Judist Lamond Broussard v. State

ACCEPTED
01-15-00074-CR
FIRST COURT OF APPEALS
HOUSTON, TEXAS
10/30/2015 4:33:03 PM
CHRISTOPHER PRINE
CLERK
No. 01-15-00074-CR
In the FILED IN
Court of Appeals 1st COURT OF APPEALS
HOUSTON, TEXAS
For the 10/30/2015 4:33:03 PM
First District of Texas CHRISTOPHER A. PRINE
At Houston Clerk
♦
No. 1256403
In the 337th District Court
Of Harris County, Texas
♦
Judist Lamond Broussard
Appellant
v.
The State of Texas
Appellee
♦
State’s Appellate Brief
♦
Clinton A. Morgan Devon Anderson
Assistant District Attorney District Attorney
Harris County, Texas Harris County, Texas
State Bar No. 24071454
morgan_clinton@dao.hctx.net Sunni Mitchell
Donna Logan
1201 Franklin St., Suite 600 Assistant District Attorneys
Houston, Texas 77002 Harris County, Texas
Telephone: 713.274.5826
Oral Argument Not Requested
Statement Regarding Oral Argument
The appellant requested oral argument, though he gave no
particular reason why. The State believes the briefs in this case
adequately apprise this Court of the issues and the law, and any
marginal benefit from oral argument does not justify the considerable
amount of time that preparation for oral argument requires of the
parties and the Court. Therefore, the State does not request oral
argument.
i
Identification of the Parties
Counsel for the State:
Devon Anderson
 District Attorney of Harris County
Sunni Mitchell & Donna Logan
— Assistant District Attorneys at trial
Clinton A. Morgan
 Assistant District Attorney on appeal
Appellant:
Judist Lamond Broussard
Counsel for the Appellant:
Joseph Salhab
— Counsel at trial
Franklin Bynum
— Counsel on appeal
Judge on Original Application:
A. Reagan Clark
 Presiding judge
ii
Table of Contents
Statement Regarding Oral Argument ................................................. i
Identification of the Parties .............................................................. ii
Table of Contents ................................................................................ iii
Index of Authorities ............................................................................. v
Statement of the Case .......................................................................... 1
Statement of Facts ................................................................................ 1
Summary of the Argument .................................................................. 2
Argument ............................................................................................... 3
The trial court did not err in denying the appellant’s motion to
suppress his confession. The warrant affidavit contained a substantial
basis to support the magistrate’s finding of probable cause.
Additionally, to whatever degree there was police “misconduct” here,
it was so minor that it was not a factor in obtaining the appellant’s
confession. ....................................................................................................................... 3
I. Factual Background: The appellant filed a motion to suppress
his confession. After a hearing, the trial court denied it. ........................ 3
A. The Appellant’s Motion ........................................................................... 3
B. Cisneros’s Testimony ................................................................................ 5
C. The Warrant Affidavit............................................................................... 7
D. Arguments of the Parties and the Trial Court’s Ruling .............. 8
II. Legal Background ........................................................................................ 10
A. A trial court’s ruling on a motion to suppress is reviewed
with deference, and will be affirmed under any applicable theory
of law...................................................................................................................... 10
B. On review, a magistrate’s probable cause determination is
entitled to deference. ...................................................................................... 10
C. If a statement is taken from a defendant arrested on an
invalid warrant, the statement is still admissible if the statement
is sufficiently attenuated ............................................................................... 11
iii
III. Argument ........................................................................................................ 13
A. Though it would have been better had Cisneros included
additional information in the affidavit, the information in the
affidavit was enough to give the magistrate a substantial basis for
determining that probable cause existed. ............................................. 13
B. Even if the affidavit did not establish probable cause, the
appellant’s confession was sufficiently attenuated from any
violation of the law as to be admissible. ................................................. 16
1. Miranda Warnings................................................................................. 16
2. Temporal Proximity .............................................................................. 17
3. Intervening Circumstances ............................................................... 18
4. Purpose and Flagrancy of Official Misconduct.......................... 18
5. Weighing the Factors............................................................................ 19
Conclusion .......................................................................................... 21
Certificate of Compliance and Service ........................................... 22
iv
Index of Authorities
Cases
Bell v. State
724 S.W.2d 780 (Tex. Crim. App. 1986) ........................................................... 17
Castelan v. State
54 S.W.3d 469 (Tex. App.—
Corpus Christi 2001, no pet.) ............................................................................... 20
Farmah v. State
883 S.W.2d 674 (Tex. Crim. App. 1994) ........................................................... 19
Flores v. State
319 S.W.3d 697 (Tex. Crim. App. 2010) ........................................................... 11
Maixner v. State
753 S.W.2d 151 (Tex. Crim. App. 1988) ........................................................... 16
Martinez v. State
348 S.W.3d 919 (Tex. Crim. App. 2011) ........................................................... 10
Miller v. State
736 S.W.2d 643 (Tex. Crim. App. 1987) ........................................................... 19
Monge v. State
276 S.W.3d 180 (Tex. App.—
Houston [14th Dist]. 2009), aff’d, 315 S.W.3d 35 (Tex. Crim. App.
2010) .............................................................................................................................. 13
Monge v. State
315 S.W.3d 35 (Tex. Crim. App. 2010) ............................................... 12, 13, 18
Porath v. State
148 S.W.3d 402 (Tex. App.—
Houston [14th Dist.] 2004, no pet.)................................................................... 10
State v. Duarte
389 S.W.3d 349 (Tex. Crim. App. 2012) ........................................................... 11
State v. Steelman
93 S.W.3d 102 (Tex. Crim. App. 2002) .............................................................. 10
v
Valadez v. State
___ S.W.3d ___, 04-14-00626-CR, 2015 WL 5439087 (Tex. App.—
San Antonio Sept. 16, 2015, pet. filed) ............................................................. 11
Ware v. State
724 S.W.2d 38 (Tex. Crim. App. 1986) .............................................................. 11
vi
Statement of the Case
The appellant was indicted for capital murder. (CR 15). The
appellant pleaded not guilty, but a jury found him guilty as charged. (CR
115, 117). Because the State did not seek the death penalty, the trial
court sentenced the appellant to confinement for life, without the
possibility of parole. (CR 117). The trial court certified the appellant’s
right of appeal, and the appellant filed a timely notice of appeal. (CR 116,
120).
Statement of Facts
In May 2008, Houston police began an investigation into a drug
ring run by Juan Figueredo and Jonathan Siros. (5 RR 20-25). As part of
this investigation, drug-possession charges were brought against
Enrique Velasquez, a member of the ring. (5 RR 29). Shortly after his
arrest, Velasquez agreed to become an informant. (5 RR 30-31). He was
released from jail so that he could gather additional evidence for the
police. (5 RR 32-33, 38-39).
Siros became suspicious about the circumstances of Velasquez’s
release. (5 RR 184-86). After police used information from Velasquez to
obtain a search warrant for Siros’s house, Siros told Figueredo that he
1
knew Velasquez was the informant. (5 RR 45-46, 49-50, 188-89). Siros
asked Figueredo for $6,000 so that he could hire someone to kill
Velasquez. (CR 192-95). Siros used the money to hire the appellant to
kill Velasquez; the appellant used part of the money to hire Donald
Strong to help him. (State’s Ex. 47). In the early morning of November
19, the appellant drove Strong to Velasquez’s house and the two of them
laid in wait. (State’s Ex. 47). When Velasquez came out of his house to go
to work, Strong shot him, fatally. (State’s Ex. 47; 6 RR 118-24). After
being arrested by police, the appellant confessed to his involvement in
the murder. (See State’s Ex. 47).
Summary of the Argument
In a single point of error, the appellant alleges that the trial court
erred in not suppressing his confession, because, he argues, the
confession was obtained as the result of an illegal arrest. Specifically, the
appellant argues that, while police had an arrest warrant, the
supporting affidavit did not contain probable cause.
The State believes that, giving due deference to the magistrate and
trial court, there is sufficient information in the warrant to affirm the
trial court’s ruling. Alternatively, because the police had additional
2
information beyond what was in the affidavit, the police “misconduct” in
this case was so minor — consisting of simply leaving out some
information from an affidavit — that, combined with reading the
appellant his Miranda rights and waiting until the next morning before
taking his statement, any taint from the misconduct was attenuated by
the time the appellant made his confession.
Argument
The trial court did not err in denying the appellant’s motion to
suppress his confession. The warrant affidavit contained a
substantial basis to support the magistrate’s finding of probable
cause. Additionally, to whatever degree there was police
“misconduct” here, it was so minor that it was not a factor in
obtaining the appellant’s confession.
I. Factual Background: The appellant filed a motion to
suppress his confession. After a hearing, the trial court
denied it.
A. The Appellant’s Motion
Prior to trial, the appellant filed a motion to suppress any
statements that he had made to the police. (CR 77-80). This motion
alleged that the appellant’s statements were “the result of coercion and
the use of a two-step interrogation process on the part of law
enforcement officers.” (CR 77). The motion alleged “intimidation on the
part of the police officer and agents of the State of Texas.” (CR 77).
3
Moreover, the motion alleged, the statements were obtained in violation
of the appellant’s “right to remain silent and right to counsel as
guaranteed by” seven constitutional and statutory provisions. (CR 77).
Finally, the motion alleged that the statements “were not taken in
accordance with the statutory requirements of Texas law pertaining to
the admissibility of statements.…” (CR 78). The motion asked for a pre-
trial hearing. (CR 79).
The trial court held a hearing prior to the beginning of testimony.
On the day of the hearing, the appellant filed an “Amended Motion to
Suppress Defendant’s Statements.” (CR 96-100). Defense counsel
advised the trial court that this amended motion contained “a minor
addition,” but was “[e]ssentially … the one we filed previously.” (5 RR 4).
In addition to the allegations in the original motion, the amended
motion alleged “[l]aw enforcement officers unlawfully detained [the
appellant] without probable cause and without a valid arrest warrant,”
and thus the appellant’s custodial statements were the result of an
illegal arrest. (CR 97).
4
B. Cisneros’s Testimony
The only witness at the hearing was Houston Police Sergeant Eli
Cisneros. Cisneros was the lead investigator into Velazquez’s murder. (5
RR 4). Cisneros said that a couple of weeks after Velasquez’s death he
attended a debriefing of Figueredo by federal law enforcement officers.
(5 RR 5-6). Figueredo told the officers that prior to Velazquez’s death,
Siros had come to suspect that Velazquez was an informant. (5 RR 32).
Figueredo said that Siros had asked for $6,000 in order to have
Velazquez killed, and Figueredo had lent him the money. (5 RR 36).
Figueredo said that Siros originally approached someone named
Lawrence Washington, aka “Wash,” to do the killing, but he was unable
to take the job. (5 RR 34). Figueredo said that after Wash turned down
the job, Siros found someone named “Ju” to do it. (5 RR 34-35).
Figueredo said that at later point, after Velazquez was dead, he asked
Siros who had done the killing, and Siros told him that Ju had taken care
of it. (5 RR 34).
Police eventually recovered a phone from Siros that had a number
listed for “Ju.” (5 RR 47). After Figueredo identified a picture of the
appellant as “Ju,” Cisneros obtained an arrest warrant for the appellant.
(5 RR 47-48). The appellant was arrested on March 23, 2010, and
5
brought to the HPD homicide division for questioning around 9:40 pm.
(5 RR 10-11).
Upon arrival, the appellant looked to be “awake, alert, and
oriented,” and “physically fine.” (5 RR 11-12). Cisneros read him the
required statutory warnings, and the appellant agreed to speak with
Cisneros. (5 RR 13-14). The appellant requested a polygraph
examination; because a polygrapher could not be located at such a late
hour, the interview was terminated. (5 RR 14-15). Cisneros took the
appellant to the HPD jail to wait overnight. (5 RR 15).
The next morning, Cisneros picked up the appellant at around
9:30 am. (5 RR 15-16). The appellant seemed physically and mentally
fine. (5 RR 16). Cisneros took the appellant to an interview room at the
homicide division, and another officer began making arrangements for a
polygraph examination. (5 RR 16).
Cisneros went into the interview room and asked the appellant
again if he was sure he wanted to take a polygraph. (5 RR 18). The
appellant said that he did, but then he started asking Cisneros about the
sorts of questions he would be asked: “Are they going to ask if I’m the
one who actually did the killing[?]” (5 RR 18). Cisneros told the
appellant that he would be asked “multiple questions about the case
6
itself.” (5 RR 18). The appellant decided he did not wish to take a
polygraph, but instead wished to speak to Cisneros. (5 RR 19). Cisneros
turned on the video recorder, and the appellant proceeded to confess to
his role in the murder. (5 RR 20-22; State’s Ex. 47).
C. The Warrant Affidavit
Cisneros’s warrant affidavit does not contain as much detail as did
his testimony at the hearing on the motion to suppress. The affidavit
contains three substantive paragraphs. (See State’s Ex. 68). In the first
paragraph, Cisneros introduces himself and the describes the facts of
Velazquez’s murder. Cisneros states that he had come to learn that
Velazquez was a confidential informant for the Houston Police
Department. Cisneros then states that Velazquez had worked for a
narcotics organization headed by Figueredo, and that Figueredo, then in
federal custody, had told Cisneros that he had information regarding
Velazquez’s death.
In the second paragraph, Ciscneros states that “on a date prior to
Thanksgiving in November 2009,” Siros told Figueredo that Velazquez
was the reason Siros had been arrested, and Siros wanted $6,000 in
order to “take care of it.” Figueredo understood “take care of it,” to mean
7
killing Velazquez. Figueredo lent Siros the money. Siros originally told
Figueredo that he was going to get someone named “Washington” to
commit the murder; in a later conversation, Siros told Figueredo that
Washington “was unable to do it,” so Siros “had asked ‘Ju’ to do it.”
In the third paragraph, Cisneros describes his efforts to identify
“Ju.” He states that federal authorities had obtained a cell phone
belonging to Siros, and the phone had a number listed for “Jew.” Cisneros
showed a photograph of the appellant to Figueredo, who identified it as
a picture of “Ju.”
D. Arguments of the Parties and the Trial Court’s
Ruling
After hearing Cisneros’s testimony, and admitting into evidence
the affidavit and the video of the appellant’s confession, the trial court
heard arguments from the parties. The State argued that the affidavit
contained probable cause to justify the arrest, and that the appellant’s
subsequent statement was made voluntarily after he knowingly and
intelligently waived his statutory rights. (5 RR 53-54).
Defense counsel replied by arguing that the affidavit did not state
probable cause. Specifically, defense counsel pointed out that, while the
affidavit stated that Siros had asked the appellant to kill Velazquez, it did
8
not state that the appellant agreed to or actually did kill Velazquez. (5
RR 55-56). Defense counsel argued that the lack of probable cause in the
affidavit meant that the appellant’s arrest was illegal, and, “under the
well[-]known fruit of the poisonous tree doctrine that would render the
taking of the statement a fruit of that poisonous tree.…” (5 RR 57).
The State replied that the evidence in the warrant was sufficient to
establish probable cause. The State pointed out that the warrant
established: 1) Velazquez had been murdered; 2) Siros asked for money
to have Velazquez killed; 3) Siros had contact information for the
appellant; 4) After Washington backed out the deal, Siros asked the
appellant. (5 RR 58).
The trial court found “there to be probable cause for the arrest of
the [appellant].” (5 RR 58). The trial court further found that the
appellant’s statement was made voluntarily, after have he had been
properly advised of his rights. (5 RR 59). Accordingly, the trial court
denied the motion. (5 RR 59).
9
II. Legal Background
A. A trial court’s ruling on a motion to suppress is
reviewed with deference, and will be affirmed under
any applicable theory of law.
A motion to suppress is, in effect, a specialized objection to the
admissibility of evidence. Porath v. State, 148 S.W.3d 402, 413 (Tex.
App.—Houston [14th Dist.] 2004, no pet.). Like all evidentiary rulings a
trial court’s ruling on a motion to suppress is reviewed for an abuse of
discretion. Martinez v. State, 348 S.W.3d 919, 922 (Tex. Crim. App. 2011).
Reversal is appropriate only if the trial court’s ruling is outside the zone
of reasonable disagreement. Ibid.
A trial court’s ruling on a motion to suppress must be upheld if it
is reasonably supported by the record, and if it is correct under any legal
theory applicable to the case. State v. Steelman, 93 S.W.3d 102, 107 (Tex.
Crim. App. 2002).
B. On review, a magistrate’s probable cause
determination is entitled to deference.
In order to issue an arrest warrant, a magistrate must be
presented with an affidavit containing sufficient facts to support an
independent determination that probable cause exists to believe that
the accused has committed a crime. Valadez v. State, ___ S.W.3d ___, 04-
10
14-00626-CR, 2015 WL 5439087, at *3 (Tex. App.—San Antonio Sept.
16, 2015, pet. filed). On appeal, the relevant inquiry is not whether
probable cause existed, but, rather, whether there was a substantial
basis to determine that probable cause existed. State v. Duarte, 389
S.W.3d 349, 354 (Tex. Crim. App. 2012).
The standard of “probable cause” is the same degree of proof in
the case of both search and arrest warrants: considering the totality of
the circumstances, is there a “fair probability” that the accused
committed the offense (for an arrest warrant) or that contraband or
evidence of a crime will be found at the specified location (search
warrant). Ware v. State, 724 S.W.2d 38, 40 (Tex. Crim. App. 1986). An
affidavit for an arrest warrant need not establish that, more likely than
not, the accused committed the offense; rather, it only must show a
“substantial chance” that he did. See Flores v. State, 319 S.W.3d 697, 702
(Tex. Crim. App. 2010).
C. If a statement is taken from a defendant arrested on
an invalid warrant, the statement is still admissible if
the statement is sufficiently attenuated
The legality of arrest warrants is typically litigated in a context
exactly like this one: A suspect is arrested on a warrant, the suspect
11
makes a custodial statement after the arrest, and then, at trial, the
defense claims that the statement should be excluded because it was
obtained in violation of the law. While there is a certain logic and
attractiveness to this argument, whether such a defendant’s statement
was obtained “in violation” of the law is not, when analyzed, as
straightforward as situations where evidence obtained from an illegal
search are declared to have been obtained “in violation” of the law.
Through what has become known as the attenuation doctrine, courts
have recognized that even if a suspect’s original arrest was illegal, a
sufficient amount of time and intervening events between the arrest and
the custodial statement could produce a conclusion that the statement
was not obtained as a result of the illegal arrest. See e.g., Monge v. State,
315 S.W.3d 35, 40 (Tex. Crim. App. 2010). This is one reason why there
are so few reported cases that discuss probable cause in the context of
an arrest warrant.
An attenuation analysis looks at four factors: 1) whether Miranda
warnings were given; 2) the temporal proximity of the arrest to the
confession; 3) the presence of intervening circumstances; and 4) the
purpose and flagrancy of the official misconduct. Ibid. (quoting Monge v.
State, 276 S.W.3d 180, 184-85 (Tex. App.—Houston [14th Dist]. 2009),
12
aff’d, 315 S.W.3d 35 (Tex. Crim. App. 2010)). No single factor in this
analysis is decisive; rather, reviewing courts consider the effect of the
factors as a whole. Monge, 315 S.W.3d at 40. Generally, if a defendant has
been read his Miranda rights, if a few hours passed between the arrest
and statement, if there was an independent intervening circumstance
that caused the defendant to give a statement (like a co-defendant’s
confession), and if the “official misconduct” was unintentional or minor,
the defendant’s statement will be considered to be sufficiently
attenuated from the illegal arrest so as to allow its admission into
evidence. See id. at 40-42.
III. Argument
A. Though it would have been better had Cisneros
included additional information in the affidavit, the
information in the affidavit was enough to give the
magistrate a substantial basis for determining that
probable cause existed.
In his brief, the appellant cogently points out that the affidavit
does not explicitly state that he killed or agreed to kill Velazquez.
(Appellant’s Brief at 11-12). The State agrees that the affidavit would
have been better had it included the fact that Figueredo told Cisneros
that the appellant had participated in the killing, but the sufficiency of
13
an affidavit is determined by looking at the information it contains, not
the information that is missing.
Giving deference to the magistrate’s implicit determinations that
Cisneros and Figueredo were credible, the affidavit establishes that
1. Figueredo ran a drug organization;
2. Figueredo knew that Siros was in federal custody, and that Siros
believed Velazquez had given authorities the information that led
to his arrest;
3. In early-to-mid November, Siros had asked Figueredo for $6000 so
that Siros could pay someone to kill Velazquez, and Figueredo
gave him the money;
4. Siros actively sought out people to kill Velazquez, first asking
someone named “Washington” to do it, and then, after Washington
declined, asking “Ju”;
5. The appellant is Ju;
6. Siros had the appellant’s contact information;
7. Velazquez was killed on November 19 by a single shot to the chest;
8. Velazquez actually was an informant who gave the police
information on a drug organization run by Figueredo;
While certainly not enough to support a conviction, this
information provided a substantial basis for concluding that the
appellant had some level of party responsibility for Velazquez’s murder.
In claiming the contrary in his brief, the appellant asks his reader to kill
14
Donald Trump for $6,000, and then asks whether the mere fact of that
request would be sufficient to support an arrest warrant for his reader.
(Appellant’s Brief at 12). The State believes the deficiencies in the
appellant’s cutesy example help illustrate how much information
Cisneros’s affidavit contained. In order for the appellant’s example to be
analogous, his brief would have had to advised also that: 1) Donald
Trump was dead; 2) the death was a murder; 3) the appellant was
legitimately interested in paying for Trump’s murder, rather than merely
using a hypothetical to express distaste; 4) the appellant had borrowed
$6,000 explicitly for the purpose of facilitating Trump’s; 5) the appellant
was so interested in Trump’s murder that even after one individual
refused to do it he contacted someone else; 6) the appellant had his
reader’s contact information in his cell phone; and 7) Trump’s murder
occurred in the same general time frame as when the appellant
contacted his reader about the murder.
The emphasis in reviewing an arrest warrant on appeal is not
whether the facts in the affidavit established that the suspect was guilty,
but whether they establish a “fair probability” or a “substantial basis”
for believing that the suspect had some criminal responsibility for the
alleged offense. The State believes the affidavit in this case satisfied that
15
test, and thus the trial court did not abuse its discretion in denying the
appellant’s motion to suppress.
B. Even if the affidavit did not establish probable cause,
the appellant’s confession was sufficiently
attenuated from any violation of the law as to be
admissible.
While the issue of probable cause is something of a close call in
this case, what is not close is the attenuation analysis. Looking at the
four attenuation factors, the appellant’s statement was admissible.
1. Miranda Warnings
The appellant was read his Miranda warnings at least twice, once
when he was taken to the police station immediately after his arrest, and
again the next morning prior to making his recorded statement. (5 RR
12-13; State’s Ex. 47). Though this factor is not determinative, it does
weigh in favor of admissibility. Maixner v. State, 753 S.W.2d 151, 156
(Tex. Crim. App. 1988) (where defendant was advised of rights “several
times,” this factor was “important factor” supporting conclusion that
statement was obtained as a result of illegal arrest).
16
2. Temporal Proximity
Something like 12 hours passed between when the appellant was
first brought to the police station and when he made his confession.
Courts recognize that temporal proximity is a somewhat ambiguous
factor in the attenuation analysis: If the time between an illegal arrest
and confession is very short, that supports a conclusion that the
confession was the result of the illegal arrest; however, if a detention
drags on for a very long period of time, such as several days, that might
also support an inference that the confession was the result of the illegal
detention. See Bell v. State, 724 S.W.2d 780, 789 n.4 (Tex. Crim. App.
1986) (collecting cases holding that intervals of one and two hours
hours and “two or three days” weighed in favor of inadmissibility, but
delays of three, five, twenty-four, twenty-nine, and forty-eight hours
weighed in favor of admissibility).
The State believes the temporal proximity in this case weighs in
favor of admissibility, though this is the weakest of the four factors. The
appellant was under arrest for long enough to clear his mind of the
arrest itself, but not so long as to constitute the sort of lengthy illegal
detention that might prompt a false confession. He was arrested,
allowed to sleep through the night while police tried to prepare him for
17
a polygraph examination, and then he gave his statement early the next
morning. 1
3. Intervening Circumstances
Prior to the appellant’s statement, Cisneros showed the appellant
pictures of several people connected to this murder. (State’s Ex. 47).
Courts have held that if an illegally-arrested defendant confesses after
being confronted with “significant evidence” of his guilt, that breaks the
chain of causation from the illegal arrest and weighs in favor of
admissibility. Monge, 315 S.W.3d at 41. The State would not characterize
the information with which Cisneros confronted the appellant as
“significant,” but neither was it non-existent.
4. Purpose and Flagrancy of Official Misconduct
The State believes that in this case, the fourth factor is far and
away the most important. The “misconduct” in this case was so minor as
to bring into question whether that is even the appropriate word. Had
the prosecutor who helped Cisneros draft his affidavit simply included
1 The appellant refers to the delay in setting up a polygraph as police “drag[ging]
their feet.” (Appellant’s Brief at 13). If the appellant is accusing the police of bad
faith, that has no basis in the record. Considering that a polygraph examination
requires special equipment, a trained polygrapher, and preparations in order to
prepare questions, the State suggests that, as police had no prior notice that the
appellant wished to take a polygraph, the inability to give a spur-of-the-moment
polygraph exam at 10:00 pm was understandable.
18
the fact that Figueredo had told Cisneros that the appellant had followed
through in killing Velazquez, the affidavit would have, unquestionably,
been sufficient. Thus any “misconduct” in this case was not in making an
arrest unsupported by probable cause, it was in failing to include an
additional piece of information in an affidavit.2 See Miller v. State, 736
S.W.2d 643, 650 (Tex. Crim. App. 1987) (where police arrested suspect
based on facially valid arrest warrant, but affidavit supporting warrant
was later found to lack probable cause, arresting officers’ actions
“cannot be classified as misconduct,” and complained-of evidence was
attenuated from any illegality); compare Farmah v. State, 883 S.W.2d
674, 679 (Tex. Crim. App. 1994) (where police make arrest without
probable cause, misconduct weighs “strongly” in favor of excluding
statement obtained after arrest).
5. Weighing the Factors
The first and second factors weigh in favor of finding attenuation,
the third factor is somewhat ambiguous or perhaps weights against
2 In his brief, on the page before he accuses the police of “drag[ging] their feet” in
taking the appellant’s statement, the appellant accuses the police of “simply act[ing]
too quickly here” by procuring the warrant before they had probable cause.
(Appellant’s Brief at 12). However, Cisneros’s testimony at the motion-to-suppress
hearing was that he obtained the full story from Figueredo, including the fact that
the appellant had followed through on the murder, in a single debriefing prior to
getting the warrant. (See 5 RR 34-35).
19
attenuation, and the fourth factor weighs strongly in favor of
attenuation. The most on-point case for this combination of factors is
Castelan v. State, 54 S.W.3d 469 (Tex. App.—Corpus Christi 2001, no
pet.). In that case, police arrested Castelan based on a warrant. Though
police had probable cause to support a warrant, the warrant that issued
was invalid because of a typographical error. After his arrest in the late
afternoon, Castelan remained in custody overnight. The next morning
police advised Castelan of the Miranda warnings, after which he gave a
statement to police. There were no intervening circumstances. On
appeal, because the degree of “misconduct” in that case was so minor,
the strength of the first two attenuation factors was enough to attenuate
the illegal arrest, thus the statement was admissible. Castelan, 54 S.W.3d
at 478-79.
A similar analysis in this case would produce a similar result:
Because 1) the appellant was read the Miranda warnings, 2) roughly
twelve hours passed between the arrest and statement, and 3) any
police “misconduct” consisted only of leaving a detail out of an affidavit,
any illegality in this case is sufficiently attenuated from the appellant’s
statement as to render the statement admissible. Accordingly, the trial
court did not abuse its discretion in denying the motion to suppress.
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Conclusion
The State respectfully submits that all things are regular and the
judgment of the trial court should be affirmed.
DEVON ANDERSON
District Attorney
Harris County, Texas
/s/ C.A. Morgan
CLINTON A. MORGAN
Assistant District Attorney
Harris County, Texas
1201 Franklin, Suite 600
Houston, Texas 77002
713.755.5826
Texas Bar No. 24071454
21
Certificate of Compliance and Service
I certify that, according to Microsoft Word’s word counting
function, the portion of this brief for which Rule of Appellate Procedure
9.4(i)(1) requires a word count contains 4,055 words.
I also certify that I have requested that efile.txcourts.gov
electronically serve a copy of this brief to:
Franklin Bynum
fgb@lawfgb.com
/s/ C.A. Morgan
CLINTON A. MORGAN
Assistant District Attorney
Harris County, Texas
1201 Franklin, Suite 600
Houston, Texas 77002-1923
(713) 274-5826
Texas Bar No. 24071454
Date: October 30, 2015
22