Marcos Daniel Jimenez v. State

Opinion issued October 4, 2016
In The
Court of Appeals
For The
First District of Texas
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NOS. 01-15-00501-CR
01-15-00506-CR
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MARCOS DANIEL JIMENEZ, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 10th District Court
Galveston County, Texas
Trial Court Case Nos. 13CR1173 & 13CR1517
MEMORANDUM OPINION
A jury convicted appellant, Marcos Daniel Jimenez, of two charges of
aggravated robbery, each enhanced with one prior felony, and assessed his
punishment at 25 years’ confinement on each conviction, which the trial court
ordered to run concurrently. On appeal, appellant contends: 1) the evidence is
legally insufficient to support the conviction; 2) the trial court’s findings of fact
and conclusions of law are unconstitutional and legally insufficient to support
appellant’s conviction; and 3) the trial court erred in overruling appellant’s motion
to suppress his confession. We affirm.
BACKGROUND
I. The Robbery
On April 5, 2013, friends Angela Mendoza and Christopher Burnett met at a
carwash in La Marque, Texas around 11:00 p.m. to talk and catch up. Mendoza
was driving a green Chevrolet Avalanche and Burnett was driving a white
Chevrolet Malibu. Once they both arrived at the car wash, Mendoza got out of her
Avalanche and into Burnett’s Malibu. Mendoza sat in the passenger seat while
Burnett was in the driver’s seat.
After about ten minutes, a gunshot was fired at the car’s back window and at
least two men approached the car. The first man, while pointing a pistol at
Mendoza’s face, told her to get out of the car and asked for her money. After
Mendoza complied, he hit her in the mouth with the pistol. Meanwhile, the second
man told Burnett to get out of the car, searched his pockets, and took around
$1,000 and Burnett’s cell phone. After the robbers threatened to shoot Mendoza
and Burnett, the robbers told them to leave. The first man drove off in Burnett’s
Malibu and the second man drove off in Mendoza’s Avalanche.
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Mendoza and Burnett ran away from the car wash towards a convenience
store. As they ran, a passing police car turned on to the street and Burnett got his
attention. Burnett told the officer that he and Mendoza had been robbed. Mendoza
was crying and her lip was split and bleeding. Two other officers arrived on the
scene and a bullet shell casing was recovered and recorded as evidence. Both
vehicles were registered as stolen the case was assigned to Detective S. Sanders
from the Auto Crimes Task Force.
II. The Investigation
During midnight patrol on April 7th, Officer D. Heckard saw a green Chevy
Avalanche that fit the description of Mendoza’s stolen vehicle. After alerting
dispatch and confirming the license plate number matched, Officer Heckard
initiated a traffic stop. The driver was identified as Andrew Madria. Madria was
taken into custody and transported to jail. The next day, Detective Sanders went to
the Texas City Police Department to interview Madria. After the interview and
based on Madria’s information, Detective Sanders began searching for one black
male and one Hispanic male believed to be involved in the robbery.
The next day, Detective Sanders interviewed Madria a second time. Based
on information gathered from this interview, Detective Sanders went to the
EconoLodge hotel in Texas City in pursuit of the Hispanic male Madria had
described and a female, Latrice Beck. After being unable to speak with the
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manager, Detective Sanders returned to the EconoLodge the next day and watched
surveillance video for Saturday, April 6th. On the video, Detective Sanders saw a
Hispanic male and Latrice Beck go into and out of a motel room. Detective
Sanders requested and obtained the registration information for the room and
learned it was registered to appellant. Because appellant matched all Madria’s
descriptions, she requested a copy of the video surveillance and set up a photo
lineup array with appellant’s picture included. Detective Sanders showed the photo
array to Mendoza and Burnett, but they were unable to identify appellant.
Appellant had previously filed an assault report with the La Marque Police
Department, and Detective Sanders used the information he had provided to
contact him. Sanders told appellant that she wanted to meet with him about the
assault report, and he agreed to meet her at a fast food restaurant near the police
department. Appellant and Detective Sanders met at the fast food restaurant, and
Detective Sanders asked if they could move their conversation to the police
department. Appellant agreed and followed Detective Sanders in his car to the
police department. Once inside, Detective Sanders told appellant she wanted to
speak with him about an aggravated robbery that occurred on April 5th. Appellant
agreed to speak with Detective Sanders and they went into the interview room.
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In the interview, appellant implicated himself in the armed robbery that
occurred on April 5th. After the interview, Detective Sanders explained what
would happen next, and appellant left the station.
Appellant was arrested on April 30th and indicted along with two others on
two counts of aggravated robbery. Appellant filed a motion to suppress his
statement to Detective Sanders, alleging that it was involuntarily made.
III. Motion to Suppress Hearing
At the hearing on appellant’s motion to suppress, Detective Sanders testified
that at the police station, she told appellant her real reason for contacting him was
not the assault report he filed, but the aggravated robbery that occurred on April
5th. She testified that that she told appellant she had spoken with Madria and had
seen appellant on video surveillance footage at the EconoLodge. Appellant agreed
to give a voluntary statement if Detective Sanders did not tell his fiancé that he was
at the EconoLodge with another woman. Detective Sanders testified that she
agreed because she had no reason to contact appellant’s fiancé and tell her that
information for the investigation. Officer Sanders also testified that she read
appellant the waiver of rights, gave him a second copy to read along, and that he
signed the waiver. In the waiver, appellant was informed that he had the right to
remain silent, and that if he decided to answer questions he still had the right to
stop answering questions at any time. In the signed waiver, appellant stated:
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I have read this statement of my rights and I understand what my
rights are. I am willing to make a statement and answer questions. I
do not want a lawyer. I understand and know what I am doing. No
promises or threats have been made to me and no pressure or coercion
of any kind has been used against me.
Officer Sanders further testified that she told appellant she would tell the
District Attorney’s office that appellant cooperated, but she acknowledged that she
had no authority to make any deals or promises with him.
Detective Sanders also stated that appellant was not in custody, was free to
go at any time, and, in fact, was permitted to leave the police department in his
own vehicle. Detective Sanders denied telling appellant she would arrest
appellant’s girlfriend, Latrice Beck, as an accessary if he did not give Detective
Sanders a statement. She also denied telling appellant Beck’s children could be
taken from her. Detective Sanders stated that appellant did not appear under the
influence of drugs at the time of the interview. When asked by appellant’s counsel,
Detective Sanders stated that she did not recall appellant refusing to talk at first or
her telling appellant that he would not have another chance to talk. Detective
Sanders also testified that she asked appellant to be honest and not lie, which was
not a demand but a “personal preference.” Counsel for appellant did not make any
arguments as to why appellant’s statement was involuntary. The trial court denied
the motion to suppress.
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IV. Trial
At trial, Burnett described the man who told him to get out of his car and
took his money and cell phone as a Hispanic male with a facial tattoo. Mendez
also identified that person as a Hispanic male with a teardrop tattoo by his eye, a
neck tattoo, and a shaved head. Detective Sanders testified that the Hispanic male
described to her by Madria, who was said to be involved in the aggravated robbery,
had several tattoos, possibly including a teardrop tattoo, near his eye. She also
testified that appellant met the description Madria gave her, which is why she
contacted him after spotting him on surveillance tape at the EconoLodge.
V. Verdict and Judgment
In the jury charge, the jury was given instructions on aggravated robbery and
also the lesser offenses of robbery and theft from a person. The jury was also
instructed the following about appellant’s statement at the police station:
You are instructed that unless you believe from the evidence beyond a
reasonable doubt that the alleged confession or statement introduced
into evidence was freely and voluntarily made by the defendant
without compulsion or persuasion, or if you have a reasonable doubt
thereof, you shall not consider such alleged statement or confession
for any purpose nor any evidence obtained as a result thereof.
The jury found appellant guilty of aggravated robbery on each charge and
assessed punishment at 25 years’ confinement and a $4,000 fine for each
conviction.
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VI. Findings of Fact and Conclusions of Law
Appellant timely appealed, and this Court abated the appeal for the trial
court to enter written findings of fact and conclusions of law regarding the motion
to suppress appellant’s statements as involuntary. The trial court made the
following findings:
Findings of Fact
1. Defendant was charged in this case with Aggravated Robbery.
2. Prior to being arrested for that charge, Defendant was interviewed by
Detective Sabrina Sanders of La Marque Police Department.
3. Defendant’s name was given to Detective Sanders by a co-defendant,
Andrew Madria.
4. Defendant agreed to speak with Detective Sanders and gave a video
statement.
5. Defendant signed a waiver of rights prior to giving his statement, after being
instructed on his “Miranda” rights.
6. Defendant’s statement implicated him in the aggravated robbery.
7. Defendant was not under arrest or in custody when he gave the statement.
8. Detective Sanders told Defendant she would tell the District Attorney’s
office that he had cooperated.
9. At the hearing on Defendant’s Motion to Suppress, his counsel questioned
Detective Sanders about whether she had threatened to have his girlfriend
arrested or had threatened to have her children taken from her.
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10. Detective Sanders denied making both of those threats.
11. In his closing argument at the Motion to Suppress hearing, counsel for
Defendant did not argue the confession was not given freely and voluntarily.
12. The Court denied the Motion to Suppress, finding the statement had been
given freely and voluntarily.
13. Defendant did not testify at trial.
14. The Charge of the Court instructed the jury it should not consider the
confession contained within the statement unless it found beyond a
reasonable doubt that the statement was given freely and voluntarily.
15. Defendant was convicted by the jury, and subsequently sentenced to 25
years in the Texas Department of Criminal Justice.
Conclusions of Law
1. The Trial Court found the statement by Defendant to have been given freely
and voluntarily.
2. The Trial Court instructed the jury not to consider the statement unless it
found beyond a reasonable doubt the statement had been given freely and
voluntarily.
3. Defendant was convicted of the offense of aggravated robbery, therefore, the
jury found the statement had been given freely and voluntarily.
Appellant continues his appeal, now with a complete record, including the
findings of fact and conclusions of law. Appellant was also permitted to rebrief his
case in light of the trial court’s findings and conclusions.
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ISSUES ON APPEAL
Appellant raises three main issues in his amended brief: 1) the evidence is
legally insufficient to support the conviction; 2) the findings of fact and
conclusions of law were procedurally and constitutionally inadequate; and 3) the
trial court erred in denying appellant’s motion to suppress.
We need not address appellant’s additional issue that the trial court failed to
make findings of fact and conclusions of law regarding the voluntariness of
appellant’s confession because this Court abated the initial appeal to the trial court
to make the proper findings. Therefore, we will first address appellant’s challenge
to the sufficiency of evidence.
I. The Evidence is Legally Sufficient
A. Standard of Review
Based on the premise that appellant’s confession should have been
suppressed, appellant argues that the evidence is legally insufficient to find him
guilty of aggravated robbery beyond a reasonable doubt. In determining whether
the evidence is legally sufficient to support a conviction, a reviewing court must
consider all of the evidence in the light most favorable to the verdict and determine
whether, based on that evidence and reasonable inferences therefrom, a rational
fact finder could have found the essential elements of the crime beyond a
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reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 318–19 (1979); Hooper v.
State, 214 S.W.3d 9, 13 (Tex. Crim. App. 2007). A confession admitted into
evidence will be considered along with all other evidence, even if it was
improperly admitted. See Moff v. State, 131 S.W.3d 485, 489 (Tex. Crim. App.
2004) (“[A]n appellate court ‘must consider all evidence which the jury was
permitted, whether rightly or wrongly, to consider.’”) (quoting Thomas v. State,
753 S.W.2d 688, 695 (Tex. Crim. App. 1988)); see also Howley v. State, 943
S.W.2d 152, 155 (Tex. App.—Houston [1st Dist.] 1997, no pet.) (“In [reviewing
legal sufficiency], we consider all of the evidence which was before the jury—
whether correctly or incorrectly admitted.”). The jury is the sole judge of the facts,
witness credibility, and the weight to be given their testimony. Penagraph v. State,
623 S.W.2d 341, 343 (Tex. Crim. App. 1981).
B. Analysis
A person commits aggravated robbery if, during the course of a robbery, the
person uses or exhibits a deadly weapon. TEX. PENAL CODE ANN. § 29.03 (a)(2)
(West 2011). Appellant argued at trial that the State failed to prove beyond a
reasonable doubt that it was appellant who participated in the aggravated robbery.
Appellant argues that without the confession, the only evidence supporting his
conviction is a vague physical description. Even if, as appellant contends, his
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confession was erroneously admitted, this Court must consider it in reviewing the
legal sufficiency of the evidence. See Moff, 131 S.W.3d at 489.
Additionally, the State produced more evidence than just the confession and
vague physical descriptions, as asserted by appellant. The jury heard Mendoza
describe the person who threatened Burnett with a gun as a Hispanic male with a
teardrop tattoo near his eye, a neck tattoo, and a shaved head. Burnett testified that
it was a Hispanic male with a facial tattoo who had a gun and told him to get out of
the car. Sanders interviewed Madria, who was found driving Mendoza’s stolen car,
and Madria described a person involved in the aggravated robbery as a Hispanic
male with a teardrop tattoo by his eye who could be found at a nearby
EconoLodge. Detective Sanders testified that video footage from the EconoLodge
corroborated Madria’s statements, and showed appellant had stayed at the
EconoLodge the day after the robbery.
Furthermore, circumstantial evidence is as probative as direct evidence in
establishing the guilt of an actor and alone can be sufficient to establish guilt.
Hooper, 214 S.W.3d at 13. Given the evidence of appellant’s confession, his
connection to the stolen vehicle, his similar appearance to the complainants’
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descriptions, as well as Madrias’s description, a rational jury could have concluded
that appellant participated in the aggravated robbery. 1
II. Findings of Fact and Conclusions of Law after Abatement Are Proper
Appellant argues generally that the subsequent findings of fact and
conclusions of law made by the trial court after this Court abated the case violate
his due process rights. It is a long established Federal law principle that a criminal
defendant has a constitutional right to object to the use of their confession “and to
have a fair hearing and a reliable determination on the issue of voluntariness . . .
uninfluenced by the truth or falsity of the confession.” Jackson v. Denno, 378
U.S. 368, 377 (1964). In Texas, this is codified in article 38.22 of the Texas Code
of Criminal Procedure, which requires that when a question is raised as to the
voluntariness of an accused’s statement, the trial court must make an independent
finding, in the absence of the jury, as to whether the statement was made
voluntarily. TEX. CODE CRIM. PROC. ANN. art. 38.22 (West Supp. 2016). The court
must enter a written order stating its conclusion, including “the specific finding of
facts upon which the conclusion was based.” See id.; Vasquez v. State, 411 S.W.3d
1
Appellant argues in one sentence that without findings of fact and conclusions of
law, the jury instructions regarding appellant’s voluntary statement mirrored the
“New York” procedure which was overruled in Jackson v. Denno, 378 U.S. 368,
377 (1964). However, because appellant did have a hearing on voluntariness and
subsequent findings of fact and conclusions of law were made, it was not error to
instruct the jury to consider appellant’s statement just like any other piece of
evidence. See Denno, 378 U.S. at 394 (holding a new trial not constitutionally
necessary when confession is determined to be voluntary by trial court, properly
considered by jury, and found voluntary by jury)
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918, 920 (Tex. Crim. App. 2013) (holding that written findings are required in all
cases concerning voluntariness).
If no written findings are made by the trial court and the motion to suppress
is challenged on appeal, the court of appeals must abate the appeal to the trial court
to make the appropriate written findings of fact and conclusions of law. Vasquez,
411 S.W.3d at 920. This is required because appellate courts need a basis upon
which to review the trial court’s application of law to facts. See State v. Cullen,
195 S.W.3d 696, 698–99 (Tex. Crim. App. 2006). Without findings of fact and
conclusions of law, appellate courts are “left in the undesirable position of having
to make assumptions about the reasons for the trial court’s decision.” Id. at 698.
Appellant argues that abating the appeal was unfair, did not satisfy Jackson
v. Denno, and that the only “remedy” is an acquittal. Appellant urges that the trial
court would be basing the findings of fact and conclusions of law on a “cold”
record and that it is impossible to make accurate findings in retrospect. Jackson v.
Denno, however, addresses these issues. See generally Denno, 378 U.S. at 394–
95. The Court in Jackson v. Denno held that a lower court could remedy an error
even after the guilty verdict was rendered by holding a hearing to determine the
specific facts and conclusions of law regarding voluntariness of the defendant’s
confession. Denno, 378 U.S. at 392–95. Furthermore, the Texas Court of
Criminal Appeals has long required trial courts to make post-verdict findings of
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facts and conclusions of law regarding voluntariness when the record on appeal did
not contain them. See McKittrick v. State, 535 S.W.2d 873, 876 (Tex. Crim. App.
1976) (holding cases on appeal with fact issues concerning voluntariness of a
confession should be abated to enable the trial court to make fact findings in
writing); see also Dykes v. State, 649 S.W.2d 633, 636 (Tex. Crim. App. 1983)
(“We abate the appeal and direct the trial judge to reduce to writing his findings of
fact and conclusions of law on the disputed fact issues surrounding the taking of
appellant’s confession.”).
In this case, this Court properly abated the appeal to trial court. The same
trial judge that ruled on the motion to suppress initially made the necessary
findings of fact and conclusions of law. Thus, these findings reflect the trial court’s
basis for denying the motion and the problem of a “cold” record is not relevant
here. See Garcia v. State, 15 S.W.3d 533, 535-36 (Tex. Crim. App. 2000)
(holding there is no issue of a “cold” record if the appeal is abated to the same trial
judge that made the initial findings). The proper procedure was followed in this
case and did not violate appellant’s Due Process rights.
III. The Motion to Suppress was Properly Denied
A. Standard of Review
Appellant also argues that even with the findings of facts and conclusions of
law, his statement to Officer Sanders should have been suppressed for the
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procedural reasons above. We review the trial court’s ruling on a motion to
suppress evidence for abuse of discretion, using a bifurcated standard. See
Guzman v. State, 955 S.W.2d 85, 88–89 (Tex. Crim. App. 1997). We give almost
total deference to the trial court’s determination of facts, while we conduct a de
novo review of the trial court’s application of the law to those facts. Foster v.
State, 101 S.W.3d 490, 495 (Tex. App.—Houston [1st Dist.] 2002, no pet.). At a
suppression hearing, the trial court is the sole and exclusive trier of fact and judge
of the credibility of witnesses, Maxwell v. State, 73 S.W.3d 278, 281 (Tex. Crim.
App. 2002), and may choose to believe or to disbelieve all or any part of a
witness’s testimony. See State v. Ross, 32 S.W.3d 853, 855 (Tex. Crim. App.
2000). When we review a ruling on the trial court’s application of law to the facts,
we view the evidence in the light that most favors the ruling. Guzman, 955 S.W.2d
at 89; Weaver v. State, 265 S.W.3d 523, 532 (Tex. App.—Houston [1st Dist.]
2008, pet. ref’d).
A statement of an accused may be used in evidence if it appears that the
statement was “freely and voluntarily made without compulsion or persuasion.”
TEX. CODE CRIM. PROC. ANN. art. 38.21 (West 2005). A confession is
involuntarily made when it was “unlikely to have been the product of a rational
intellect and a free will.” Smith v. State, 779 S.W.2d 417, 427 (Tex. Crim. App.
1989). To determine voluntariness, the court must “examine the totality of the
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circumstances surrounding the acquisition of the statement.” Creager v. State, 952
S.W.2d 852, 856 (Tex. Crim. App. 1997). The burden of proof is on the State to
demonstrate the defendant waived their rights and made a voluntary statement.
Howard v. State, 482 S.W.3d 249, 255 (Tex. App.—Houston [1st Dist.] 2015, pet.
ref’d).
B. Finding of facts and conclusions of law were legally sufficient to find
appellant’s confession was voluntary
Appellant’s brief does not argue that there is evidence of circumstances that
would render appellant’s confession involuntary. Rather, appellant continues to
argue that certain findings of fact are insufficient evidence, conclusory, and violate
Due Process. The procedural issues appellant raises are addressed above, but even
if the specific findings appellant argues were inadequate by themselves, the
evidence taken as a whole would still be sufficient to find appellant’s confession
was voluntary.
Courts look at the totality of the circumstances to determine voluntariness
and when that determination revolves around facts and credibility, we give the
court almost total deference. Busby v. State, No. 01-04-01210-CR, 2008 WL
659653, at *4 (Tex. App.—Houston [1st Dist.] Mar. 13, 2008, pet. ref’d) (not
designated for publication). In this case, the same trial court that initially denied
the motion to suppress found that appellant agreed to speak to Detective Sanders,
that he signed a waiver of his rights, and that he was not under arrest or in custody
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when he gave his statement. In the waiver of rights, appellant acknowledged that
he knew what he was doing and that no threats or promises had been made to
coerce a statement. The trial court also found that Detective Sanders told appellant
she would tell the District Attorney appellant cooperated, and that Detective
Sanders denied threatening to have appellant’s girlfriend arrested or take away her
children. Given that the trial court is free to believe or disbelieve any part of
witness testimony, State v. Maldonado, 176 S.W.3d 419, 421 (Tex. App.—
Houston [1st Dist.] 2004, no pet.), there is sufficient evidence to support the trial
court’s conclusion that appellant’s confession was voluntarily made and did not
violate his due process rights.
C. It was proper for the trial court to review the confession video
Similarly, appellant argues that the trial court erred in watching appellant’s
videotaped confession during the hearing on voluntariness. Appellant argues that
“ideally” the court in a pretrial hearing should not hear the specific content of a
confession when determining voluntariness because it would contaminate the
determination. However, this proposed procedure has no support in law. In fact,
videotaped confessions help the trial judge assess the credibility of the witnesses at
the hearing and compare historical facts to what the trial judge observes in the
video. See Leza v. State, 351 S.W.3d 344, 352 (Tex. Crim. App. 2011) (reasoning
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that by watching appellant’s videotaped statements, the trial judge could measure
testimony regarding voluntariness of defendant’s waiver himself).
D. The confession video was properly admitted
Appellant also suggests that the trial court erred in admitting appellant’s
statements to the jury because, at the time of the statement, he had recently been
treated for a drug overdose and was on bipolar medications.2 Because information
about appellant’s bipolar medication was not introduced until after the jury verdict,
during the punishment phase of the trial, we will not consider this issue on appeal.
See Jones v. State, 944 S.W.2d 642, 650-51 (Tex. Crim. App. 1996) (“We may
only review evidence that was before the trial judge when he was asked to render a
decision on this matter.”).
Thus, the only possible link between appellant’s statement and drug
intoxication came during the hearing on the motion to suppress in the following
exchange between appellant’s counsel and Detective Sanders:
Q. Now, when you were talking to him, you knew he had been treated
for drug overdose; isn’t that correct?
A. During the interview, yes, which occurred approximately three
days prior to the robbery.
2
Appellant’s amended brief after the trial court made findings of fact and
conclusions of law still argued that appellant’s statements were wrongfully
admitted to the jury because there were no specific findings of fact on whether the
statement was made voluntarily. Because this was remedied, we do not address
that argument here.
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Q. You realized he was under the influence at the time you
interviewed him; isn’t that correct?
A. No, sir.
Additionally, the trial judge was able to observe appellant’s demeanor
during the taped interview and made no finding of intoxication. Therefore, the trial
court did not err in allowing the jury to watch appellant’s statements for the same
aforementioned reasons the findings of fact and conclusions of law were found to
be sufficient.
CONCLUSION
We overrule issues one through three.
We affirm the trial court’s judgment.
Sherry Radack
Chief Justice
Panel consists of Chief Justice Radack and Justices Higley and Huddle.
Do not publish. TEX. R. APP. P. 47.2(b).
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