In The Court of Appeals Seventh District of Texas at Amarillo
No. 07-17-00327-CR No. 07-17-00328-CR
AMADO R. MIRANDA, APPELLANT
V.
THE STATE OF TEXAS, APPELLEE
On Appeal from the 137th District Court Lubbock County, Texas Trial Court No. 2005-410,183; Honorable John J. "Trey" McClendon III, Presiding
October 17, 2019
MEMORANDUM OPINION Before QUINN, C.J., and PIRTLE and PARKER, JJ.
Appellant, Amado R. Miranda, appeals from his conviction by a jury of two counts
of indecency with a child by contact1 and the court-imposed sentence of twelve years of
imprisonment.2 Appellant challenges his conviction through several issues. We will
affirm.
1 TEX. PENAL CODE ANN. § 21.11(a)(1) (West 2019). An offense under this subsection is a felony of the second degree. Id. at § 21.11(d).
2 TEX. PENAL CODE ANN. § 12.33 (West 2019) (a second-degree felony is punishable by imprisonment for any term of not more than 20 years or less than 2 years and a fine not to exceed $10,000). BACKGROUND
Appellant does not challenge the sufficiency of the evidence to support his
convictions. Accordingly, we will discuss only the facts pertinent to disposition of his
appellate issues. TEX. R. APP. P. 47.1.
Appellant was indicted for four counts of indecency with a child by contact. The
State elected to proceed to trial on only two of those counts. Prior to trial, Appellant filed
a motion to suppress his confession. As grounds for his motion, Appellant contended his
confession was involuntary and violated his due process rights under the Texas and
Federal Constitutions because the confession was the product of police coercion from
“various statements, threats, and promises which violated [his] free will . . . .” He argued
also that the detective who interviewed him used his “personal tragedies to coerce a
confession.” Further, Appellant argued that the translator who assisted the detective and
Appellant communicate did not properly translate the questions and responses, leaving
Appellant confused and unable to understand the questions being asked.
The court heard the recorded statement from Appellant and also reviewed two
transcripts of the interview. It also heard Appellant’s testimony. After the trial court heard
the evidence presented, it denied Appellant’s motion to suppress and the matter
proceeded to a jury trial. During trial, Appellant re-urged his motion to suppress his
statement. The court denied the re-urged motion and entered findings of fact and
conclusions of law in which it found Appellant’s confession was freely and voluntarily
made and found Appellant was not in custody when he gave his confession.
2 ISSUES ONE AND TWO—ADMISSIBILITY OF APPELLANT’S CONFESSION
In Appellant’s first two issues, he contends his statement to police was involuntary
and thus, inadmissible. We disagree and overrule the issues.
VOLUNTARINESS OF CONFESSION
We review a ruling on a motion to suppress evidence for abuse of discretion. Crain
v. State, 315 S.W.3d 43, 48 (Tex. Crim. App. 2010); Shepherd v. State, 273 S.W.3d 681,
684 (Tex. Crim. App. 2008) (citation omitted). In so doing, we view the facts in the light
most favorable to the trial court’s decision. Crain, 315 S.W.3d at 48 (citation omitted).
We give almost total deference to a trial court’s express or implied determination of
historical facts and review de novo the court’s application of the law to those facts. Id.
(citation omitted). The trial court is the “sole trier of fact and judge of credibility of the
witnesses and the weight to be given to their testimony.” Fears v. State, 491 S.W.3d 884,
887 (Tex. App. Houston [1st Dist.] 2016, pet. ref’d) (citing St. George v. State, 237 S.W.3d
720, 725 (Tex. Crim. App. 2007)). The trial court may choose to believe or disbelieve all
or any part of a witness's testimony. Id. (citation omitted). Furthermore, we will sustain
the trial court’s ruling if it is reasonably supported by the record and correct on any theory
of law applicable to the case. Id. (citing Laney v. State, 117 S.W.3d 854, 857 (Tex. Crim.
App. 2003)).
Several sources of law are relevant to Appellant’s first two appellate issues: (1)
the Miranda rule; (2) the Texas confession statute; and (3) the right to be free from police
coercion under the Due Process Clause of the Fourteenth Amendment to the
Constitution. Lopez v. State, No. 13-13-00307-CR, 2015 Tex. App. LEXIS 6561, at *10-
11 (Tex. App.—Corpus Christi June 25, 2015, pet. ref’d) (mem. op., not designated for
3 publication) (citations omitted). First, Miranda safeguards the Fifth Amendment right
against self-incrimination in the context of custodial interrogations by requiring that a
person subject to police questioning receive the following warnings: “that he has a right
to remain silent, that any statement he does make may be used as evidence against him,
and that he has a right to the presence of an attorney, either retained or appointed.” Id.
(citing Miranda v. Arizona, 384 U.S. 436, 444, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966)).
Second, Texas statutory law requires that in order for an accused’s statement to
be used against him at trial, the statement must be “freely and voluntarily made without
compulsion or persuasion, under the rules hereafter prescribed.” TEX. CODE CRIM. PROC.
ANN. art. 38.21 (West 2005). The Texas confession statute implements Miranda by
requiring, among other things, that the accused’s statement be either written or recorded
and that the written or recorded statement contain a reading of the Miranda warnings,
along with the accused’s waiver thereof. TEX. CODE CRIM. PROC. ANN. art. 38.22 (West
2018).
Third, the Due Process Clause of the Fourteenth Amendment requires that an
accused’s statement be voluntary and not the product of police coercion. Lopez, 2015
Tex. App. LEXIS 6561, at *10-11 (citing Armstrong v. State, 718 S.W.2d 686, 693 (Tex.
Crim. App. 1985)). A confession may be involuntary under the Due Process Clause only
where there is police overreaching. Oursburn v. State, 259 S.W.3d 159, 169 (Tex. Crim.
App. 2008).
The Court of Criminal Appeals has noted that under articles 38.21 and 38.22, fact
scenarios that can raise a state-law claim of involuntariness, even though they do not
raise a federal constitutional claim, may include the following: “(1) the suspect was ill and
4 on medication and that fact may have rendered his confession involuntary; (2) the suspect
was mentally retarded and may not have ‘knowingly, intelligently and voluntarily’ waived
his rights; (3) the suspect ‘lacked the mental capacity to understand his rights’; (4) the
suspect was intoxicated, and he ‘did not know what he was signing and thought it was an
accident report’; (5) the suspect was confronted by the brother-in-law of his murder victim
and beaten; (6) the suspect was returned to the store he broke into ‘for questioning by
several persons armed “with six-shooters.”’” Oursbourn, 259 S.W.3d at 172-73 (citations
omitted). The potential “involuntary” fact scenarios encompassed by articles 38.21 and
38.22 are “broader in scope than those covered by the Due Process Clause or Miranda.”
Id.
To determine whether the circumstances render an accused’s statement coerced
and involuntary, courts look at whether his will was “overborne” by police coercion. Lopez,
2015 Tex. App. LEXIS 6561, at *10-11 (citation omitted). Courts look to the totality of the
circumstances surrounding the statement in making this determination. Id. (citations
omitted). Relevant circumstances include the “length of detention, incommunicado or
prolonged detention, denying a family access to a defendant, refusing a defendant's
request to telephone a lawyer or family member, and physical brutality.” Id. (citation
omitted). When the issue is raised, the State must prove voluntariness by a
preponderance of the evidence. Id. (citing Juarez v. State, 409 S.W.3d 156 (Tex. App.—
Houston [1st Dist.] 2013 pet. ref’d)).
Miranda applies only to use of statements obtained from a suspect during a police-
initiated “custodial interrogation.” Estrada v. State, 313 S.W.3d 274, 294 (Tex. Crim. App.
2010) (citing Miranda, 384 U.S. at 444). In determining “whether an individual was in
custody, a court must examine all of the circumstances surrounding the interrogation, but 5 the ultimate inquiry is simply whether there [was] a formal arrest or restraint on freedom
of movement of the degree associated with a formal arrest.” Id. (citing Stansbury v.
California, 511 U.S. 318, 322, 114 S. Ct. 1526, 128 L. Ed. 2d 293 (1994) (internal quotes
omitted); Dowthitt v. State, 931 S.W.2d 244, 254 (Tex. Crim. App. 1996)). See also Ervin
v. State, 333 S.W.3d 187 (Tex. App.—Houston [1st Dist.] Aug. 11, 2010, pet. ref’d).
On appeal, Appellant contends the totality of the circumstances shows his
confession was not voluntary. He first argues that the “linguistic confusion and vague
questioning” of him by an uncertified translator raised “serious doubts” as to the
voluntariness of his statement. He argues that he did not accurately understand the
detective’s questions and was frustrated by the translator’s inability to communicate what
Appellant was trying to tell the detective. He contends he did not understand and did not
know what he confessed to doing. This, he says, deprived him of due process of law. He
also asserts that the detective engaged in coercive police misconduct because he
promised to let Appellant be with his wife who had been recently diagnosed with invasive
cancer, because he threatened Appellant with arrest regardless of whether he confessed,
and because he told Appellant the interview would not end until he admitted to something
more than a “misinterpretation” of the events that led to the accusation that he was
indecent with a child.
As part of his argument, Appellant complains of the hour-and-a-half he had to wait
prior to the beginning of the interview and the two-hour long interrogation. He argues that
the lengthy wait time, coupled with the lack of Miranda warnings, and the coercive nature
of the questioning showed he was in custody for the purposes of Miranda.
6 This case is similar to the situation in Estrada, 313 S.W.3d at 294 in which the
Court determined the record supported the trial court’s finding that the defendant was not
in custody when he provided his first recorded statement to police. There, the Court found
that while the interrogation took place at the police station and lasted five hours, the
defendant came to the police station voluntarily, police told him several times that he was
free to leave, he acknowledged he could have left, and stated several times that he
wanted to leave and go home. Id. In reaching its conclusion, the Court relied on the
opinions in Oregon v. Mathiason, 429 U.S. 492, 493-96, 97 S. Ct. 711, 50 L. Ed. 2d 714
(1977) and California v. Beheler, 463 U.S. 1121, 1122-25, 103 S. Ct. 3517, 77 L. Ed. 2d
1275 (1983). In Mathiason, the Court noted that a non-custodial situation is not converted
into one in which Miranda applies solely because the interrogation took place in a
“coercive environment.” 429 U.S. at 495. It further noted that any interview of a person
suspected of a crime by a police officer will have coercive aspects to it, but a police officer
is not required to administer the Miranda warnings to everyone they question. Id. In
Beheler, the Court concluded the defendant was not in custody when he voluntarily came
to the police station on the day of the offense, gave a statement to police after being
questioned for thirty minutes and was then allowed to go home. Beheler, 463 U.S. at
1122. See also Courtney v. State, No. 07-02-0159-CR, 2004 Tex. App. LEXIS 965 (Tex.
App.—Amarillo Jan. 30, 2004, pet. ref’d) (mem. op., not designated for publication)
(finding questioning was not custodial just because questioning occurs in a police station).
Two separate transcripts were admitted into evidence at the motion to suppress
hearing. In addition, an audio recording of the interview was also admitted without
objection. Appellant was the only witness that testified at the hearing on the motion to
suppress. There, he told the court he voluntarily went to the police station, believing he
7 was going to speak with the detective about payment of property taxes for some land his
church purchased. He testified the detective spoke “all in English.” He said “a certain
amount of time” or “a lot of time” had gone by before someone “who didn’t speak Spanish
perfectly” came in to help him and the detective communicate.3
Appellant said he felt “suppressed” and “felt cornered” during his interview with the
detective. He said, “it was a lot of pressure for me.” He testified it “was almost like they
were obligating me to say what they were asking me” and he “didn’t have any other
option.” He also told the court he “never understood that [he] had rights.” He further
testified that the detective did not “exactly” make promises to him but said that if Appellant
“spoke, that he was going to help me.” Appellant also said the detective “did insist. He
did keep insisting in his questions.” Appellant agreed that the detective promised him that
if he told him what he wanted to hear, “he would let [Appellant] return to your family . . .
and to your wife.” However, Appellant also said the detective “never said, ‘I promise you
that I’m going to do this,’ but it was like they were inducing me that if I collaborated, or
cooperated with them, that things would come out okay.” Appellant also said he
understood that the detective told him that he could not make promises about how
Appellant’s situation would be handled; however, he would make the people involved
aware of his wife’s cancer diagnosis.
Appellant was not restrained in any way and he was told at the outset of the
interview that he was free to leave. When the translator came in, he said “First of all, I
want him to understand that he doesn’t have to talk to me.” The detective then reiterated
that and said, “He can leave at any time . . . .” Appellant told the court that while he
3 On cross-examination, the State asked Appellant if he would be “surprised that actually only about
ten minutes had gone by” and Appellant responded, “yes, some time went by.” 8 remembered some of the statements that were made to him, he did not understand he
had the right to stay quiet or the right to leave. He admitted he did say, “Si, yes” in
response to whether he understood the admonishments he was given. Appellant now
insists that he “was just answering yes, no, yes, no, without really understanding . . . what
they were trying to tell me.” Appellant later said he “possibly understood” that the
detective repeatedly told him he would be able to leave “but what I was seeing in their
facial expressions, in their movements, is that they were angry with me, or bothered me.”
The record does show Appellant waited for approximately an hour-and-a-half
before the interview began and that the interview then spanned two hours. The record
also shows that Appellant maintained his innocence for a long period before making some
equivocal admissions to his actions. The transcript also shows the detective told
Appellant, “No matter what you say here to me today, you are leaving my office and going
home, I promise you that.” However, Appellant said he did not remember being told that.
Further, the record shows the problems the detective had communicating with
Appellant and the use of a non-certified translator to help them talk. Appellant said “it
was a lot of pressure for me. I don’t know if it was because—because of the way they
were presenting the matter to me, or the anxiety because I wasn’t understanding, and
they weren’t understanding me.” He said, “all I know is that I was struggling with the—
the Spanish. It’s not like it is now, where we have time to be able to think about the
question that’s being asked, it was—then it was just a bombardment of questions in
English and in Spanish, that’s what I’m talking about when—when I talk about mistakes,
mistakes that one can commit by not understanding, by not understanding these things,
and that is what happened to me.” Appellant did answer, “definitely,” when asked whether
9 the lack of effective communication that occurred that day resulted in an involuntary
statement.
Appellant told the court his statement was “definitely not” voluntary. He testified
“[t]his wasn’t voluntary. I was coerced to speak.” He went on to say that “[o]n various
occasions on various questions” he felt forced to say what he said. He then told the court
he didn’t understand “why this problem is so serious, because I didn’t do any kind of—
any—any harm to that family. I didn’t have any kind of contact. I didn’t touch her skin . .
. or body.” He later protested his innocence again, saying “I never touched [the girl] on
her skin or on her body, and she has never touched me. But I’m saying that it was very—
it was an insignificant type of touching, like grandparent with a girl, that’s all it was.” He
told the court, “that is the blame that I have in this in that I allowed that [the complainant]
touch over on top of my pants, on my—on my intimate places.” He maintained that he
“really did not understand the question” when he was asked if he touched the girl’s vagina
for sexual reasons. He said if the question had been asked the way it was asked during
the hearing on the motion to suppress, he “probably wouldn’t have said yes” but during
the interrogation, he understood the detective to be asking about touching like “by
hugging.”
Reviewing the facts in the light most favorable to the trial court’s decision, while
recognizing the trial court was the sole trier of fact and the judge of the credibility of
Appellant’s testimony, the trial court could have reasonably concluded that, while
Appellant may have been confused about the criminality of his conduct and the
seriousness of the allegations, his statements to the police were not involuntary or
coerced. Confusion is not the same thing as coercion and an ill-advised statement is not
the same thing as an involuntary statement. Sufficient evidence supports the trial court’s 10 conclusion that Appellant’s statutory and constitutional rights were not violated in the
taking of his statement. Because we do not find an abuse of discretion in the trial court’s
ruling, we resolve Appellant’s first two issues against him.
INEFFECTIVE ASSISTANCE OF COUNSEL
In his second issue, Appellant argues his counsel rendered ineffective assistance
because he failed to object to the admission of his statement under article 38.22 of the
Texas Code of Criminal Procedure. While Appellant acknowledges that his counsel did
file a motion to suppress his statement on the basis of alleged due process violations, he
contends his counsel was ineffective because he did not object to its admission under the
more expansive article 38.22.
Both the United States and Texas Constitutions guarantee an accused the right to
the effective assistance of counsel. Rodriguez v. State, Nos. 07-15-00412-CR, 07-16-
00124-CR, 2016 Tex. App. LEXIS 13584, at *3-5 (Tex. App.—Amarillo Dec. 21, 2016, no
pet.) (mem. op., not designated for publication) (citing U.S. CONST. amend. VI; TEX.
CONST. art. I, § 10; Strickland v. Washington, 466 U.S. 668, 686, 104 S. Ct. 2052, 80 L.
Ed. 2d 674 (1984)). Claims of ineffective assistance of counsel are reviewed under the
two-pronged analysis articulated in Strickland. Id. (citing Thompson v. State, 9 S.W.3d
808, 812 (Tex. Crim. App. 1999)). To show ineffective assistance, a defendant must
demonstrate that (1) counsel’s representation fell below an objective standard of
reasonableness, and (2) there is a reasonable probability that, but for counsel’s deficient
performance, the result of the proceeding would have been different. Id. (citing Strickland,
466 U.S. at 687-88, 694; Lopez v. State, 343 S.W.3d 137, 142 (Tex. Crim. App. 2011)).
11 Looking at the issue in hindsight, there is a strong presumption that trial counsel’s
conduct fell within the wide range of reasonable professional assistance. Id. (citing
Strickland, 466 U.S. at 689). Appellant’s failure to prove both prongs of the Strickland
test is fatal to his ineffective assistance of counsel claim. Id. (citing Lopez, 343 S.W.3d at
142).
The “right to effective assistance of counsel merely ensures the right to reasonably
effective [not perfect] assistance.” Id. (citing Robertson v. State, 187 S.W.3d 475, 483
(Tex. Crim. App. 2006) (quoting, with alteration, Ingham v. State, 679 S.W.2d 503, 509
(Tex. Crim. App. 1984) (en banc)). “Isolated instances in the record reflecting errors of
omission or commission do not render counsel’s performance ineffective, nor can
ineffective assistance of counsel be established by isolating one portion of trial counsel’s
performance for examination.” Id. (citations omitted). Counsel’s performance must be
judged by “the totality of the representation,” and “judicial scrutiny of counsel’s
performance must be highly deferential” with every effort made to eliminate the distorting
effects of hindsight. Id. (citation omitted).
As we discussed in our analysis of Appellant’s first two issues, the admission of
his statement was not in error under any applicable law, including article 38.22.
Consequently, the statement would have been admitted into evidence even if counsel
had objected under the basis of article 38.22. Accordingly, we do not find counsel’s failure
to object to the admission of Appellant’s statement to police rendered ineffective
assistance. Further, we note counsel actively participated in Appellant’s defense by filing
a motion to suppress, by being actively engaged at all phases of trial, by engaging in
effective cross-examination of witnesses, and by presenting witnesses on Appellant’s
behalf. Accordingly, we overrule Appellant’s final issue. 12 CONCLUSION
Having resolved each of Appellant’s issues against him, we affirm the judgments
of the trial court.
Patrick A. Pirtle Justice
Do not publish.