.W.2d at 23; Hernandez, 791 S.W.2d at 306; Barnhill, 779 S.W.2d at 892. Whether or not the case is complex makes no difference, unless the party requesting the exception for the allegedly essential witness shows that the witness' necessity relates to the case's complexity.

In addition, while the State's new justification for the exception, that Pacheco was needed to sort out details, was less conclusory than the earlier justification, it was conclusory nonetheless. See Peters, 997 S.W.2d at 385 (requesting party's explanation that an investigator is very knowledgeable of witnesses is not a showing). It is not clear to us that Pacheco's presence in the courtroom was necessary in order for him to sort out details. The State's vague explanation is not in line with the showing made in Bath, where the State specifically said its witness's presence was essential because "his assistance and expertise would be needed with numerous items of evidence to be presented." Bath, 951 S.W.2d at 23. Without a more explicit explanation, sorting out details appears to be a task that can be performed before witnesses are called, making Pacheco's presence in the courtroom unnecessary. In contrast, a witness, like the one exempted from rule 614 in Bath, whose knowledge and help is necessary to present items of evidence is actually needed in the courtroom with the evidence during other witnesses' testimony. Id. In this case, the State's entire support for their request amounts to nothing more than a conclusory explanation.

In essence, the trial court overruled the appellant's second objection to Pacheco's presence in the courtroom without requiring a showing by the State. Because no showing was made, the trial court abused its discretion by allowing the exception to rule 614 for Pacheco, as a witness whose presence was essential to the State's presentation. Moore v. State, 882 S.W.2d 844, 848 (Tex. Crim. App. 1994). We now examine whether the error is reversible. Hernandez, 791 S.W.2d at 306; Barnhill, 779 S.W.2d at 893. "We need not reverse if we determine that the error did not affect appellant's substantial rights." Ladd v. State, 3 S.W.3d 547, 566 (Tex. Crim. App. 1999) (citing Tex. R. App. P. 44.2(b)). "In other words, we need not reverse if, after examining the record as a whole, we have fair assurance that the error did not influence the jury's deliberations to appellant's detriment or had but a slight effect." Id.

Two relevant criteria in assessing this type of error are: (1) did the exempted witness actually hear the testimony of the other witnesses; and (2) did the exempted witness's testimony contradict the testimony of a witness he actually heard from the opposing side or corroborate the testimony of another witness he actually heard from the same side on an issue of fact bearing upon the issue of guilt or innocence. Guerra v. State, 771 S.W.2d 453, 475-76 (Tex. Crim. App. 1988); ⁽²⁾ see Ladd, 3 S.W.2d at 566.

Since Pacheco was allowed to remain in the courtroom, the first criteria has been met, and we proceed to the second. Because the defense called no witnesses, we will only examine whether or not Pacheco's testimony corroborated the testimony of the witnesses he heard.

In general, Pacheco's testimony explained the investigative process and his involvement in the investigation. Pacheco's testimony coincided with that of DEA agent Tony Dominguez and FBI agent Scott Sledd in that each testified that, based on their knowledge, Hector was not in the federal witness protection program. Pacheco's testimony also coincided with Sledd's with respect to how Pacheco became involved in the investigation. In addition, Pacheco's testimony coincided with accomplice Francisco Castaneda. When describing the events leading to the crime, Castaneda said, "At [the] trailer park . . . Hugo picked up the Suburban and we left in the Suburban." Later on in the trial, Pacheco testified that during the investigation Castaneda took him to a trailer park and said, "This is the mobile home where we picked up the Suburban." Our review of the record reveals that, apart from these instances, Pacheco testified to matters not addressed by the other witnesses. Barnhill, 779 S.W.2d at 893. Thus, we conclude that minor portions of Pacheco's testimony meet the second criteria of Guerra. Id.

"Nonetheless, we do not believe the error constitutes reversible error." Id. Pacheco's testimony concerned no issue of fact bearing upon the issue of appellant's guilt and explained the investigative process. See Guerra, 771 S.W.2d at 475-76; Barnhill, 779 S.W.2d at 893. His testimony that duplicates other witnesses' testimony could be characterized as background information that contains nothing to incriminate appellant. Barnhill, 779 S.W.2d at 893. While the trial court abused its discretion in exempting Pacheco from rule 614 without requiring a showing by the State, we hold that there is no reversible error because of the harmless nature of the evidence that was improperly introduced through Pacheco's testimony. Id. "On this record, we have fair assurance that the trial court's error did not influence the jury's deliberations to appellant's detriment or had but a slight effect." Ladd, 3 S.W.3d at 566. Appellant's fourth point of error is overruled.

E. Hearsay

By his sixth point of error, appellant contends the trial court improperly allowed the State to introduce hearsay testimony from Pacheco, resulting in reversible error. We disagree.

Hearsay is defined as a statement, other than one made by the declarant while testifying at the trial, offered in evidence to prove the truth of the matter asserted. Tex. R. Evid. 801(d). The admissibility of hearsay evidence is a question for the trial court, reviewable under an abuse of discretion standard. See Coffin v. State, 885 S.W.2d 140, 149 (Tex. Crim. App. 1994).

Before the prosecution began its direct examination of Pacheco a hearing was held outside the presence of the jury. Defense counsel objected on the basis that "anything [Pacheco] would have to offer . . . other than what he actually did . . . would be hearsay." The trial court overruled the objection. Counsel then objected to the introduction of Pacheco's report on the basis of hearsay, and the court sustained the objection. After the jury was called, counsel objected when Pacheco was asked about specific statements made by other agents on the case. ⁽³⁾ In response to these objections, the State explained the testimony was not being offered for proof of the truth of the matter asserted. Rather, the State argued, the testimony was offered to give background information and help the jury understand the investigation. The court agreed with the State and overruled both objections.

After reviewing the record, it appears neither statement was made in order to prove the truth of the matter asserted. The purpose of Pacheco's answers was to explain the investigative procedures followed in this case. Whether or not Pacheco was actually called or advised by agents does not depend on the truth of what these agents said. The testimony of which appellant objects does not meet the definition of hearsay. Tex. R. Evid. 801(d). The trial court did not abuse its discretion by overruling appellant's objections. Appellant's sixth point of error is overruled.

F. Custodial Interrogation

In his fifth and seventh points, appellant contends his interview with investigators, before he was charged, was a custodial interrogation. As a result of the alleged custodial interrogation, appellant argues that his privilege against self-incrimination ⁽⁴⁾ and his due process rights ⁽⁵⁾ were violated. We disagree.

The initial determination of custody depends on the objective circumstances of the interrogation, not on the subjective views of the officer or the person being questioned. Stansbury v. California, 511 U.S. 318, 323 (1994). Here, Pacheco testified: (1) appellant was a suspect but was not under arrest at the interview; (2) arrangements were made, at appellant's request, for him to make a phone call during the interview; (3) no statement was taken during the interview; and (4) appellant left the interview freely and said he would call the officers the next day about his decision to cooperate or not.

In light of the above circumstances, we conclude the interview was not a custodial interrogation. Appellant's fifth and seventh points of error cannot stand because his due process and self-incrimination arguments depend upon a conclusion that the interview was a custodial interrogation. We overrule both points of error.

IV. Conclusion

Because we have sustained appellant's first point of error, we reverse appellant's conviction for capital murder and render an acquittal. The remaining points are all overruled. Appellant's conviction and sentence for aggravated kidnapping will stand. We AFFIRM the judgment of the trial court in part and REVERSE AND RENDER in part.

LINDA REYNA YAÑEZ

Justice

Do not publish. Tex. R. App. P. 47.2(b).

Opinion delivered and filed this the

14^th day of August, 2003.

1. Rule of evidence 614 provides, "At the request of a party the court shall order witnesses excluded so that they cannot hear the testimony of other witnesses." Tex. R. Evid. 614(3). However, the rule "does not authorize exclusion of: a person whose presence is shown by a party to be essential to the presentation of the party's cause." Id. Practitioners commonly use the phrase "invoking the rule" when they request that the trial court exclude the witnesses during testimony.

2. We recognize Aguilar is more on point than Guerra, in that the former addresses how to review the trial court's decision to allow an exception to rule 614, as is the case here, and the latter addresses how to review the trial court's mistake of allowing a violation of rule 614 (i.e., when rule 614 is invoked without exception, yet a witness remains in the courtroom afterwards and later testifies). Guerra v. State, 771 S.W.2d 453, 473-76 (Tex. Crim. App. 1988); Aguilar v. State, 739 S.W.2d 357, 357-60 (Tex. Crim. App. 1987). Nevertheless, we will apply the harm analysis set out in Guerra, because it updates the same harm analysis used in Aguilar. Guerra, 771 S.W.2d at 474-75; Aguilar, 739 S.W.2d at 359-60. However, we will not apply the additional two-step approach from Guerra to determine what kind of witness was involved, 771 S.W.2d at 476, as it is appropriate when analyzing harm resulting from the trial court's allowing a violation of rule 614, not when analyzing a trial court's decision to allow an exception to rule 614.

3. The following answers followed appellant's respective objections:

Pacheco: On July 24th of '97, Cumendante Oscar Alaniz had called me on the telephone saying he was trying to get a hold of the FBI and he had information about the Suburban to give them. I went ahead and took the information and called the FBI and gave them that information. . . .

On August 4th, '97, I received the results of an interview conducted by the FBI and also DEA Agent Tony Dominguez and McAllen PD investigator Ralph Ramirez of one of the suspects, Victor Hugo Rojas, in Reynosa.

4. After being taken into custody by law enforcement officers, a person must be warned that any statement made may be used as evidence against the person. See Stansbury v. California, 511 U.S. 318, 323 (1994) (citing Miranda v. Arizona, 384 U.S. 436, 444 (1966)) (emphasis added).

5. Appellant alleges several violations of his due process rights under article 38.22 of the code of criminal procedure. This article outlines when statements from accused persons may be used. Tex. Crim. Proc. Code Ann. § 38.22 (Vernon 1979 and Supp. 2003). The article requires warning to be given and tape recording made prior to taking a defendant's statement. Tex. Code Crim. Proc. Ann. § 38.22(2-3) (Vernon 1979 and Supp. 2003). However, it only applies to statements obtained as result of custodial interrogation. Rathmell v. State, 653 S.W.2d 498, 501 (Tex. App.-Corpus Christi 1983, pet. ref'd) (emphasis added).