Alvarez, Robert v. State

• Court: Court of Appeals of Texas
• Decided: November 2, 2004
• Docket: 14-03-01159-CR
• Status: Published

Opinion

Affirmed and Memorandum Opinion filed November 2, 2004

Affirmed and Memorandum Opinion filed November 2, 2004.

In The

Fourteenth Court of Appeals

_______________

NO. 14-03-01159-CR

ROBERT ALVAREZ, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 174th District Court

Harris County, Texas

Trial Court Cause No. 930,906

M E M O R A N D U M   O P I N I O N

Appellant, Robert Alvarez, appeals a conviction for murder on the ground that the trial court erred in admitting his confession.  Because all dispositive issues are clearly settled in law, we issue this memorandum opinion and affirm.  See Tex. R. App. P. 47.4.

BACKGROUND

On October 8, 2002, Rito Davila was visiting Lorie Alvarez, appellant=s sister.  Appellant and Belinda Molina, his girlfriend, arrived at his sister=s house.  After appellant began arguing with his sister, Davila decided to leave, stating that he did not want to have any problems with appellant.^[1]

As Davila drove away, appellant fired a shotgun at him.  Appellant got into his girlfriend=s car and chased Davila.  Appellant shot at Davila again as they drove down the road.  Davila drove off the road and came to a stop on someone=s yard.  Appellant fatally shot Davila and left.

On November 18, 2002, Officer Chance Davis and Texas Ranger Freeman Martin saw appellant=s girlfriend drive her car to a house that was under surveillance based on a tip that appellant was inside.  Because they could not tell whether appellant was in the car when she later drove away, Officer Davis stayed to watch the house while Ranger Martin followed her. When she stopped at a store, Ranger Martin found appellant in the back seat and arrested him.  Both appellant and his girlfriend were taken to the police station, but after appellant confessed, his girlfriend was released.

DISCUSSION

In his sole issue, appellant contends the trial court abused its discretion in denying  his motion to suppress his confession.  Appellant argues that he only confessed because of a threat to charge his girlfriend with harboring a fugitive.

We review a trial court=s decision on a motion to suppress evidence for an abuse of discretion.  Balentine v. State, 71 S.W.3d 763, 768 (Tex. Crim. App. 2002).  At a hearing on a motion to suppress evidence, the trial court is the sole trier of fact and judge of the credibility of the witnesses and the weight to be given their testimony.  State v. Ross, 32 S.W.3d 853, 855 (Tex. Crim. App. 2000).  Because the trial court observes first-hand the demeanor and appearance of the witnesses, it may choose to believe or disbelieve all or any part of their testimony.  Id.

When the voluntariness of a confession is challenged, the State has the burden of proving by a preponderance of the evidence that the confession was voluntary.  Alvarado v. State, 912 S.W.2d 199, 211 (Tex. Crim. App. 1995).  A confession is involuntary Aonly if there was official, coercive conduct of such a nature that any statement obtained thereby was unlikely to have been the product of an essentially free and unconstrained choice by its maker.@  Id.; see also Mason v. State, 116 S.W.3d 248, 257 (Tex. App.CHouston [14th Dist.] 2003, pet. ref=d).  A threat made by the police to arrest or punish a relative, or a promise to free a relative in exchange for a confession, may render the confession involuntary.  Roberts v. State, 545 S.W.2d 157, 161 (Tex. Crim. App. 1977); Hunter v. State, __ S.W.3d __, No. 14-03-00534-CR, 2004 WL 2058386, at *3 (Tex. App.CHouston [14th Dist.] Sept. 16, 2004, no pet. h.).  However, if no express or implied threat or promise is made by the police, a prisoner=s belief that his cooperation will benefit a relative will not render his confession inadmissible.  Roberts, 545 S.W.2d at 161; Hunter, __ S.W.3d at __, 2004 WL 2058386, at *3.  When a prisoner makes a self-motivated confession in order to extricate an innocent relative from conditions that place the relative under suspicion, the trial court may deem the confession voluntary.  Roberts, 545 S.W.2d at 161; Hunter, __ S.W.3d at __, 2004 WL 2058386, at *3.

Appellant contends that Ranger Martin expressly threatened to charge appellant=s girlfriend with harboring a fugitive.^[2]  However, Ranger Martin denied making any threat or promise, and denied hearing anyone else do so.  Officer Davis confirmed that no one made any threat or promise the entire time appellant was at the police station.  As the sole judge of the credibility of the witnesses, the trial court had the discretion to believe the testimony of Ranger Martin and Officer Davis, and determine that no express threat or promise was made. See Ross, 32 S.W.3d at 855.

Appellant also contends that the police impliedly threatened to charge his girlfriend because she was taken to the police station at the same time as appellant, held until appellant gave his confession, and never charged with a crime.  However, appellant was arrested while hiding in the back seat of his girlfriend=s car.  Thus, appellant was the one who placed her under suspicion of wrongdoing.  See Roberts, 545 S.W.2d at 161; Hunter, __ S.W.3d at __, 2004 WL 2058386, at *4.  The trial court had the discretion to determine appellant=s confession was self-motivated, and not in response to an implied threat or promise.  See Roberts, 545 S.W.2d at 161; Hunter, __ S.W.3d at __, 2004 WL 2058386, at *4.

Finally, to support his argument that his confession was involuntary, appellant relies on Tovar v. State, 709 S.W.2d 25 (Tex. App.CCorpus Christi 1986, no pet.).  However, Tovar is distinguishable.  In Tovar, the investigator testified the prisoner was told if he Atook the rap,@ no charges would be filed against his wife.  Id. at 28.  The court held, AEven if the trial judge determined that only the investigator=s testimony was credible, the totality of that testimony is sufficient to establish that the confession was given in exchange for a promise of leniency for appellant=s wife.@  Id. at 29.  In this case, the officers testified that no express or implied threats or promises were made to appellant.  Thus, if the trial court determined that only their testimony was credible, the totality of that testimony would not show that a threat or promise was made.  Appellant=s sole issue is overruled.

Accordingly, the judgment of the trial court is affirmed.

/s/        Charles W. Seymore

Justice

Judgment rendered and Memorandum Opinion filed November 2, 2004.

Panel consists of Chief Justice Hedges and Justices Fowler and Seymore.

Do Not Publish C Tex. R. App. P. 47.2(b).

---

^[1]  Appellant testified that he believed Davila was selling Lorie Alvarez crack cocaine.  However, aside from appellant=s testimony, there is no evidence in the record that Davila was doing so.

^[2]  Appellant also refers to Molina as his common-law wife.  The Court of Criminal Appeals has only addressed threats made against a Arelative.@  See Roberts v. State, 545 S.W.2d at 161.  However, because our decision is unaffected by whether Molina was a relative within the meaning of Roberts, we will not address the questions of whether Molina was appellant=s common-law wife or whether Roberts also applies to a girlfriend.  We will simply refer to Molina as appellant=s girlfriend and assume Roberts applies.