Armendariz, Emmanuel

Opinion

PD-0646-15

COURT OF CRIMINAL APPEALS AUSTIN, TEXAS

Transmitted 7/8/2015 7:46:48 PM Accepted 7/9/2015 4:37:55 PM ABEL ACOSTA

PD-0646-15 CLERK

IN THE

COURT OF CRIMINAL APPEALS OF TEXAS

EMMANUEL ARMENDARIZ,

Appellant

v.

THE STATE OF TEXAS,

Appellee

On Appeal from

Court of Appeal Number 08-13-00125-CR

PETITION FOR DISCRETIONARY REVIEW

Veronica Teresa Lerma Eduardo N. Lerma, Sr. SBOT No. 24062846 SBOT No. 12221300 vtlerma@gmail.com enl1417@aol.com

1417 Montana Avenue Law Offices of Eduardo N. Lerma, Sr. El Paso, Texas 79902 1417 Montana Avenue Tel.: 915.533.4779 El Paso, Texas 79902 Fax: 915.533.7236 T: 915.533.0177 F: 915.533.7236

Attorneys for Appellant Emmanuel Armendariz

July 9, 2015

IDENTITY OF PARTIES AND COUNSEL

EMMANUEL ARMENDARIZ Appellant

Eduardo N. Lerma, Sr. Appellant’s Attorney at Trial and on Appeal 1417 Montana Avenue El Paso, Texas 79902

Veronica Teresa Lerma Appellant’s Attorney on Appeal 1417 Montana Avenue El Paso, Texas 79902

STATE OF TEXAS Appellee

Jaime Esparza Attorney for Appellee at Trial and on Appeal District Attorney 34th Judicial District SBOT No. 06666450

Penny J. Hamilton Attorney for Appellee at Trial SBOT No. 00793887 Assistant District Attorney

Lisa Lynn Clausen Attorney at Appellee Trial SBOT No. 24027931 Assistant District Attorney 500 E. San Antonio, 2nd Floor El Paso, Texas 79901 Tel. 915.546.2059 Fax. 915.533.5520

The Hon. Sam Medrano Trial Court 409th Judicial District Court

APPELLATE COURT The Hon. A. McClure, C.J., Presiding Justices Rodriguez and Hughes, JJ. Eighth Court of Criminal Appeals 500 E. San Antonio Street El Paso, Texas 79902

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TABLE OF CONTENTS

Identity of Parties and Counsel..................................................................................2 Table of Contents ......................................................................................................3 Index of Authorities ...................................................................................................4 Statement of the Case ................................................................................................5 Question Presented for Review .................................................................................6 The appellate court erred when it failed to apply the standard of review required for suppression issues in considering a totality of the circumstances analysis on whether Armendariz effectively waived his rights prior to providing a recorded statement.

Statement of Jurisdiction ...........................................................................................7 Statement of Fact and Procedural History .................................................................8 Grounds for Review ................................................................................................12 Summary of The Argument .....................................................................................13 Standard Of Review ................................................................................................14 Arguments And Authorities ....................................................................................16 I. The appellate court erred when it failed to apply the standard of review required for suppression issues in considering a totality of the circumstances analysis on whether Armendariz effectively waived his rights prior to providing a recorded statement.

Prayer .......................................................................................................................21 Certificate of Service ...............................................................................................22 Certificate of Compliance........................................................................................23

Appendix .................................................................................................................24

4

INDEX OF AUTHORITIES

FEDERAL CASES Fare v. Michael C., 442 U.S. 707 (1979) ................................................................ 18, 20 Johnson v. Zerbst, 304 U.S. 458 (1938) ........................................................................ 20 Miranda v. Arizona, 384 U.S. 436 (1966) ......................................................... 17, 18, 20 North Carolina v. Butler, 441 U.S. 369 (1979) ........................................................... ..20

STATE CASES Amador v. State, 221 S.W.3d 666 (Tex. Crim. App. 2007) ....................................15 Armendariz v. State, No. 08-13-00125-CR, 2015 WL 2174481, at *1 (Tex. App. – El Paso, May 8, 2015) ............................................... passim Gately v. State, 321 S.W.3d 72 (Tex. App. Eastland 2010) ....................................20 Guzman v. State, 955 S.W.2d 85 (Tex. Crim. App. 1997) ......................................15 Hill v. State, 429 S.W.2d 481 (Tex. Crim. App. 1968) ...........................................17 Joseph v. State, 309 S.W.3d 20 (Tex. Crim. App. 2010) ........................................18 Romero v. State, 800 S.W.2d 539 (Tex. Crim. App. 1990). ....................................15 State v. Elias, 08-08-00085-CR (Tex. App – El Paso 2012) .................................5, 6 State v. Elias, 339 S.W.3d 667 (Tex. Crim. App. 2011) .........................5, 13, 15, 18 State v. Kelly, 204 S.W.3d 808 (Tex. Crim. App. 2006) .........................................16 Watson v. State, 762 S.W.2d 591 (Tex. Crim. App. 1988) .....................................19 Wiede v. State, 214 S.W.3d 17 (Tex. Crim. App. 2007) .........................................15

RULES Tex. R. App. Proc. 66.3 ...........................................................................................13

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STATEMENT OF THE CASE1

Appellant Emmanuel Armendariz pled guilty to a two-count indictment

charging him with injury to a child and manslaughter.2 The trial court sentenced

Armendariz to three years confinement for each count, to run concurrent.3

On appeal, the Eighth Court of Appeals affirmed the trial court’s ruling on

Armendariz’s motion to suppress his recorded statement.4 The appellate court

issued an unpublished opinion in Armendariz v. State, No. 08-13-00125-CR, 2015

WL 2174481, at *1 (Tex. App. – El Paso, May 8, 2015). Armendariz appeals to the

Texas Court of Criminal Appeals by this Petition for Discretionary Review.

1 References to the record are cited as follows:

Original Clerk’s Record, is cited as “CR” with the pinpoint page number (CR page number);

Reporter’s Record (single-volume) is cited as “RR” with the pinpoint page number (RR page number), excerpts of cited portions of Reporter’s Record attached as Exhibit C in the Appendix.

2 Armendariz v. State, No. 08-13-00125-CR, 2015 WL 2174481, at *1 (Tex. App. – El Paso, May 8, 2015). 3 Id. 4 Id.

6

QUESTION PRESENTED FOR REVIEW

The appellate court erred when it failed to apply the standard of review required for suppression issues in considering a totality of the circumstances analysis on whether Armendariz effectively waived his rights prior to providing a recorded statement.

7

STATEMENT OF JURISDICTION

The Court of Criminal Appeals of Texas has jurisdiction over this appeal

pursuant to Rule 68 of the Texas Rules of Appellate Procedure.

8

STATEMENT OF FACT AND PROCEDURAL HISTORY

Nature of the Case.

Statement of Procedure

Appellant Emmanuel Armendariz pled guilty to a two-count indictment

charging him with injury to a child and manslaughter.5 The trial court sentenced

Armendariz to three years confinement for each count, to run concurrent.6

On appeal, the Eighth Court of Appeals affirmed the trial court’s ruling on

Armendariz’s motion to suppress his recorded statement.7 The appellate court

issued an unpublished opinion in Armendariz v. State, No. 08-13-00125-CR, 2015

WL 2174481, at *1 (Tex. App. – El Paso, May 8, 2015). Armendariz appeals to

the Texas Court of Criminal Appeals by this Petition for Discretionary Review.

Statement of Facts.

Armendariz picked up his two-year-old son from his mother-in-law before

noon on August 27, 2010.8 After arriving home, Appellant forgot his son was in

the truck and left him there while he prepared for an upcoming trip and ran some

errands with his father-in-law.9 Several hours later, Armendariz discovered his

5 Armendariz v. State, No. 08-13-00125-CR, 2015 WL 2174481, at *1 (Tex. App. – El Paso, May 8, 2015). 6 Id. 7 Id. 8 Id. 9 Armendariz v. State, No. 08-13-00125-CR, 2015 WL 2174481, at *1, 2 (Tex.

9

son was still in the truck.10 The child died.11 That evening around 9 p.m., the

police obtained a video-recorded statement.12

The trial court held a suppression hearing to determine, among other things,

whether Armendariz’s recorded statement should be suppressed.13 Following the

hearing, the trial court entered findings of fact and conclusions of law, including a

finding that when the police detective met with Armendariz to take his recorded

statement, “at the time the defendant was not under arrest.”14 The trial court

entered a related conclusion of law stating: “The Court finds that [Armendariz]

was not under arrest when he provided the recorded statement to Detective

Varela.”15

At the suppression hearing, Socorro Police Department Detective Javier

Varela testified he recorded the interrogation and testified that during interrogation

Armendariz was under arrest.16 Detective Varela was the only State’s witness

who testified to having any participation with the interrogation, the other

witnesses, Detective Rafael Chavez III and Detective Santibanez, of the El Paso

App. – El Paso, May 8, 2015). 10 Id. 11 Id. 12 Id. 13 Id. 14 Id. 15 Id. 16 2 RR 39:16-21.

10

Sherriff’s Department, did not testify to any participation in the interrogation.

Detective Varela testified he approached Armendariz to “mirandize him and

then take a statement from him” at the police substation17 “at 9:10 p.m. of that

same day”18 (referencing August 27, 2010). Shortly after the interrogation, the

El Paso Sherriff’s department took charge of the case.19

Facts and Conclusions of Law Before the Trial Court.

The trial court made the following pertinent findings of fact and conclusion

of law (in pertinent part):

5. The affidavit in support of probable cause to issue the warrant for the defendant’s home was based on information provided to Detective Chavez on August 27, 2010[,] from an investigation conducted by Socorro Police Department and The El Paso Sherriff’s Department in which the defendant provided a statement that he has left the deceased child in the vehicle after picking him up at his mother-in-laws house. The defendant stated that he was at Speaking Rock and then went to his mother-in-law's house. The defendant then went home and says he forgot the deceased child was in the vehicle. The father found the deceased child inside the vehicle at approximately 1800 hours. Evidence in plain view of the vehicle indicates the deceased child attempted to open the rear left door and window of the vehicle. [sic]

...

10. Detective Varela met with defendant Emmanuel Armendariz and at the time the defendant was not under arrest.

17 2 RR 32:1-9. 18 2 RR 36:23-25. 19 2 RR 37:8-10.

11

11. Detective Varela was in a room containing audio and video equipment. Emanuel Armendariz provided a statement to Detective Varela that was both audio and visually recorded.

12. Detective Varela read the defendant Emmanuel Armendariz his rights and asked if he was willing to waive his rights and speak with him. Defendant Emmanuel Armendariz elected to waive his rights and speak with Detective Varela.

...

LEGAL CONCLUSIONS

...

10. The [trial court] finds that Emmanuel Armendariz was not under arrest when he provided the recorded statement to Detective Varela.

11. The [trial court] finds that Emmanuel Armendariz intentionally, knowingly and voluntarily waived his rights when he provided the recorded statement to Detective Varela.

12. The [trial court] finds that the statement made by Emmanuel Armendariz was voluntary and complies with the provisions of Texas Code of Criminal Procedure Section 38.22.

13.

The [trial court] find that the arrest of the defendant Emmanuel Armendariz was pursuant to a valid arrest warrant.”20

20 CR 015-018.

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GROUNDS FOR REVIEW

The Eighth Court of Appeals decision conflicts with established Texas

Criminal Appeals Court precedent. Here, the appellate court’s resolution of the

suppression issue is not “based on the reality of what happened at the trial court

level, but rather on appellate assumptions that may be entirely fictitious.”21 The

Court of Criminal Appeals’ intervention is necessary to apply the appropriate

standard of review.

This Court should GRANT this petition for discretionary review because the

appellate court should afford almost total deference to a trial court’s determination

of the historical facts that the record supports.22

21 State v. Elias, 339 S.W.3d 667, 673-74 (Tex. Crim. App. 2011). 22 State v. Elias, 339 S.W.3d 667, 673-74 (Tex. Crim. App. 2011). See also Tex. R. App. Proc. 66.3.

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SUMMARY OF THE ARGUMENT

The appellate court erred when it failed to apply the standard of review

required for suppression issues in considering a totality of the circumstances

analysis on whether Armendariz effectively waived his rights prior to providing a

recorded statement.

The appellate court abused its discretion by failing to review the “totality of

the circumstances” or make a determination as to the requisite level of

Armendariz’s comprehension of his rights prior to waiver. The appellate court

conducted a limited review of the video entered into evidence and noted their

review of the video recording is “limited because in answering the issue of a

knowing and voluntary waiver, [the appellate court] must analyze Detective

Varela’s demeanor in asking the questions and [Armendariz’s] demeanor in

answering those questions.”23

23 Armendariz, 2015 WL 2174481, at *1.

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STANDARD OF REVIEW

An appellate court will review a trial court’s ruling on a motion to suppress

evidence under a bifurcated standard of review.24 The appellate court must view

the evidence in light most favorable to the trial court’s ruling.25 In reviewing the

trial court’s decision, the appellate court does not engage in its own factual

review.26 The trial judge is the sole trier of fact and judge of the credibility of the

witnesses and the weight to be given their testimony.27 The reviewing court,

therefore will give almost total deference to the trial court’s ruling on (1) questions

of historical fact, even if the trial court’s determination of those facts was not based

on an evaluation of credibility and demeanor; and, (2) application-of-law-to-fact

questions that turn on an evaluation of credibility and demeanor.28 But when

application-of-law-to-fact questions do not turn on the credibility and demeanor of

24 Amador v. State, 221 S.W.3d 666, 673 (Tex. Crim. App. 2007); Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim. App. 1997). 25 Wiede v. State, 214 S.W.3d 17, 24 (Tex. Crim. App. 2007). 26 Romero v. State, 800 S.W.2d 539, 543 (Tex. Crim. App. 1990). 27 Wiede, 214 S.W.3d at 24; Elias, 339 S.W.3d at 673 (“Upon request of the losing party on a motion to suppress evidence, the trial court shall state its ‘essential findings’ we mean ‘findings of fact and conclusions of law adequate to provide an appellate court with a basis upon which to review the trial court’s application of the law to the facts.” This requirement assures that appellate resolution of the suppression issue ‘is based on the reality of what happened [at the trial court level] rather than on [appellate] assumptions that may be entirely fictitious.’). 28 Amador, 221 S.W.3d at 673.

15

the witnesses, the trial court’s rulings on those questions are reviewed de novo.29

When the trial court makes explicit findings, the reviewing court will

determine whether the evidence, when viewed in the light most favorable to the

trial court’s ruling, supports those fact-findings.30

29 Id. 30 State v. Kelly, 204 S.W.3d 808, 818-819 (Tex. Crim. App. 2006).

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ARGUMENTS AND AUTHORITIES

I. The appellate court erred when it failed to apply the standard of review required for suppression issues in considering a totality of the circumstances analysis on whether Armendariz effectively waived his rights prior to providing a recorded statement.

The appellate court abused its discretion by failing to review the “totality of

the circumstances” or make a determination as to the requisite level of

Armendariz’s comprehension of his rights prior to waiver. The appellate court

conducted a limited review of the video entered into evidence and noted that their

review of the video recording is “limited because in answering the issue of a

knowing and voluntary waiver, [the appellate court] must analyze Detective

Varela’s demeanor in asking the questions and [Armendariz’s] demeanor in

answering those questions.”31

After review of the video, the appellate court found that “the totality of the

circumstances surrounding the interrogation shows [Armendariz’s] waiver was

voluntary. [Armendariz] nodded in the affirmative when asked whether he was

giving his statement of his own free will.”

It is the State’s burden of showing a defendant knowingly, intelligently, and

31 Armendariz, 2015 WL 2174481, at *1, 2.

17

voluntarily waived his Miranda rights.32 The standard is not to determine

whether there is an explicit waiver of the Miranda rights, but whether a person

does so knowingly, intelligently, and voluntarily.33 First, the relinquishment of

the right must be voluntary in the sense that it is the product of a free and

deliberate choice rather than intimidation, coercion, or deception. Second, the

waiver must have been made with full awareness of both the nature of the right

being abandoned and the consequences of the decision to abandon it.34 Only if

the “totality of the circumstances surrounding the interrogation” reveals both an

uncoerced choice and the requisite level of comprehension may a court properly

conclude the Miranda rights have been waived.35 The

“totality-of-the-circumstances approach” requires the consideration of “all the

circumstances surrounding the interrogation,” including the defendant’s

experience, background, and conduct.36

In the present case, Armendariz did not knowingly, intelligently, and

voluntarily waive his Miranda rights. Here, the appellate court’s resolution of the

suppression issue is not “based on the reality of what happened at the trial court

32 Miranda, 384 U.S. at 444; Hill v. State, 429 S.W.2d 481, 486 (Tex. Crim. App. 1968). 33 Joseph v. State, 309 S.W.3d 20 (Tex. Crim. App. 2010). 34 Moran v. Burbine, 475 U.S. 412, 421 (1986); Joseph, 309 S.W.3d at 25. 35 Moran, 475 U.S. at 421; Joseph, 309 S.W.3d at 25 (quoting Fare v. Michael C., 442 U.S. 707, 725 (1979)). 36 Joseph, 309 S.W.3d at 25.

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level, but rather on appellate assumptions that may be entirely fictitious.”37 The

appellate court assumes:

“[W]e can assume the trial court concluded that there was nothing about Detective Varela’s tone or manner that was so overbearing as to render [Armendariz’s] statement involuntary. Further, we can assume the trial court concluded that [Armendariz’s] demeanor indicated that he understood what was going on and knowingly and intelligently waived his rights.”38

In its totality of the circumstances analysis, the appellate court stands on

assumptions for which it does not have a factual basis.

At the suppression hearing, the State entered into evidence the recorded

statement. In that recorded statement, Armendariz does not verbally

acknowledge he understood his rights,39 rather the questions continue by the

police interrogator.40 Nor was there any written acknowledgement entered into

evidence such as a written waiver or Miranda card. Of course, waivers can be

express or implied,41 but “a valid waiver will not be presumed simply from the

silence of the accused after warnings are given or simply from the fact that a

confession was in fact eventually obtained.”42 The question to determine if an

37 State v. Elias, 339 S.W.3d 667, 673-74 (Tex. Crim. App. 2011). 38 Armendariz, 2015 WL 2174481, at *1 (emphasis added). 39 2 RR 41:12-24. 40 Id. 41 Watson v. State, 762 S.W.2d 591, 601 (Tex. Crim. App. 1988). 42 Miranda, 384 U.S. at 475.

19

accused waived his Miranda rights is not whether he made an explicit waiver, but

whether he did so knowingly, intelligently, and voluntarily.43 The State did not

prove that Armendariz possessed the requisite level of comprehension prior to

waiver.

Other circumstances demonstrate the coercive nature of Armendariz’s

recorded statement. For instance, the police interrogator conducted the

interrogation on the same date, only hours from when Armendariz learned his child

died. Armendariz’s state of mind to make such a waiver and understand his

decision only hours from learning his child died is severely coercive in nature.

Armendariz, during this period of time, was not free to leave the police station and,

according to Detective Varela, Armendariz was under arrest.44

The appellate court must inquire into the totality of the circumstances

surrounding the interrogation, to ascertain whether the accused in fact knowingly

and voluntarily decided to forego his rights to remain silent and to have the

assistance of counsel.45 There is a heavy burden upon the State to demonstrate

waiver,46 and any evidence that the accused was threatened, tricked, or cajoled into

43 Gately v. State, 321 S.W.3d 72 (Tex. App. Eastland 2010). 44 2 RR 39:16-23. 45 Fare v. Michael C., 442 U.S. at 725,. see North Carolina v. Butler, 441 U.S. 369, 374-375 (1979); Johnson v. Zerbst, 304 U.S. 458, 464 (1938). 46 See Miranda, 384 U.S at 475.

20

a waiver will . . . show that a defendant did not voluntarily waive his privilege.47

The stark and disturbing facts show that Armendariz was relatively inexperienced,

grieving, and in an emotional state of mind. These factors demonstrate how

easily experienced police offices can overbear a citizen’s free will and the

significant risk it poses.

The appellate court was without the benefit of such findings and without

guidance to make a totality of circumstances review. The trial court’s findings of

fact are devoid of any totality of the circumstances inquiry, and the State failed to

prove an effective waiver.

After assessing its own limited review, the appellate court abused its

discretion in failing to consider the totality of the circumstances. This Court

should reverse the trial court’s ruling and reform the trial court’s judgment.

47 Id. at 476.

21

PRAYER

Because the appellate court erred in its review, Appellant Emmanuel

Armendariz seeks that this Court reverse the appellate court’s decision, and reverse

the appellate court’s judgment. Appellant Armendariz respectfully requests this

Court to GRANT review of his petition.

Respectfully submitted

/s/ Eduardo N. Lerma, Sr. Eduardo N. Lerma, Sr. SBOT No. 12221300 enl1417@aol.com

Law Offices of Eduardo N. Lerma 1417 Montana Avenue El Paso, Texas 79902-5016 Tel.: (915) 533-0177 Fax: (915) 533-7236

Veronica Teresa Lerma SBOT No. 24062846 vtlerma@gmail.com 1417 Montana Avenue El Paso, Texas 79902-5016 Tel.: (915) 533-4779 Fax: (915) 533-7236 Attorneys for Appellant

Emmanuel Armendariz

22

CERTIFICATE OF SERVICE

I certify that on July 8, 2015, a true and correct copy of Appellant’s Petition

for Discretionary Review was served on counsel as listed below pursuant to Texas

Rule of Appellate Procedure 9.5.

Jaime E. Esparza, District Attorney 500 E. San Antonio, Ste. 201 El Paso, TX 79901 via personal delivery

State Prosecuting Attorney P.O. Box 12405 Austin, Texas 78711 via regular first-class mail

Emmanuel Armendariz

via personal delivery

/s/ Eduardo N. Lerma, Sr. Eduardo N. Lerma, Sr. SBOT No. 12221300 enl1417@aol.com

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CERTIFICATE OF COMPLIANCE

I certify that this document was produced on a computer using Microsoft

Mac 2012 and contains 1660 words, as determined by the computer software’s

word-count function, excluding the sections of the document listed in Texas Rule

of Appellate Procedure 9.4(i)(1). A brief and response filed in the court of

appeals must not exceed 15,000 words. TRAP 9.1(i)(2)(B).

The parts of the documents that are excluded are:

[1] The caption [2] The identity of parties and counsel. [3] The statement regarding oral argument. [4] The table of contents. [5] The index of authorities. [6] The statement of the case. [7] The statement of the issues presented. [8] The statement of jurisdiction. [9] The statement of procedural history. [10] The signature block [11] The proof of service [12] The certification. [13] The certificate of compliance. [14] The appendix

The Font used in this document is Times New Roman, and the size of the

font for the body and footnote is 14.

/s/ Veronica Teresa Lerma Veronica Teresa Lerma Texas Bar No. 24062846 Attorney for Appellant

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APPENDIX

Exhibit A: Armendariz v. State, No. 08-13-00125-CR, 2015 WL 2174481, at *1 (Tex. App. – El Paso, May 8, 2015).

Exhibit B: Trial Court’s Findings of Fact and Conclusions of Law.

Exhibit C: Selected Reporter’s Record Excerpts

Exhibit D: Judgment and Opinion by the Court of Appeals, Eighth District

Exhibit E: Judgment and Conviction by the trial court

Exhibit A

Armendariz v. State, No. 08-13-00125-CR 2015 WL 2174481, at *1 (Tex. App. – El Paso, May 8, 2015).

P a g e | 25

Armendariz v. State, Not Reported in S.W.3d (2015)

manslaughter. The trial court sentenced 2015 WL 2174481 Appellant to three years' confinement for Only the Westlaw citation each count, to run concurrently. Appellant is currently available. appeals the trial court's refusal to suppress his recorded statement. He asserts the SEE TX R RAP RULE 47.2 trial court erroneously found that he was FOR DESIGNATION AND not in custody at the time he provided SIGNING OF OPINIONS. his recorded statement, and complains the trial court failed to conduct a totality-

(DO NOT PUBLISH) of-the-circumstances review and hold the Court of Appeals of Texas, State to its burden to prove he effectively El Paso. waived his rights. We conclude there is no reversible error and affirm.

Emmanuel Armendariz, Appellant, v.

The State of Texas, Appellee.

BACKGROUND

No. 08–13–00125– CR | May 8, 2015 Appellant picked up his two-year-old son from his mother-in-law before noon on Appeal from the 409th District Court of El August 27, 2010. After arriving home, Paso County, Texas (TC#20100D06116) Appellant forgot his son was in the truck and left him there while he prepared for an Attorneys and Law Firms upcoming trip to Las Vegas and ran some errands with his father-in-law. Several Eduardo N. Lerma, for Emmanuel hours later, Appellant discovered his son Armendariz.

was still in the truck. The child had died.

John L. Davis, Jaime E. Esparza, for The That evening around 9 p.m., Appellant State of Texas. provided a video-recorded statement to the police.

Before McClure, C.J., Rodriguez, and Hughes, JJ. The trial court held a suppression hearing to determine, among other things, whether Appellant's recorded statement should be suppressed. Following the hearing, the OPINION

trial court entered findings of fact and STEVEN L. HUGHES, Justice conclusions of law, including a finding that when the police detective met with *1 Appellant Emmanuel Armendariz Appellant to take his recorded statement, pleaded guilty to a two-count indictment “at the time the defendant was not charging him with injury to a child and under arrest.” The court entered a related

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 1

Armendariz v. State, Not Reported in S.W.3d (2015)

conclusion of law stating: “The Court on the credibility and demeanor of finds that [Appellant] was not under arrest witnesses. Alford, 358 S.W.3d at 652. when he provided the recorded statement However, if credibility and demeanor to Detective Varela.” Ultimately, the are not necessary to the resolution of trial court concluded “that Emmanuel a mixed question of law and fact, Armendariz intentionally, knowingly and we review the question de novo. See voluntarily waived his rights when id.; Young v. State, 283 S.W.3d 854, he provided the recorded statement to 873 (Tex.Crim.App.2009). This same Detective Varela[,]” and that Appellant's deferential standard of review applies to recorded statement was voluntary and a trial court's determination of historical “complies with the provisions of Texas facts, demeanor, and credibility even Code of Criminal Procedure Section when that determination is based on a 38.22.” video recording. State v. Duran, 396 S.W.3d 563, 570 (Tex.Crim.App.2013). The trial court's ruling will be upheld if it is reasonably supported by the record DISCUSSION

and is correct under any theory of law applicable to the case. Ramos, 245 S.W.3d Standard of Review at 418.

We review a trial court's ruling refusing to suppress evidence for an abuse of discretion. Crain v. State, 315 S.W.3d Finding and Conclusion that 43, 48 (Tex.Crim.App.2010); Ramos Appellant was Not Under Arrest v. State, 245 S.W.3d 410, 417–18 *2 In Issue One, Appellant contends the (Tex.Crim.App.2008). In reviewing the trial court abused its discretion in finding trial court's decision, we review the and concluding he was not under arrest evidence in the light most favorable to when he gave his recorded statement.

the trial court's ruling. State v. Kelly, 204 S.W.3d 808, 818 (Tex.Crim.App.2006).

At the suppression hearing, Detective We afford almost total deference to a Varela of the Socorro Police Department trial court's determination of historical testified that Appellant was under arrest facts, but review pure questions of law at the time he took Appellant's recorded de novo. Alford v. State, 358 S.W.3d statement. Detective Chavez of the El 647, 652 (Tex.Crim.App. 2012); see Paso Sheriff's Department also testified Montanez v. State, 195 S.W.3d 101, that Appellant was under arrest at the 109 (Tex.Crim.App.2006). Likewise, we Socorro Police station when he first give almost total deference to a trial contacted Appellant. Moreover, Detective court's resolution of mixed questions of Chavez's partner, Detective Santibanez, law and fact if those questions turn testified Appellant was under arrest when

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 2

Armendariz v. State, Not Reported in S.W.3d (2015)

he arrived at the Socorro Police station record, we do not defer to those findings. after 9 p.m. Despite this testimony, the See Garcia v. State, 919 S.W.2d 370, trial court entered a finding of fact 379 (Tex.Crim.App.1994) (deference not that when Detective Varela met with given to trial court's suppression-hearing Appellant, he “was not under arrest,” findings that were not supported by record and entered a conclusion of law that on appeal); Derichsweiler v. State, 301 Appellant “was not under arrest when S.W.3d 803, 812 (Tex.App.–Fort Worth he provided the recorded statement to 2009) (trial court's finding of fact after Detective Varela.” The trial court also suppression hearing was not supported concluded Appellant's recorded statement by the record and was not entitled was voluntary and complied with Article to deference), rev'd on other grounds, 38.22 of the Texas Code of Criminal 348 S.W.3d 906 (Tex.Crim.App.2011). Procedure. Because there is no evidence to support the trial court's finding and conclusion that Appellant was not under arrest at the time he provided his oral statement, Analysis

we give the finding and conclusion no The State concedes the trial court's legal deference. conclusion that Appellant was “not under arrest” has no basis in the record and The real question then is the impact, is without support. We agree with the if any, of this erroneous finding and State there is no basis in the record for conclusion. Appellant's reasoning is hard the finding and conclusion that Appellant to follow in this regard, but it hinges was not under arrest when he gave his on Article 38.22 and its requirements. 1 statement. Detectives Varela, Chavez, and Appellant appears to contend that because Santibanez each testified that Appellant Article 38.22 applies only to statements was under arrest when they met with him. made as a result of a custodial interrogation, 2 the trial court's finding The State also argues, however, that and conclusion that he was not under the trial court's erroneous finding is not arrest at the time he gave his statement dispositive; it is merely entitled to no somehow conflict with the trial court's deference. We agree. Normally if the conclusion that his recorded statement court's findings are supported by the was voluntary and complied with Article record, we are not at liberty to disturb 38.22. Appellant apparently asserts that them, and we will only address whether this conflict somehow invalidates the trial the trial court improperly applied the court's conclusion that he knowingly and law to the facts. State v. Wood, 828 voluntarily waived his rights. On this S.W.2d 471, 474 (Tex.App.–El Paso basis, Appellant requests that we reverse 1992, no pet.). When, however, a trial and reform the judgment. court's findings are not supported by the

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 3

Armendariz v. State, Not Reported in S.W.3d (2015)

*3 We are at a loss to see how and to hold the State to its burden to prove the trial court's determination had any he effectively waived his rights. effect on Appellant's rights. If Appellant was in custody, he was entitled to At the suppression hearing, Detective all the protections provided by Article Varela testified he advised Appellant of 38.22, and his recorded statement was his rights during Appellant's recorded admissible only if it was made knowingly statement, and that Appellant indicated and voluntarily. But, even if Appellant that he understood his rights and agreed to was not in custody, he was still waive them. Detective Varela explained entitled to a determination whether that he did not threaten or coerce his statement was voluntary, since the Appellant to provide a statement nor mandate in Article 38.22 that statements promise Appellant anything in return. be voluntary applies to both an accused's Detective Varela stated that Appellant did custodial and noncustodial statements. not appear to be under the influence of any Oursbourn v. State, 259 S.W.3d 159, 171 drug or alcohol at the time of his recorded (Tex.Crim.App.2008). statement, and that Appellant never asked for an attorney or that the interview be In any event, we conclude that because stopped. Appellant was never denied the the uncontroverted evidence establishes use of a restroom, or food, or cigarettes. Appellant was under arrest at the time of his statement, he was entitled to the Appellant's recorded statement was Article 38.22 protections. Consequently, admitted into evidence for purposes of the there is no conflict with the trial court's suppression hearing. The recording shows conclusion that Appellant's recorded Detective Varela informing Appellant statement was voluntary and complies he is going to read him his rights with Article 38.22. Appellant is not and asking Appellant to inform him if entitled to reversal or reformation of he has any questions about his rights. the judgment. We simply proceed to In response, Appellant nods his head determine if the evidence supports the up and down. Detective Varela then trial court's conclusion that Appellant's proceeds to inform Appellant of his right statement was made voluntarily. to remain silent and that anything he says can be used against him, and the video shows Appellant indicating his understanding of this right by nodding his Knowing, Intelligent,

head in assent and stating “yeah.” When and Voluntary Waiver

Varela informs Appellant of his right In Issue Two, Appellant contends the trial to counsel and to have counsel present court erroneously failed to consider the during questioning, Appellant interrupts totality of the circumstances in its review and asks “What are you guys doing right now?” Detective Varela explains they

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 4

Armendariz v. State, Not Reported in S.W.3d (2015)

will soon be talking about the case but “I can't answer you that.” After another that now he is reading Appellant his lengthy narrative from Appellant, Officer rights “so that that way you'll know”; Juarez explains: “We've ... pretty much Appellant again interjects “But you guys asked you whatever questions we needed are going to start asking questions, right?” to find out. Is there something that you Appellant states, “I mean, there's nothing think we need to know ... something wrong but I'm just saying, I don't want that we haven't asked? Something you to say something that's going to fuck may want to say at this time?” Appellant my shit up.” Detective Varela responds shakes his head back and forth in the that he understands and explains “What negative, and the interview is concluded. I want to know is if you understand The entire recorded interview lasted that right to counsel.” Appellant nods slightly under fifteen minutes. During this his head up and down, and states “I time, Appellant never requested counsel understand.” Detective Varela continues and never asked that the interview be the warnings and informs Appellant of stopped. During the interview, Appellant his right to have an attorney appointed is seated and not restrained in any prior to questioning if Appellant is unable way. Appellant and the officers speak to afford an attorney. Appellant again in English, and on a few occasions, affirmatively nods his head up and down. Appellant uses Spanish terminology. When Detective Varela asks Appellant whether he understands that he can stop the interview at any time if he decides Limited Review of Video Recording to answer questions without an attorney, Appellant nods his head up and down, We note that our review of the video puts his head in hands, and answers, “Yes, recording in particular is somewhat sir.” Finally, when Appellant is asked limited because in answering the issue of whether he is making this statement “out a knowing and voluntary waiver, we must of your own free will,” Appellant again analyze Detective Varela's demeanor in affirmatively nods his head up and down. asking the questions and Appellant's demeanor in answering those questions.

*4 Appellant then proceeds to respond The trial court concluded from its review to questions about the incident, often of the video recording that Appellant's speaking in the narrative for extended waiver was voluntary. And we can assume periods of time, so much so that Detective the trial court concluded that there was Varela at times informs Appellant “I nothing about Detective Varela's tone or might stop and ask you some questions.” manner that was so overbearing as to At one point, after speaking in the render Appellant's statement involuntary. narrative for a time, Appellant asks, Further, we can assume the trial court “What do I do now?” The other officer concluded that Appellant's demeanor in the room, Officer Juarez, responds, indicated that he understood what was

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 5

Armendariz v. State, Not Reported in S.W.3d (2015)

going on and knowingly and intelligently Barefield v. State, 784 S.W.2d 38, 40– waived his rights. We are required to give 41 (Tex.Crim.App.1989)(noting that the almost total deference to the trial court's oral confession statute does not require determination of demeanor even when an “express verbal statement from an that determination is based on a video accused that he waives his rights prior recording. See Duran, 396 S.W.3d at 570. to giving the statement”), overruled on Applying this “almost total deference” other grounds, Zimmerman v. State, 860 standard, we conclude that the trial court S.W.2d 89, 94 (Tex.Crim.App.1993). did not abuse its discretion in finding and Rather, a waiver of one's Article 38.22 concluding that Appellant's statement was rights may be “ ‘inferred from the actions knowingly, intelligently, and voluntarily and words of the person interrogated.’ ” given. Joseph, 309 S.W.3d at 24–25 (quoting North Carolina v. Butler, 441 U.S. 369, 373, 99 S.Ct. 1755, 60 L.Ed.2d 286 (1979)). But that waiver must still be Analysis

knowingly, intelligently, and voluntarily As a general rule, a determination made. Joseph, 309 S.W.3d at 25. whether a statement was voluntarily rendered is analyzed by examining the *5 In evaluating whether a waiver is totality of the circumstances. Arizona knowingly, intelligently, and voluntarily v. Fulminante, 499 U.S. 279, 285–86, made, we employ a two-part test, asking: 111 S.Ct. 1246, 1252, 113 L.Ed.2d 302 (1) whether the relinquishment of the right (1991); see Delao v. State, 235 S.W.3d was voluntary by determining whether it 235, 239 (Tex.Crim.App.2007). It is the was the product of a free and deliberate State's burden to show that a defendant choice rather than intimidation, coercion, knowingly, intelligently, and voluntarily or deception; and (2) whether the waiver waived his rights under Miranda v. was made with full awareness of the Arizona, 384 U.S. 436, 444–45, 86 S.Ct. nature of the rights being abandoned and the consequences of the decision 1602, 1612, 16 L.Ed.2d 694 (1966), 3 to abandon it. Id. at 25 (citing Moran and Article 38.22 of the Texas Code of v. Burbine, 475 U.S. 412, 421, 106 Criminal Procedure. Joseph v. State, 309 S.Ct. 1135, 89 L.Ed.2d 410 (1986)).

S.W.3d 20, 24 (Tex.Crim.App.2010).

“Only if the ‘totality of the circumstances surrounding the interrogation’ reveal both In this regard, the Court of Criminal an uncoerced choice and the requisite Appeals has reiterated “ ‘that neither level of comprehension may a court a written nor an oral express waiver properly conclude that the Miranda rights is required’ ” before a statement is have been waived.” Moran, 475 U.S.

admissible under the mandates of Article at 421. In reviewing the totality of 38.22. Id. (quoting Watson v. State, 762 the circumstances, we may consider the S.W.2d 591, 601 (Tex.Crim.App.1988));

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 6

Armendariz v. State, Not Reported in S.W.3d (2015)

defendant's background, experience, and We also conclude that the totality of the conduct. Joseph, 309 S.W.3d at 25 (citing circumstances demonstrates Appellant's Fare v. Michael C., 442 U.S. 707, 725, 99 waiver was made with full awareness S.Ct. 2560, 61 L.Ed.2d 197 (1979)). of both the nature of the rights being abandoned and the consequences of the The totality of the circumstances decision to abandon them. Appellant was surrounding the interrogation shows given all the required warnings mandated Appellant's waiver was voluntary. by Article 38.22, including that Appellant Appellant nodded in the affirmative when was not required to say anything and asked whether he was giving his statement could stop the interview at any time, and of his own free will. Immediately after after each question Appellant was asked Detective Varela informed Appellant of if he understood his rights. Appellant his rights, Appellant repeatedly indicated consistently answered in the affirmative, that he understood those rights and either by nodding his head up and immediately and willingly participated down or through an affirmative statement in the fifteen-minute interrogation. In indicating his understanding. Appellant fact, Appellant was eager to tell then freely answered all the questions his story, forcing Detective Varela posed, and provided extensive narratives to advise Appellant he may have to on occasion without any prompting for interrupt Appellant to pose questions. him to do so. With the exception of a few The recording shows that Appellant never Spanish terms uttered by Appellant, all asked to stop the interrogation. At the questions, answers, and narratives were suppression hearing, Detective Varela stated in English. testified that he did not threaten or coerce Appellant's statement, nor promise As the Court of Criminal Appeals anything to Appellant in return. Further, noted in Joseph, “[t]he warnings read the record does not show any evidence of to Appellant made him fully aware of intimidation or coercion, such as resorting the rights set forth in Miranda and to physical or psychological pressure to Article 38.22, as well as the consequences elicit statements, or making promises of abandoning those rights.” Joseph, that could have possibly jeopardized the 309 S.W.3d at 27 (citations omitted). voluntariness of Appellant's statement. By indicating his understanding of The parties remained calm throughout the rights and then freely answering the entire interrogation process, and the questions without ever asking the Appellant freely explained the events of interview to cease, Appellant's conduct the day, how he found his son, and why undoubtedly demonstrated his awareness he thought he had forgotten about his son of his rights and his knowing waiver in his truck. of those rights. Based on the totality of the circumstances, the trial court could reasonably infer a knowing waiver from

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 7

Armendariz v. State, Not Reported in S.W.3d (2015)

Appellant's words and actions. Both the the testimony from the hearing and the testimony at the suppression hearing content of Appellant's recorded statement. and the recorded interview establish that Appellant knowingly, intelligently, and The recorded statement contained the voluntarily waived his rights. requisite warnings informing Appellant of his rights, and the record *6 Appellant contends the trial court demonstrates that Appellant knowingly, did not conduct a totality-of-the- intelligently, and voluntarily waived circumstances review and asserts that those rights. Consequently, Appellant's the trial court did not enter a proper recorded statement was admissible, and finding. We observe, however, that the the trial court did not abuse its trial court indicated it was going to review discretion in denying Appellant's motion the recorded interrogation carefully to suppress. Issues One and Two are and then included among its legal overruled. conclusions “that Emmanuel Armendariz intentionally, knowingly and voluntarily waived his rights when he provided the CONCLUSION recorded statement to Detective Varela [,]” and “that the statement made by The trial court's judgment is affirmed. Emmanuel Armendariz was voluntary and complies with the provisions of Texas Code of Criminal Procedure Section All Citations 38.22.” This demonstrates that in making Not Reported in S.W.3d, 2015 WL its decision, the trial court considered both 2174481

Footnotes 1 Article 38.22 provides that no oral statement of an accused made as a result of a custodial interrogation shall be admissible against the accused in a criminal proceeding unless certain requirements have been satisfied, including that prior to the statement, but during the recording, the accused is given his Miranda warnings and the accused knowingly, intelligently, and voluntarily waives those rights. See TEX.CODE CRIM.PROC.ANN. art. 38.22, §§ 2(a), 3 (West Supp. 2014).

2 Article 38.22 applies only to oral statements made as a result of a custodial interrogation. TEX.CODE CRIM.

PROC.ANN. art. 38.22, § 3; see also id. at § 5 (nothing in Article 38.22 precludes the admission of a statement “that does not stem from custodial interrogation”).

3 “Prior to any questioning, the person must be warned 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. The defendant may waive effectuation of these rights, provided the waiver is made voluntarily, knowingly and intelligently. If, however, he indicates in any manner and at any stage of the process that he wishes to consult with an attorney before speaking there can be no questioning. Likewise, if the individual is alone and indicates in any manner that he does not wish to be interrogated, the police may not question him. The mere fact that he may have answered some questions or volunteered some statements on his own does not deprive him of the right to refrain from answering any further inquiries until

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 8

Armendariz v. State, Not Reported in S.W.3d (2015)

he has consulted with an attorney and thereafter consents to be questioned.” Miranda, 384 U.S. at 444– 45, 86 S.Ct. at 1612.

End of Document © 2015 Thomson Reuters. No claim to original U.S. Government Works.

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 9

Exhibit B

Trial Court’s Findings of Fact and Conclusions of Law.

P a g e | 26

- ··---·- - - - - - - - -- - - -----..

' ·-··•I '\.•

IN THE 409TH DISTRICT COURT t .·.~: . • J ·-..: ..'\

EL PASO COUNTY, TEXAS ··· ~~. · ? fl ~i :::J ')'1 t ' ~ •.~ .. ,, t_ I

THE STATE OF TEXAS § §

vs. § §

EMMANUEL ARMENDARIZ §

FINDINGS OF FACT AND CONCLUSIONS OF LAW

FACTUAL FINDINGS

I. The defendant was charged by indictment with manslaughter and injury to a child December 15, 2010, in El Paso County, Texas. 2. El Paso Sheriff Department Detective Rafael Chavez III prepared applications for search warrants for Manny Malique Armendariz. . 3. The search warrant for the vehicle was issued by Judge David Bonilla on September 2, 2010 and authorized both the search of the 1996 Nissan Pathfinder bearing Texas registration V68FK.R, VIN #:JN8AR05Y1TW028713, and the seizure of Latent prints from the interior and exterior of the vehicle; Biological evidence to include bodily fluids from the interior and exterior of the vehicle; DNA swabbings; Narcotics/Narcotic Paraphemelia; Photographs of the vehicle. 4. The search warrant for the vehicle was executed on September 4, 2010. The items seized at that location were: Baby car seat; Red 'BeBe' sweater with possible vomit stains; Baby white sock; Rolling Zig-Zag papers; Two packets with white Mexican brand pills; White envelope with card and a one folded dollar bill with white powdery substance; grey shirt with possible vomit stains; empty liquor bottle; Baby white NIKE shoes; DNA swab of left rear door interior; DNA swab ofleft rear door window interior; DNA swab ofleft rear floorboard; DNA swab of right rear door window interior; DNA swab right rear door window interior; Latent palm print from left rear interior window; Latent prints from right rear interior window; Photograph of adult female and male child; Photographs of interior and exterior of vehicle. 5. The affidavit in support of probable cause to issue the warrant for the defendant's home was based on information provided to Detective Chavez on August 27, 2010 from an investigation conducted by Socorro Police Department and The El Paso Sherriff's Department in which the defendant provided a statement that he had left the deceased child in the vehicle after picking him up at his mother-in-laws house. The defendant stated that he was at Speaking Rock and then went to his mother-in-laws house to pick up the deceased child. The defendant then went home and says he forgot the deceased child was in the vehicle. The deceased child was found inside the vehicle by the father at

oc 015

approximately 1800 hours. Evidence in plain view ofthe vehicle indicates the deceased child attempted to open the rear left door and window of the vehicle.

6. The search warrant for Manny Malique Annendariz, date of birth 10/16/07 was issued by Judge David Bonilla on September 2, 20 l 0.

7. The search warrant Manny Malique Annendariz was executed on September 2, 2010. The items seized at that location were: Right hand palm print; Left hand palm print; Fingerprints of right hand.

8. The affidavit in support of probable cause to issue the warrant for the defendant's home was based on information provided to Detective Chavez on August 27,2010 from an investigation conducted by Socorro Police Department and The El Paso Sherriff s Department in which the defendant provided a statement that he had left the deceased child in the vehicle after picking him up at his mother-in-laws house. The defendant stated that he was at Speaking Rock and then went to his mother-in-laws house to pick up the deceased child. The defendant then went home and says he forgot the deceased child was in the vehicle. The deceased child was found inside the vehicle by the father at approximately 1800 hours. A palm print and smeared fmgerprints were located in the interior of the rear left window of the vehicle the defendant stated he had left the deceased child in.

9. A written consent to search person and remove body substances was obtained by Detective Louis Santibanez from the defendant on August 27, 2010.

10. Detective Varela met with defendant Emmanuel Armendariz and at the time the defendant was not under arrest.

I 1. Detective Vare! a was in a room containing audio and video equipment.

Emmanuel Armendariz provided a statement to Detective Varela that was both audio and visually recorded.

12. Detective Varela read the defendant Emmanuel Armendariz his rights and asked if he was willing to waive his rights and speak with him. Defendant Emmanuel Armendariz elected to waive his rights and speak with Detective Varela.

13. The State and the defense have agreed to not use any evidence collected from the residence.

14. The State and the defense have agreed not to use blood draw evidence. J5. The State and the defense have agreed not to use any statements made by the defendant prior to the DVD statement made to Detective Varela.

16. Detective Chavez testified at the motion to suppress hearing on April 8, 201 1 that he obtained the search warrants for the vehicle and Manny Malique Armendariz.

17. Detective Santibanez testified at the motion to suppress hearing on AprilS, 20 t 1 that he obtained the written consent to search person and remove body substances from the defendant on August 27,2010.

18. Detective Varela testified in the motion to suppress hearing on AprilS, 201 I that he and Officer Juarez were present when the recorded statement from the defendant was obtained on August 27, 2010.

19. The defendant Emmanuel Armendariz was arrested pursuant to warrant number Ml OW7083 for the offense of Injury to a Child on the 28th day of August, 2010.

LEGAL CONCLUSIONS 1. The Court has reviewed the application and affidavit for the search warrant for the vehicle. The Court finds that sufficient probable cause existed for the issuance of the search warrant for the vehicle.

2. The Court finds that the search warrant for the vehicle is not a general search warrant and it complies with Article \8.0\ of the TEXAS CODE OF CRIMINAL PROCEDURE.

3. The Court finds that the search warrant for the vehicle falls under both Article 18.02 (9) and Article 18.02 (10) ofthe TEXAS CODE OF CRIMINAL PROCEDURE.

4. The Court finds that Judge David Bonilla was authorized to issue the search warrant for the vehicle as the judge of a statutory created court; The El Paso Criminal Law Magistrate Court.

5. The Court has reviewed the application and affidavit for the search warrant for Manny Malique Armendariz. The Court fmds that sufficient probable cause existed for the issuance of the search warrant for Manny Mali que Armendariz.

6. The Court finds that the search warrant for Manny Malique Annendariz is not a general search warrant and it complies with Article 18.01 of the TEXAS CODE OF CRIMINAL PROCEDURE.

7. The Court finds that the search warrant for Manny Malique Armendariz falls under both Article 18.02 (9) and Article 18.02 (10) of the TEXAS CODE OF CRIMINAL PROCEDURE.

8. The Court finds that Judge David Bonilla was authorized to issue the search warrant for the vehicle as the judge of a statutory created court; The El Paso Criminal Law Magistrate Court.

9. The Court finds that the searches of the vehicle and Manny Mali que Annendariz were pursuant to valid warrants and were legal.

l 0. The Court fmds that Emmanuel Armendariz was not Wlder arrest when he provided the recorded statement to Detective Varela.

11. The Court finds that Emmanuel Armendariz intentionally, knowingly and voluntarily waived his rights when he provided the recorded statement to Detective Varela.

I 2. The Court finds that the statement made by Emmanuel Armendariz was voluntary and complies with the provisions of Texas Code of Criminal Procedure Section 38.22.

13. The Court finds that the arrest of the defendant Emmanuel Armendariz was pursuant to a valid arrest warrant.

:.,.; f' I') L'

1,1"'.:_ 7

· ~-------------------------------------------------

Signed on this the ;) 7 day of April, 2012

cF7fz2 Honorable Sam Medrano Judge 409th Judicial District

~ ..... ·.; \.'

f,'J..._• 8

Exhibit D.l

Court's Notice of Defendant's Right to Appeal

Exhibit C

Selected Reporter’s Record Excerpts

P a g e | 27

1 REPORTER'S RECORD VOLUME 2 OF 5 VOLUMES

2 COURT OF APPEALS CAUSE NUMBER 08-13-00125-CR TRIAL COURT CAUSE NO. 20100D06116 3

4 THE STATE OF TEXAS ) IN THE DISTRICT COURT

5 )

6 )

7 )

8 vs. )

9 ) EL PASO COUNTY, TEXAS

10 )

11 )

12 EMMANUEL ARMENDARIZ )

13 )

14 ) 409TH JUDICIAL DISTRICT

15

16 ---------------------------------------

17 MOTION TO SUPPRESS

18 ---------------------------------------

19 On the 8th day of April, 2011, the following

20 proceedings came on to be heard in the above-entitled

21 and numbered cause before the Honorable SAM MEDRANO,

22 JR., Judge presiding, held in El Paso, El Paso County,

23 Texas:

24 Proceedings reported by machine shorthand utilizing

25 computer-assisted realtime transcription.

NATALIE A. MARTINEZ; OFFICIAL COURT REPORTER 409TH DISTRICT COURT; 500 E. SAN ANTONIO, RM. 459 EL PASO, TX 79901 (915) 834-8209

32

1 Q. Where did you first have contact with him?

2 A. At our substation.

3 Q. What was the purpose of your contact with the

4 defendant?

5 A. Initially to Mirandize him and then take a

6 statement from him.

7 Q. So am I understanding you gave him his Miranda

8 rights?

9 A. Yes.

10 Q. And did you, in fact, take a statement from the

11 defendant?

12 A. Yes.

13 Q. Do you see the individual that you took the

14 statement from in the courtroom today?

15 A. Yes.

16 Q. Can you please point to him and identify

17 something he is wearing?

18 A. The gentleman to my right wearing the striped

19 shirt -- blue with red stripes.

20 MS. CLAUSEN: May the record reflect that

21 the witness has identified the defendant?

22 THE COURT: Yes, ma'am.

23 Q. (BY MS. CLAUSEN) Where did you meet with him?

24 Was it in an office or was it just out with everybody

25 else?

NATALIE A. MARTINEZ; OFFICIAL COURT REPORTER 409TH DISTRICT COURT; 500 E. SAN ANTONIO, RM. 459 EL PASO, TX 79901 (915) 834-8209

36

1 A. No.

2 Q. To your knowledge was he under the influence of

3 any narcotic drug or alcohol to where he could not

4 communicate with you or could not understand you?

5 A. No.

6 Q. To your knowledge was the vehicle ever

7 searched?

8 A. No.

9 MS. CLAUSEN: Pass the witness.

10 THE COURT: Mr. Lerma.

11 MR. LERMA: Yes, Your Honor. Thank you.

12 CROSS-EXAMINATION

13 BY MR. LERMA:

14 Q. What time did you -- state your name again,

15 sir.

16 A. Javier Varela.

17 Q. And where are you employed?

18 A. Socorro Police Department.

19 Q. Did you respond initially at 1803 -- to the

20 alleged crime scene?

21 A. I was at home so initially I go to the station

22 to pick up my unit and then I head out to the scene.

23 Q. And when was it -- what specific time did you

24 interrogate Mr. Armendariz?

25 A. 9:10 p.m. of that same day.

NATALIE A. MARTINEZ; OFFICIAL COURT REPORTER 409TH DISTRICT COURT; 500 E. SAN ANTONIO, RM. 459 EL PASO, TX 79901 (915) 834-8209

37

1 Q. Is this before the sheriff's department got

2 there?

3 A. Yes, sir.

4 Q. And you were the only one present during the

5 interrogation?

6 A. No, sir. There was -- Officer Juarez was in

7 the same room during the interrogation.

8 Q. After you finished your interrogation did the

9 sheriff's department then take over the case?

10 A. Shortly after, yes, sir.

11 Q. Why was that, sir?

12 A. I would not know. That's determined by our

13 chief of police.

14 Q. Is there some type of policy that the sheriff's

15 department takes over a major crime -- incident?

16 MS. CLAUSEN: Object to relevance,

17 Your Honor.

18 THE COURT: Overruled. Answer if you

19 know.

20 A. I don't know the exact policy. I do know that

21 in certain types of cases they are called out to assist

22 us. In some cases they take the case.

23 Q. Who called the sheriff's department?

24 A. I would not know.

25 Q. So it could have been your chief?

NATALIE A. MARTINEZ; OFFICIAL COURT REPORTER 409TH DISTRICT COURT; 500 E. SAN ANTONIO, RM. 459 EL PASO, TX 79901 (915) 834-8209

39

1 A. It just varies on the case. I mean, it's not

2 for every type of case. Like I said, it's not a

3 specific criteria that I know of, but I investigate the

4 case and if somebody in our management decides then they

5 call the sheriff.

6 Q. Do you feel you have the capacity to

7 investigate this type of case?

8 MS. CLAUSEN: Objection, relevance.

9 THE COURT: Sustained.

10 Q. (BY MR. LERMA) Were you present during the

11 blood draw?

12 A. No, sir.

13 Q. In fact you didn't participate in that, did

14 you, sir?

15 A. No, sir.

16 Q. So that your only participation was that you

17 interrogated him and you videotaped the interrogation?

18 A. Yes, sir.

19 Q. And all during this time Mr. Armendariz was

20 under arrest?

21 A. Yes, sir, he was detained.

22 Q. Was he under arrest?

23 A. Yes.

24 MR. LERMA: That's all I have, Your Honor.

25 THE COURT: Any other questions?

NATALIE A. MARTINEZ; OFFICIAL COURT REPORTER 409TH DISTRICT COURT; 500 E. SAN ANTONIO, RM. 459 EL PASO, TX 79901 (915) 834-8209

44

1 STATE OF TEXAS )

2 COUNTY OF EL PASO )

3

4 I, Natalie A. Martinez, Official Court Reporter in

5 and for the 409th District Court of El Paso County,

6 State of Texas, do hereby certify that the above and

7 foregoing contains a true and correct transcription of

8 all portions of evidence and other proceedings requested

9 in writing by counsel for the parties to be included in

10 this volume of the Reporter's Record, in the

11 above-styled and numbered cause, all of which occurred

12 in open court or in chambers and were reported by me.

13 I further certify that this Reporter's Record of

14 the proceedings truly and correctly reflects the

15 exhibits, if any, offered by the respective parties.

16 I further certify that the total cost for the

17 preparation of this Reporter's Record is $ and was

18 paid/will be paid by .

19 WITNESS MY OFFICIAL HAND this the day of

20 _ , 2013.

21

22

23 NATALIE MARTINEZ, Texas CSR# 8352 24 409th District Court El Paso, TX 79901 (915) 834-8209 25 Expires: December 31, 2014

NATALIE A. MARTINEZ; OFFICIAL COURT REPORTER 409TH DISTRICT COURT; 500 E. SAN ANTONIO, RM. 459 EL PASO, TX 79901 (915) 834-8209

Exhibit D

Judgment and Opinion by the Court of Appeals, Eighth District

P a g e | 28

COURT OF APPEALS EIGHTH DISTRICT OF TEXAS

EL PASO, TEXAS

EMMANUEL ARMENDARIZ, § No. 08-13-00125-CR

Appellant, § Appeal from the

v. § 409th District Court

THE STATE OF TEXAS, § of El Paso County, Texas

Appellee. § (TC#20100D06116)

§

JUDGMENT

The Court has considered this cause on the record and concludes there was no error in the

judgment. We therefore affirm the judgment of the court below. This decision shall be certified

below for observance.

IT IS SO ORDERED THIS 8TH DAY OF MAY, 2015.

STEVEN L. HUGHES, Justice

Before McClure, C.J., Rodriguez, and Hughes, JJ.

COURT OF APPEALS EIGHTH DISTRICT OF TEXAS

EL PASO, TEXAS

EMMANUEL ARMENDARIZ, § No. 08-13-00125-CR

Appellant, §

Appeal from the

v. § 409th District Court

THE STATE OF TEXAS, § of El Paso County, Texas

Appellee. §

(TC#20100D06116)

§

OPINION

Appellant Emmanuel Armendariz pleaded guilty to a two-count indictment charging him

with injury to a child and manslaughter. The trial court sentenced Appellant to three years’

confinement for each count, to run concurrently. Appellant appeals the trial court’s refusal to

suppress his recorded statement. He asserts the trial court erroneously found that he was not in

custody at the time he provided his recorded statement, and complains the trial court failed to

conduct a totality-of-the-circumstances review and hold the State to its burden to prove he

effectively waived his rights. We conclude there is no reversible error and affirm.

BACKGROUND

Appellant picked up his two-year-old son from his mother-in-law before noon on August

2

27, 2010. After arriving home, Appellant forgot his son was in the truck and left him there while

he prepared for an upcoming trip to Las Vegas and ran some errands with his father-in-law.

Several hours later, Appellant discovered his son was still in the truck. The child had died. That

evening around 9 p.m., Appellant provided a video-recorded statement to the police.

The trial court held a suppression hearing to determine, among other things, whether

Appellant’s recorded statement should be suppressed. Following the hearing, the trial court

entered findings of fact and conclusions of law, including a finding that when the police detective

met with Appellant to take his recorded statement, “at the time the defendant was not under arrest.”

The court entered a related conclusion of law stating: “The Court finds that [Appellant] was not

under arrest when he provided the recorded statement to Detective Varela.” Ultimately, the trial

court concluded “that Emmanuel Armendariz intentionally, knowingly and voluntarily waived his

rights when he provided the recorded statement to Detective Varela[,]” and that Appellant’s

recorded statement was voluntary and “complies with the provisions of Texas Code of Criminal

Procedure Section 38.22.”

DISCUSSION

Standard of Review

We review a trial court’s ruling refusing to suppress evidence for an abuse of discretion.

Crain v. State, 315 S.W.3d 43, 48 (Tex.Crim.App. 2010); Ramos v. State, 245 S.W.3d 410, 417–18

(Tex.Crim.App. 2008). In reviewing the trial court’s decision, we review the evidence in the light

most favorable to the trial court’s ruling. State v. Kelly, 204 S.W.3d 808, 818 (Tex.Crim.App.

2006). We afford almost total deference to a trial court’s determination of historical facts, but

review pure questions of law de novo. Alford v. State, 358 S.W.3d 647, 652 (Tex.Crim.App.

2012); see Montanez v. State, 195 S.W.3d 101, 109 (Tex.Crim.App. 2006). Likewise, we give

almost total deference to a trial court’s resolution of mixed questions of law and fact if those

questions turn on the credibility and demeanor of witnesses. Alford, 358 S.W.3d at 652.

However, if credibility and demeanor are not necessary to the resolution of a mixed question of

law and fact, we review the question de novo. See id.; Young v. State, 283 S.W.3d 854, 873

(Tex.Crim.App. 2009). This same deferential standard of review applies to a trial court’s

determination of historical facts, demeanor, and credibility even when that determination is based

on a video recording. State v. Duran, 396 S.W.3d 563, 570 (Tex.Crim.App. 2013). The trial

court’s ruling will be upheld if it is reasonably supported by the record and is correct under any

theory of law applicable to the case. Ramos, 245 S.W.3d at 418.

Finding and Conclusion that Appellant was Not Under Arrest

In Issue One, Appellant contends the trial court abused its discretion in finding and

concluding he was not under arrest when he gave his recorded statement.

At the suppression hearing, Detective Varela of the Socorro Police Department testified

that Appellant was under arrest at the time he took Appellant’s recorded statement. Detective

Chavez of the El Paso Sheriff’s Department also testified that Appellant was under arrest at the

Socorro Police station when he first contacted Appellant. Moreover, Detective Chavez’s partner,

Detective Santibanez, testified Appellant was under arrest when he arrived at the Socorro Police

station after 9 p.m. Despite this testimony, the trial court entered a finding of fact that when

Detective Varela met with Appellant, he “was not under arrest,” and entered a conclusion of law

that Appellant “was not under arrest when he provided the recorded statement to Detective

Varela.” The trial court also concluded Appellant’s recorded statement was voluntary and

4

complied with Article 38.22 of the Texas Code of Criminal Procedure.

Analysis

The State concedes the trial court’s legal conclusion that Appellant was “not under arrest”

has no basis in the record and is without support. We agree with the State there is no basis in the

record for the finding and conclusion that Appellant was not under arrest when he gave his

statement. Detectives Varela, Chavez, and Santibanez each testified that Appellant was under

arrest when they met with him.

The State also argues, however, that the trial court’s erroneous finding is not dispositive; it

is merely entitled to no deference. We agree. Normally if the court’s findings are supported by

the record, we are not at liberty to disturb them, and we will only address whether the trial court

improperly applied the law to the facts. State v. Wood, 828 S.W.2d 471, 474 (Tex.App. – El Paso

1992, no pet.). When, however, a trial court’s findings are not supported by the record, we do not

defer to those findings. See Garcia v. State, 919 S.W.2d 370, 379 (Tex.Crim.App. 1994)

(deference not given to trial court’s suppression-hearing findings that were not supported by

record on appeal); Derichsweiler v. State, 301 S.W.3d 803, 812 (Tex.App. –Fort Worth 2009)

(trial court’s finding of fact after suppression hearing was not supported by the record and was not

entitled to deference), rev’d on other grounds, 348 S.W.3d 906 (Tex.Crim.App. 2011). Because

there is no evidence to support the trial court’s finding and conclusion that Appellant was not

under arrest at the time he provided his oral statement, we give the finding and conclusion no

deference.

The real question then is the impact, if any, of this erroneous finding and conclusion.

Appellant’s reasoning is hard to follow in this regard, but it hinges on Article 38.22 and its

5

requirements.1 Appellant appears to contend that because Article 38.22 applies only to statements

made as a result of a custodial interrogation,2 the trial court’s finding and conclusion that he was

not under arrest at the time he gave his statement somehow conflict with the trial court’s

conclusion that his recorded statement was voluntary and complied with Article 38.22. Appellant

apparently asserts that this conflict somehow invalidates the trial court’s conclusion that he

knowingly and voluntarily waived his rights. On this basis, Appellant requests that we reverse

and reform the judgment.

We are at a loss to see how the trial court’s determination had any effect on Appellant’s

rights. If Appellant was in custody, he was entitled to all the protections provided by Article

38.22, and his recorded statement was admissible only if it was made knowingly and voluntarily.

But, even if Appellant was not in custody, he was still entitled to a determination whether his

statement was voluntary, since the mandate in Article 38.22 that statements be voluntary applies to

both an accused’s custodial and noncustodial statements. Oursbourn v. State, 259 S.W.3d 159,

171 (Tex.Crim.App. 2008).

In any event, we conclude that because the uncontroverted evidence establishes Appellant

was under arrest at the time of his statement, he was entitled to the Article 38.22 protections.

Consequently, there is no conflict with the trial court’s conclusion that Appellant’s recorded

statement was voluntary and complies with Article 38.22. Appellant is not entitled to reversal or

reformation of the judgment. We simply proceed to determine if the evidence supports the trial

1 Article 38.22 provides that no oral statement of an accused made as a result of a custodial interrogation shall be admissible against the accused in a criminal proceeding unless certain requirements have been satisfied, including that prior to the statement, but during the recording, the accused is given his Miranda warnings and the accused knowingly, intelligently, and voluntarily waives those rights. See TEX.CODE CRIM.PROC.ANN. art. 38.22, §§ 2(a), 3 (West Supp. 2014). 2 Article 38.22 applies only to oral statements made as a result of a custodial interrogation. TEX.CODE CRIM. PROC.ANN. art. 38.22, § 3; see also id. at § 5 (nothing in Article 38.22 precludes the admission of a statement “that does not stem from custodial interrogation”).

court’s conclusion that Appellant’s statement was made voluntarily.

Knowing, Intelligent, and Voluntary Waiver

In Issue Two, Appellant contends the trial court erroneously failed to consider the totality

of the circumstances in its review and to hold the State to its burden to prove he effectively waived

his rights.

At the suppression hearing, Detective Varela testified he advised Appellant of his rights

during Appellant’s recorded statement, and that Appellant indicated that he understood his rights

and agreed to waive them. Detective Varela explained that he did not threaten or coerce

Appellant to provide a statement nor promise Appellant anything in return. Detective Varela

stated that Appellant did not appear to be under the influence of any drug or alcohol at the time of

his recorded statement, and that Appellant never asked for an attorney or that the interview be

stopped. Appellant was never denied the use of a restroom, or food, or cigarettes.

Appellant’s recorded statement was admitted into evidence for purposes of the suppression

hearing. The recording shows Detective Varela informing Appellant he is going to read him his

rights and asking Appellant to inform him if he has any questions about his rights. In response,

Appellant nods his head up and down. Detective Varela then proceeds to inform Appellant of his

right to remain silent and that anything he says can be used against him, and the video shows

Appellant indicating his understanding of this right by nodding his head in assent and stating

“yeah.” When Varela informs Appellant of his right to counsel and to have counsel present

during questioning, Appellant interrupts and asks “What are you guys doing right now?”

Detective Varela explains they will soon be talking about the case but that now he is reading

Appellant his rights “so that that way you’ll know”; Appellant again interjects “But you guys are

7

going to start asking questions, right?” Appellant states, “I mean, there’s nothing wrong but I’m

just saying, I don’t want to say something that’s going to fuck my shit up.” Detective Varela

responds that he understands and explains “What I want to know is if you understand that right to

counsel.” Appellant nods his head up and down, and states “I understand.” Detective Varela

continues the warnings and informs Appellant of his right to have an attorney appointed prior to

questioning if Appellant is unable to afford an attorney. Appellant again affirmatively nods his

head up and down. When Detective Varela asks Appellant whether he understands that he can

stop the interview at any time if he decides to answer questions without an attorney, Appellant

nods his head up and down, puts his head in hands, and answers, “Yes, sir.” Finally, when

Appellant is asked whether he is making this statement “out of your own free will,” Appellant

again affirmatively nods his head up and down.

Appellant then proceeds to respond to questions about the incident, often speaking in the

narrative for extended periods of time, so much so that Detective Varela at times informs

Appellant “I might stop and ask you some questions.” At one point, after speaking in the

narrative for a time, Appellant asks, “What do I do now?” The other officer in the room, Officer

Juarez, responds, “I can’t answer you that.” After another lengthy narrative from Appellant,

Officer Juarez explains: “We’ve . . . pretty much asked you whatever questions we needed to find

out. Is there something that you think we need to know . . . something that we haven’t asked?

Something you may want to say at this time?” Appellant shakes his head back and forth in the

negative, and the interview is concluded. The entire recorded interview lasted slightly under

fifteen minutes. During this time, Appellant never requested counsel and never asked that the

interview be stopped. During the interview, Appellant is seated and not restrained in any way.

Appellant and the officers speak in English, and on a few occasions, Appellant uses Spanish

terminology.

Limited Review of Video Recording

We note that our review of the video recording in particular is somewhat limited because in

answering the issue of a knowing and voluntary waiver, we must analyze Detective Varela’s

demeanor in asking the questions and Appellant’s demeanor in answering those questions. The

trial court concluded from its review of the video recording that Appellant’s waiver was voluntary.

And we can assume the trial court concluded that there was nothing about Detective Varela’s tone

or manner that was so overbearing as to render Appellant’s statement involuntary. Further, we

can assume the trial court concluded that Appellant’s demeanor indicated that he understood what

was going on and knowingly and intelligently waived his rights. We are required to give almost

total deference to the trial court’s determination of demeanor even when that determination is

based on a video recording. See Duran, 396 S.W.3d at 570. Applying this “almost total

deference” standard, we conclude that the trial court did not abuse its discretion in finding and

concluding that Appellant’s statement was knowingly, intelligently, and voluntarily given.

Analysis

As a general rule, a determination whether a statement was voluntarily rendered is

analyzed by examining the totality of the circumstances. Arizona v. Fulminante, 499 U.S. 279,

285–86, 111 S.Ct. 1246, 1252, 113 L.Ed.2d 302 (1991); see Delao v. State, 235 S.W.3d 235, 239

(Tex.Crim.App. 2007). It is the State’s burden to show that a defendant knowingly, intelligently,

and voluntarily waived his rights under Miranda v. Arizona, 384 U.S. 436, 444-45, 86 S.Ct. 1602,

9

1612, 16 L.Ed.2d 694 (1966), 3 and Article 38.22 of the Texas Code of Criminal Procedure.

Joseph v. State, 309 S.W.3d 20, 24 (Tex.Crim.App. 2010).

In this regard, the Court of Criminal Appeals has reiterated “‘that neither a written nor an

oral express waiver is required”’ before a statement is admissible under the mandates of Article

38.22. Id. (quoting Watson v. State, 762 S.W.2d 591, 601 (Tex.Crim.App. 1988)); Barefield v.

State, 784 S.W.2d 38, 40-41 (Tex.Crim.App. 1989)(noting that the oral confession statute does not

require an “express verbal statement from an accused that he waives his rights prior to giving the

statement”), overruled on other grounds, Zimmerman v. State, 860 S.W.2d 89, 94 (Tex.Crim.App.

1993). Rather, a waiver of one’s Article 38.22 rights may be “‘inferred from the actions and

words of the person interrogated.’” Joseph, 309 S.W.3d at 24-25 (quoting North Carolina v.

Butler, 441 U.S. 369, 373, 99 S.Ct. 1755, 60 L.Ed.2d 286 (1979)). But that waiver must still be

knowingly, intelligently, and voluntarily made. Joseph, 309 S.W.3d at 25.

In evaluating whether a waiver is knowingly, intelligently, and voluntarily made, we

employ a two-part test, asking: (1) whether the relinquishment of the right was voluntary by

determining whether it was the product of a free and deliberate choice rather than intimidation,

coercion, or deception; and (2) whether the waiver was made with full awareness of the nature of

the rights being abandoned and the consequences of the decision to abandon it. Id. at 25 (citing

Moran v. Burbine, 475 U.S. 412, 421, 106 S.Ct. 1135, 89 L.Ed.2d 410 (1986)). “Only if the

3 “ Prior to any questioning, the person must be warned 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. The defendant may waive effectuation of these rights, provided the waiver is made voluntarily, knowingly and intelligently. If, however, he indicates in any manner and at any stage of the process that he wishes to consult with an attorney before speaking there can be no questioning. Likewise, if the individual is alone and indicates in any manner that he does not wish to be interrogated, the police may not question him. The mere fact that he may have answered some questions or volunteered some statements on his own does not deprive him of the right to refrain from answering any further inquiries until he has consulted with an attorney and thereafter consents to be questioned.” Miranda, 384 U.S. at 444-45, 86 S.Ct. at 1612.

‘totality of the circumstances surrounding the interrogation’ reveal both an uncoerced choice and

the requisite level of comprehension may a court properly conclude that the Miranda rights have

been waived.” Moran, 475 U.S. at 421. In reviewing the totality of the circumstances, we may

consider the defendant’s background, experience, and conduct. Joseph, 309 S.W.3d at 25 (citing

Fare v. Michael C., 442 U.S. 707, 725, 99 S.Ct. 2560, 61 L.Ed.2d 197 (1979)).

The totality of the circumstances surrounding the interrogation shows Appellant’s waiver

was voluntary. Appellant nodded in the affirmative when asked whether he was giving his

statement of his own free will. Immediately after Detective Varela informed Appellant of his

rights, Appellant repeatedly indicated that he understood those rights and immediately and

willingly participated in the fifteen-minute interrogation. In fact, Appellant was eager to tell his

story, forcing Detective Varela to advise Appellant he may have to interrupt Appellant to pose

questions. The recording shows that Appellant never asked to stop the interrogation. At the

suppression hearing, Detective Varela testified that he did not threaten or coerce Appellant’s

statement, nor promise anything to Appellant in return. Further, the record does not show any

evidence of intimidation or coercion, such as resorting to physical or psychological pressure to

elicit statements, or making promises that could have possibly jeopardized the voluntariness of

Appellant’s statement. The parties remained calm throughout the entire interrogation process,

and Appellant freely explained the events of the day, how he found his son, and why he thought he

had forgotten about his son in his truck.

We also conclude that the totality of the circumstances demonstrates Appellant’s waiver

was made with full awareness of both the nature of the rights being abandoned and the

consequences of the decision to abandon them. Appellant was given all the required warnings

11

mandated by Article 38.22, including that Appellant was not required to say anything and could

stop the interview at any time, and after each question Appellant was asked if he understood his

rights. Appellant consistently answered in the affirmative, either by nodding his head up and

down or through an affirmative statement indicating his understanding. Appellant then freely

answered all the questions posed, and provided extensive narratives on occasion without any

prompting for him to do so. With the exception of a few Spanish terms uttered by Appellant, all

questions, answers, and narratives were stated in English.

As the Court of Criminal Appeals noted in Joseph, “[t]he warnings read to Appellant made

him fully aware of the rights set forth in Miranda and Article 38.22, as well as the consequences of

abandoning those rights.” Joseph, 309 S.W.3d at 27 (citations omitted). By indicating his

understanding of the rights and then freely answering the questions without ever asking the

interview to cease, Appellant’s conduct undoubtedly demonstrated his awareness of his rights and

his knowing waiver of those rights. Based on the totality of the circumstances, the trial court

could reasonably infer a knowing waiver from Appellant’s words and actions. Both the

testimony at the suppression hearing and the recorded interview establish that Appellant

knowingly, intelligently, and voluntarily waived his rights.

Appellant contends the trial court did not conduct a totality-of-the-circumstances review

and asserts that the trial court did not enter a proper finding. We observe, however, that the trial

court indicated it was going to review the recorded interrogation carefully and then included

among its legal conclusions “that Emmanuel Armendariz intentionally, knowingly and voluntarily

waived his rights when he provided the recorded statement to Detective Varela[,]” and “that the

statement made by Emmanuel Armendariz was voluntary and complies with the provisions of

Texas Code of Criminal Procedure Section 38.22.” This demonstrates that in making its decision,

the trial court considered both the testimony from the hearing and the content of Appellant’s

recorded statement.

The recorded statement contained the requisite warnings informing Appellant of his rights,

and the record demonstrates that Appellant knowingly, intelligently, and voluntarily waived those

rights. Consequently, Appellant’s recorded statement was admissible, and the trial court did not

abuse its discretion in denying Appellant’s motion to suppress. Issues One and Two are

overruled.

CONCLUSION

The trial court’s judgment is affirmed.

STEVEN L. HUGHES, Justice May 8, 2015

Before McClure, C.J., Rodriguez, and Hughes, JJ.

(Do Not Publish)

Exhibit E

Judgment and Conviction by the trial court

P a g e | 29

CASE No. 201 OOD06116 couNT I of II INCIDENT NO.ITRN: 9051930852

§

IN THE 409TH JUDICIAL DISTRICT THE STATE OF TEXAS COURT

§

v. § §

Armendariz, Emmanuel § EL PASO COUNTY, TEXAS §

STATE ID No.: 07021556 §

JUDGMENT OF CONVICTION BY COURT-WAIVER OF JURY TRIAL Date Judgment

Judge Presiding: HON. SAM MEDRANO JR. 04/12/lS Entered: Attorney for

Attorney for State: PENNY HAMILTON Defendant: EDUARDO LERMA Offen&e for which Defendant Convicted: INJ CHILD/ELDERLY/DISABLED RECKLESS BIIMENTAL Charging Instrument: Statute for Offense: INDICTMENT 22.04 (E) PC Date of Offense: 08/27/10 Degree of Offen~~e: Plea to Offense: Findings on Deadly Weapon: 2nd Degree Felony GUILTY N/A Terms of Plea Bargain: STATE'S RECOMMENDATION Plea to 1'' Enhancement Plea to 2nd Enhancement/Habitual Paragraph: N/A Paragraph: N/A Findings on 1•1 Enhancement Findings on 2•d Paragraph: N/A Enhancement/Habitual Paragr~tph : N/A Date Sentence Imposed: 04125/lS Date Sentence to Commence: 04125/13 Punishment and Place of Confinement:

THREE (3) YEARS INSTITUTIONAL DIVISION, TDCJ THIS SENTENCE SHALL RUN N/A D SENTENCE OF CONFINEMENT SUSPENDED, DEFENDANT PLACED ON COMMUNITY SUPERVISION FOR NIA.

Fjno: Court Costs: Restitution; Restitution Payable to; N/A $N/A $231.00 0 VICTIM (see below) 0 AGENCY/AGENT (see below)

Sex Offender Registration Requirements do not apply to the Defendant. TEX. CODE CittM. PROC. chapter 62 The age of the victim at the time of the offense was N/A_ If Defendant is to serve sentence in TDCJ, onter incar-.E!ration pl!rio<H in chronologie&[ order.

Timo From 08128110 to 08128110 From 06/13/11 to 06/24/11 Credited: ~ndant i3 to serve sentence ip county jail or i11 given credit towM.II...fiM and C0318. enter d!IVR credited below.

N/A DAYS NOTES: N/A All partillelll illfolnUition, uame• a~~od ...uomeuh iud lc:ated above are incorporated !11to \be la PJUAI'e of tho j11d1'ntent belo,. by retorea<:e.

This cause was called for trial in El Paso County, Texas. The State appeared by her District Attorney_ Counsel/ Waiver o{ Counsel be!ect one)

l2l Defendant appeared in person with CounseL 0 Defendant knowingly, intelligently, and voluntarily waived the right to representation by counsel in writing in open court.

r - - - -- - - - - - - -- - -- - - ------ - - - -

Both parties announced ready for trial. Defendant waived the right of trial by jury and entered the plea indicated above.

The Col.lrt then admonished Defendant as required by law. It appeared to the Court that Defendant was mentally competent to etand trial, made the plea freely and voluntarily, and was aware of the consequences of this plea. The Court received the plea and entered it of record. Having heard the evidence submitted, the Court found Defendant guilty of the offense indicated above. In the presence of Defendant, the Court pronounced sentence against Defendant.

The Court FINDs Defendant committed the above offense and ORDERS. ADJUDGES AND DECREES that Defendant is GUlLTY of the above offense. The Court FINDS thtt Presentence lnvesti,ation, if eo ordered, was done according to the applicable provisions of TEX. CODE CR!M. PROC. art. 42.12 § 9.

The Court ORDERS Defendant punished as indicated above. The Court O:aDERS Defendant to pay all fine11, court costs, alld restitution as indicated above.

Punishment Options (select one)

f2l Confinement in State Jail or Institutional Division. The Court ORDERS tbe authorized agent of the State of Texas or the Sheriff of this County to ta.lte, safely convey, and deliver Defendant to the Director, lnstitutionaJ Div!aion, TDCJ. The Court ORDERS Defendant to be confined for the period and in the manner indicated above. The Court ORDERS Defendant remanded to the custody of the Sheriff of thie county until the Sheriff can obey the directions of this sentence. The Court ORDBRS that upon release from confinement, Defendant proceed immediately to the Institutional Dlvisjon, TDCJ. Once there, the Court ORDERS Defendant to pay, or make arranrements to pay, any remaining unpaid fines, court costa, and restitution as ordered by the Court above. 0 County Jail-Confinement I Confinement in Lieu of Payment. The Court OBDERB Defendant immediately committed to the custody of the Sheriff of El Paso County, Texas on the date the sentence is to commence. Defendant shall be confined in the El Pat~o County Detention Facility for the period indicated above. The Court 01\DBRS that upon release from confinement, Defendant shall proceed immediately to the El Paso County Detention Facility. Once there, the Court ORDERS Defendant to pay, or make arrangements to pay, any remaining unpaid fines, court costs, and restitution as ordered by the Court above. 0 Fine Only Payment. The punishment assesaed against Defendant is for a JI'INE ONLY. The Court ORDERS Defendant to proceed immediately to the Office of the El Paso County Collectiona Department. Once there, the Court ORDERS Defendant to pay or make arrangements to pay all fines and court costs as ordered by the Court in thia cause.

Executfog I Suspension of Sentence (select one)

l:8l The Court ORDERS Defendant's sentence EXECU'l'ED. 0 The Court ORDERS Defendant's ~ntence of confinement SUSPENDED. The Court ORDERS Defendant placed on community supervision for the adjudged period (above) so long as Defendant abides by and does not violate the tsrms and conditions of community supervision. The order setting forth the terms and conditions of community supervision is incorporated into this judgment by reference.

The Court ORDERS that Defendant is given credit noted above on this sentence for the time spent incarcerated.

Furthermore. the following special finding!! or orders apply;

Counts I and J1 to run concurrent.

Signed and entered on 04/ X/ I 2013

JUDGE PRESIDING

Right Thumbprint Clerk: FWsemary Cru>:

t"';l ~(j

t'J'(2

'-'

ie CASE NO. 20100006116 COUNT II ofll INCIDENT NO.ITRN: N/A

lN THE 409TH JUDICIAL DISTRICT THE STATE OF TEXAS § COURT

§

v. § §

Armendariz, Emmanuel § EL PASO COUNTY, TExAS §

STAT~ lD NO.: 07021556 §

JUDGMENT OF CONVICTION BY COURT-WAIVER OF JURY TRIAL Date Judcment

Judge Presiding: HoN. SAM MEDRANO JR. 04/12118 Entered: Attorney for

Attorney for State: PENNY HAMILTON Defendant:

EDUARDO LERMA

Offen§e for which Defepdant Convicted: MANSLAUGHTER Chaminc Instrument; Statute for Otfen88; INDICTMENT 19.04 PC Date of Offense: 08/27/10 Degrt?e of Offense; Plea to Offen!H!: Findinca on Deadly Weapon: 2nd Degree Felony GUILTY N/A Torms of Plea Bargain: STATE'S RECOMMENDATION Plea to 1" Enhancement Plea to 2"d Enhancement/Habitual Parap-aph: N/A ParaJI'apb: N/A Findings on 1" Enhancemeot Findincs on 2•d Paragraph: NIA EnhancementJHabitual ParaiJ'aph: N/A Date Sentence Imposed: 04/26/13 Date Sentence to Commence: 04125/13 Purushment and Place of Confinement:

THREE (3) YEARS INSTITUTIONAL DMSION, TDCJ THIS SENTENCE SHALL RUN N/A 0 SENTENCE OF CONFiNEMENT SUSPENDED. DEFENDANT PLACED ON COMMUNITY SUPERVISION FOR N/A.

Fine: Court Costa; Restitution Payable t.o:

Restitution:

N/A $231.00 $N/A 0 VICTIM (see below) 0 AGENCY/AGENT (see bolow) Sex Offender Reaistrat.lon Requirement& do not apply to the Defendant. TEX. ConK CRIM. PROC. chapter 62 The age of the victim at the time of the offense wae NIA.

If Def~tndi!Qt je to !I!!Tve Mntence in TQCJ. enter incarcerMtjun neriode in chronolociC!II order From 08/28/10 to 08/28110 From 06/13/11 to 06/24/11 Time Credited: If Defendant " to aerve snwm:e jn county jaU or ja ¥inn cl'l!djt toward fine and coKtv enter doya credited below.

N/A DAYS NOTES: N/A All p•rtlneDt iaformation,narnee otnd ......,.,.au indicated above are incorporated into thelaa&ua&e ohhejudrmeat below by refuenc~.

This cause was called for trial in El Paso County, Texu. The State appeared by her District Attorney. Counsel I Walyer of Counsel (solgqt one)

~ Defendant appeared in person with Counsel. 0 Defendant knowinJiy, intellicently, and voluntarily wajved the right to representation by countcl in writing in open court.

· - - - -·- -·- - - ·------·-

Both parties announced ready for trial. Defendant waived the right of trial by jury and entered the plea indicated above.

The Court then admonished Defendant as required by law. It appeared to the Court that Defendant was mentally competent to stand trial, made the plea freely and voluntarily, and waa aware of the consequences of this plea. The Court received the plea and entered it of record . Raving heard the evidence submitted, the Court found Defendant guilty ofthe offense indicated above. In the presence of Defendant, the Court pronounced sentence against Defendant.

The Court FINDS Defendant committed the above offense and ORDERS, ADJUDGES AND DECREES that Defendant is GUlLTY of the above offense. The Court FINDS the Presentence Investigation, if so ordered, waa done accordinc to the applicable provisions of TEX. CoDE CRIM. PRo c. art. 42.12 § 9.

The Court ORDERS Defendant punished as indicated above. The Court ORDERS Defendant to pay all fines, court costa, and restitution as indicated above.

Punithment Options (seJect one)

~ Confinement in State Jail or Institutional Division. The Court ORDERS the authorized &ient of the State of Texas or the Sheriff of this County to take, safely convey, and deliver Defendant to the Director, Institutional Division, TDCJ. The Court ORDERS Defendant to be confined for the period and in the manner i11dicated above. The Court ORDIIKS Defendant remanded to the custody of the Sheriff of this county until the She-riff can obey the directions of thia sentence. The Court O&DERS that upon release from confinement, Defendant proceed immediately to the Institutional Division, TDCJ. Once there, the Court ORDERS Defendant to pay, or make arranrements to pay, any remaining unpaid fines, court costs, and restitution as ordered by the Court above. 0 County Jail-Confinement I Confinement in Lieu of Payment. The Court ORDERS Defendant immediately committed to the cuetody of the Sheriff of El Pa.o County, Texu on the date the sentence is to commence. Defendant shall be confined in the El Paso County Detention Facility for the period indicated above. The Court ORDERS that upon release from confinement, Defendant shall proceed immediately to the El Paso County Detention Facility, Once there, the Court 0Rl>ERS Defendant to pay, or make arrangements to pay, any remaining unpaid fines, court costs, and restitution as ordered by the Court above. 0 Fine Only Payment. The punishment assessed against Defendant is for a FINE ONLY. The Court ORDERS Defendant to proceed immediately to the Office of the El Paso County Collections Department. Once there, the Court ORDERS Defendant to pay or make arrangement& to pay all fines and court costs as ordered by the Court in this cause.

Execution I Susvension of Sentence (select one)

1:81 The Court ORDERS Defendant's sentence EXECUTED. 0 The Court ORDERS Defendant's sentence of confinement SUSPENDED. The Court ORDERS Defendant placed on community supervision for the adjudged period (above) so long as Defendant abides by and does not violate the terms and conditions of community supervision. The order setting forth the terms and conditions of community supervision is incorporated into this judgment by reference.

The Court ORDERS that Defendant is riven credit noted above on this sentence fo.r the time spent incarcerated.

Furthermore. the followin& special findings or orders apply:

Signed and entered on 04/ '2? I 2013

JUDGE PRESlDING

Right Thumbprint Clerk: Rosemary Cruz #########################################

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