PD-0082-14 COURT OF CRIMINAL APPEALS AUSTIN, TEXAS Transmitted 5/28/2015 11:27:22 AM Accepted 5/28/2015 1:12:05 PM May 28, 2015 ABEL ACOSTA CLERK NO. PD-0082-14
IN THE COURT OF CRIMINAL APPEALS
AUSTIN, TEXAS
ADELFO RAMIREZ CRUZ § PETITIONER
VS. §
THE STATE OF TEXAS § RESPONDENT
STATE’S MOTION FOR REHEARING
TO THE HONORABLE COURT OF CRIMINAL APPEALS:
Comes now the State of Texas, by and through the District Attorney for
Travis County, and asks this Court, pursuant to Rule 79.1 of the Texas Rules of
Appellate Procedure, to rehear and reconsider its decision in this case. The State
respectfully asserts in this motion that the Court’s analysis, in fact, supports a
finding that the biographical questions asked of Petitioner by Austin Police
Department Detectives are not rightly characterized as interrogation for purposes
of Miranda.1
1 Miranda v. Arizona, 384 U.S. 436 (1966). 1 PROCEDURAL BACKGROUND Proceedings in the Trial Court:
Petitioner was indicted by a Travis County Grand Jury for the offense of
murder alleged to have been committed on or about the 13th Day of December,
2009.2 CR 4. Trial on this cause has not yet taken place. On November 20, 2011,
Petitioner filed a motion to suppress evidence including any tangible evidence
seized in connection with the case. CR 16-20. The motion further requested
suppression of any statements made by Petitioner to, and any samples taken of
Petitioner’s person by, the Austin Police Department and “police from Chicago.”
CR 16-20. After several pre-trial hearings, the trial court issued an order on
October 22, 2012 outlining findings of fact and conclusions of law which
effectively granted Petitioner’s motion to suppress with respect to any statements
made by Petitioner during the interview conducted by the Austin Police
Department in the Berwyn, Illinois Jail on January 6, 2010. Petitioner’s Motion to
Suppress was, in all other respects, denied. Cr 34-43.
Direct Appeal:
The State filed notice of appeal and, on January 10, 2014, the Third Court of
Appeals reversed the order of the trial court suppressing statements made by
Petitioner during the interview conducted by the Austin Police Department in the
2 The indictment for Cause No. D1DC 09-302890 is styled: The State of Texas v. Adelfo Ramirez Cruz; Aliases: Jose Rodriguez, Jorge Negron, Pablo Jaimes. 2 Berwyn, Illinois Jail on January 6, 2010. See State v. Cruz, 03-12-00728-CR, 2014
Tex. App. LEXIS 296, 2014 WL 108353 (Tex. App. Austin, January 10, 2014)
(not designated for publication).
Discretionary Review:
Petitioner timely filed a petition for discretionary review, which was granted
on May 14, 2014. On May 13, 2015, this Court reversed the judgment of the 3rd
Court of Appeals and affirmed the suppression order issued by the trial court. State
v. Cruz, 2015 Tex. Crim. App. LEXIS 561 (Tex. Crim. App. May 13, 2015). The
instant Motion for Rehearing follows.
RELEVANT FACTS On December 13, 2009, Mario Carbajal Mata was shot multiple times and
killed at a taco stand he and his wife operated at 5433 South Congress Avenue in
Austin, Texas. 3 RR 13-15. The Homicide Unit of the Austin Police Department
(hereinafter referred to as “APD”) began their investigation into the murder
immediately after the shooting. 3 RR 12-13. During an interview with Irma Lopez-
Benitez, the victim’s wife and an eyewitness to the murder, APD learned that, in
the moments before the murder, Irma had taken an order from, and served a
Jarritos orange soda bottle to, a Hispanic male. 3 RR 13-14. Irma told police that
after handing the bottle to the Hispanic male, she turned around and began
preparing the Hispanic male’s order. Irma stated that as she began cooking, the
3 victim, who had been seated inside the taco stand, stood up and walked toward her
into view of the ordering window. 3 RR 14-15. Irma stated that it was at that time
that she heard multiple gunshots and saw that her husband had been fatally
wounded. 3 RR 15.
While processing the crime scene immediately after the murder, APD crime
scene personnel observed and collected what appeared to be a freshly opened
Jarritos bottle still partially filled with orange soda sitting on the table nearest to
the taco stand. 3 RR 14. When it was later processed for fingerprints, at least one
latent print was successfully lifted from the bottle. 3 RR 15. That print was then
matched to a print stored in AFIS, a nationwide fingerprint database. 3 RR 16. The
stored print was identified, in the AFIS database, as belonging to an individual by
the name of Jose Rodriguez with an FBI number of 76415AB. 3 RR 16. This name
and the corresponding FBI number were then run through the database maintained
by the National Crime Information Center (hereinafter referred to as NCIC), which
revealed that this individual had been arrested and booked for a number of offenses
committed in the Chicago, Illinois area. 3 RR 16-17. NCIC records also revealed
that this individual had used a different alias at the time of each arrest. State’s Ex.
6. Fingerprints collected at the time of those arrests were compared and were found
to match one another as well as the print collected from the Jarritos bottle at the
4 crime scene. 3 RR 18-19. Booking photos taken at the time of each arrest were of
the same individual. State’s Ex. 7, 8, 9, 10.
APD issued a warrant for the arrest of Jose Rodriguez for the murder of
Mario Carbajal Mata on December 18, 2009. 3 RR 21. At the same time, they
discovered that Rodriguez had an outstanding arrest warrant out of Chicago for the
offense of driving under the influence. 3 RR 20. APD then enlisted the help of the
United States Marshal’s Office Fugitive Task Force in the Chicago area to help
find and arrest the suspect on both warrants. 3 RR 22-23. Petitioner was arrested in
the Chicago area and brought into the Berwyn Police Department on January 6,
2010. 3 RR 26-27. Berwyn Booking Officer Thomas Zitko was given the task of
booking Petitioner into the jail upon his initial arrival at the Berwyn Police
Department. State’s Ex. 16, 17 at pg. 9. Pursuant to the Berwyn Police
Department’s routine practice and procedure, Zitko inventoried all of Petitioner’s
personal property and asked Petitioner a number of questions of a biographical
nature including his name, address and cell phone number. State’s Ex. 16, 17 at
pgs. 16-19, 23. Answers to questions posed by the Berwyn Police Department at
the time of booking are routinely memorialized by hand on an inventory/booking
document maintained by the Berwyn Police Department expressly for that purpose.
State’s Ex. 16, 17 at pg. 20 and 30-31, State’s Ex. 18. Upon arrival at the Berwyn
Police Department, Petitioner identified himself to Officer Zitko as Jorge Negron,
5 provided Zitko with an address on Pershing in the City of Chicago but did not
provide Zitko with a cell phone number. State’s Ex. 16, 17 at pg. 24. The cell
phone number (773) 940-8738 appears on the inventory document but there is no
information in the record with regard to who later acquired this information from
Petitioner nor is there any information in the record regarding when the cell phone
number was added to the document. State’s Ex. 16, 17 at pg. 26, State’s Ex. 18.
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PD-0082-14 COURT OF CRIMINAL APPEALS AUSTIN, TEXAS Transmitted 5/28/2015 11:27:22 AM Accepted 5/28/2015 1:12:05 PM May 28, 2015 ABEL ACOSTA CLERK NO. PD-0082-14
IN THE COURT OF CRIMINAL APPEALS
AUSTIN, TEXAS
ADELFO RAMIREZ CRUZ § PETITIONER
VS. §
THE STATE OF TEXAS § RESPONDENT
STATE’S MOTION FOR REHEARING
TO THE HONORABLE COURT OF CRIMINAL APPEALS:
Comes now the State of Texas, by and through the District Attorney for
Travis County, and asks this Court, pursuant to Rule 79.1 of the Texas Rules of
Appellate Procedure, to rehear and reconsider its decision in this case. The State
respectfully asserts in this motion that the Court’s analysis, in fact, supports a
finding that the biographical questions asked of Petitioner by Austin Police
Department Detectives are not rightly characterized as interrogation for purposes
of Miranda.1
1 Miranda v. Arizona, 384 U.S. 436 (1966). 1 PROCEDURAL BACKGROUND Proceedings in the Trial Court:
Petitioner was indicted by a Travis County Grand Jury for the offense of
murder alleged to have been committed on or about the 13th Day of December,
2009.2 CR 4. Trial on this cause has not yet taken place. On November 20, 2011,
Petitioner filed a motion to suppress evidence including any tangible evidence
seized in connection with the case. CR 16-20. The motion further requested
suppression of any statements made by Petitioner to, and any samples taken of
Petitioner’s person by, the Austin Police Department and “police from Chicago.”
CR 16-20. After several pre-trial hearings, the trial court issued an order on
October 22, 2012 outlining findings of fact and conclusions of law which
effectively granted Petitioner’s motion to suppress with respect to any statements
made by Petitioner during the interview conducted by the Austin Police
Department in the Berwyn, Illinois Jail on January 6, 2010. Petitioner’s Motion to
Suppress was, in all other respects, denied. Cr 34-43.
Direct Appeal:
The State filed notice of appeal and, on January 10, 2014, the Third Court of
Appeals reversed the order of the trial court suppressing statements made by
Petitioner during the interview conducted by the Austin Police Department in the
2 The indictment for Cause No. D1DC 09-302890 is styled: The State of Texas v. Adelfo Ramirez Cruz; Aliases: Jose Rodriguez, Jorge Negron, Pablo Jaimes. 2 Berwyn, Illinois Jail on January 6, 2010. See State v. Cruz, 03-12-00728-CR, 2014
Tex. App. LEXIS 296, 2014 WL 108353 (Tex. App. Austin, January 10, 2014)
(not designated for publication).
Discretionary Review:
Petitioner timely filed a petition for discretionary review, which was granted
on May 14, 2014. On May 13, 2015, this Court reversed the judgment of the 3rd
Court of Appeals and affirmed the suppression order issued by the trial court. State
v. Cruz, 2015 Tex. Crim. App. LEXIS 561 (Tex. Crim. App. May 13, 2015). The
instant Motion for Rehearing follows.
RELEVANT FACTS On December 13, 2009, Mario Carbajal Mata was shot multiple times and
killed at a taco stand he and his wife operated at 5433 South Congress Avenue in
Austin, Texas. 3 RR 13-15. The Homicide Unit of the Austin Police Department
(hereinafter referred to as “APD”) began their investigation into the murder
immediately after the shooting. 3 RR 12-13. During an interview with Irma Lopez-
Benitez, the victim’s wife and an eyewitness to the murder, APD learned that, in
the moments before the murder, Irma had taken an order from, and served a
Jarritos orange soda bottle to, a Hispanic male. 3 RR 13-14. Irma told police that
after handing the bottle to the Hispanic male, she turned around and began
preparing the Hispanic male’s order. Irma stated that as she began cooking, the
3 victim, who had been seated inside the taco stand, stood up and walked toward her
into view of the ordering window. 3 RR 14-15. Irma stated that it was at that time
that she heard multiple gunshots and saw that her husband had been fatally
wounded. 3 RR 15.
While processing the crime scene immediately after the murder, APD crime
scene personnel observed and collected what appeared to be a freshly opened
Jarritos bottle still partially filled with orange soda sitting on the table nearest to
the taco stand. 3 RR 14. When it was later processed for fingerprints, at least one
latent print was successfully lifted from the bottle. 3 RR 15. That print was then
matched to a print stored in AFIS, a nationwide fingerprint database. 3 RR 16. The
stored print was identified, in the AFIS database, as belonging to an individual by
the name of Jose Rodriguez with an FBI number of 76415AB. 3 RR 16. This name
and the corresponding FBI number were then run through the database maintained
by the National Crime Information Center (hereinafter referred to as NCIC), which
revealed that this individual had been arrested and booked for a number of offenses
committed in the Chicago, Illinois area. 3 RR 16-17. NCIC records also revealed
that this individual had used a different alias at the time of each arrest. State’s Ex.
6. Fingerprints collected at the time of those arrests were compared and were found
to match one another as well as the print collected from the Jarritos bottle at the
4 crime scene. 3 RR 18-19. Booking photos taken at the time of each arrest were of
the same individual. State’s Ex. 7, 8, 9, 10.
APD issued a warrant for the arrest of Jose Rodriguez for the murder of
Mario Carbajal Mata on December 18, 2009. 3 RR 21. At the same time, they
discovered that Rodriguez had an outstanding arrest warrant out of Chicago for the
offense of driving under the influence. 3 RR 20. APD then enlisted the help of the
United States Marshal’s Office Fugitive Task Force in the Chicago area to help
find and arrest the suspect on both warrants. 3 RR 22-23. Petitioner was arrested in
the Chicago area and brought into the Berwyn Police Department on January 6,
2010. 3 RR 26-27. Berwyn Booking Officer Thomas Zitko was given the task of
booking Petitioner into the jail upon his initial arrival at the Berwyn Police
Department. State’s Ex. 16, 17 at pg. 9. Pursuant to the Berwyn Police
Department’s routine practice and procedure, Zitko inventoried all of Petitioner’s
personal property and asked Petitioner a number of questions of a biographical
nature including his name, address and cell phone number. State’s Ex. 16, 17 at
pgs. 16-19, 23. Answers to questions posed by the Berwyn Police Department at
the time of booking are routinely memorialized by hand on an inventory/booking
document maintained by the Berwyn Police Department expressly for that purpose.
State’s Ex. 16, 17 at pg. 20 and 30-31, State’s Ex. 18. Upon arrival at the Berwyn
Police Department, Petitioner identified himself to Officer Zitko as Jorge Negron,
5 provided Zitko with an address on Pershing in the City of Chicago but did not
provide Zitko with a cell phone number. State’s Ex. 16, 17 at pg. 24. The cell
phone number (773) 940-8738 appears on the inventory document but there is no
information in the record with regard to who later acquired this information from
Petitioner nor is there any information in the record regarding when the cell phone
number was added to the document. State’s Ex. 16, 17 at pg. 26, State’s Ex. 18.
As soon as the U.S. Marshal’s Office placed Petitioner into custody, APD
was notified of his capture. 3 RR 24. APD Detectives Jeff Greenwalt and Frank
Rodriguez arrived at the Berwyn Police Department thirteen or fourteen hours after
Petitioner’s arrest. 3 RR 26-28. Greenwalt and Rodriguez met and interviewed
Petitioner at that time. 3 RR 28-29. That interview was conducted in Spanish
recorded in its entirety. 3 RR 29, State’s Ex. 1 and 2. The following is that portion
of the January 6, 2010 interview that was at issue during the Motion to Suppress
and that the trial court ultimately suppressed:
Officer Rodriguez: Hey what’s up man? Petitioner: Here. Officer Rodriguez: How are you? Petitioner: Fine. Officer Rodriguez: You hungry? Petitioner: Yes hungry. Officer Rodriguez: I’m Frank Rodriguez and this is Jeff Greenwalt. Petitioner: Oh, ok, my pleasure. Officer Rodriguez: You just back from the hospital? Petitioner: Oh, yes. I felt really bad, my heart closed up really bad. 6 Officer Rodriguez: Yeah. Petitioner: and here. Officer Rodriguez: You feel better? Were you given medicine? Or- Petitioner: Yes, I got something for the (unintelligible) and a shot. Officer Rodriguez: You, uh, you speak English? Petitioner: No. Officer Rodriguez: Nothing? Ok, he speaks Spanish also. Officer Greenwalt: I can speak but it’s really hard sometimes to understand all of the- Petitioner: Oh. Officer Rodriguez: Hey, as I said I am Frank Rodriguez and he is Jeff Greenwalt. We need-keep eating- Petitioner: Ok. Officer Rodriguez: Go ahead and eat, uh, need little bits [sic] of information from you, the name, uh, things like that because Immigration wants to put a, a, a, uh, a hold against you but the troubles [sic] is that they have, it’s that there are several name for you. Petitioner: How many names? Detective Rodriguez: Two or three, I don’t know, so, uh, if you would please tell me what your name is. Petitioner: Jorge Negron. Detective Rodriguez: Jorge? Petitioner: Negron Detective Rodriguez: Negron? Petitioner: Uh huh Detective Rodriguez: And do you have identification? Petitioner: Yes. It’s just that I have a-yes. Detective Rodriguez: Ok-your birth? Petitioner: 02/14/75 Detective Rodriguez: 7-5? Petitioner: Uh huh. Detective Rodriguez: And the address where you live? Petitioner: It’s that I don’t- That, I almost don’t, like for example since I don’t use it, I don’t even know, not even the telephone number that we have, not even that. 7 Detective Rodriguez: What? What is the street where you live? Petitioner: It’s on Pershing. Detective Rodriguez: What? Petitioner: Pershing. Detective Rodriguez: Per-pershing? Petitioner: Uh huh. Detective Rodriguez: But you don’t know the number? Petitioner: No, I don’t know the number. Detective Rodriguez: Is it an apartment or a house? Petitioner: house. Detective Rodriguez: And the telephone? Petitioner: The telephone. It’s that I don’t know it. I mean, I don’t remember real well. Seems like it’s, uh, 7-7-3, that I know, the area code is 7-7-3. It’s from Chicago. Detective Rodriguez: Uh huh. Petitioner: And the number is, uh, I think 6-90. Detective Rodriguez: 6-90? Petitioner: Uh huh. Detective Rodriguez: Uh huh? Petitioner: 87-38, seems that’s it. It’s that I, I don’t haven’t called it. Detective Rodriguez: And do you have a cell? Petitioner: That one. It’s- Detective Rodriguez: That’s the cell number? Petitioner: Uh huh. My wife’s. Detective Rodriguez: Oh, your wife’s-so then you’re married? Petitioner: Just living with her. Detective Rodriguez: Oh and what’s her name? Petitioner: Henriqueta. Detective Rodriguez: What? Petitioner: Henriqueta. Detective Rodriguez: Henriqueta? Petitioner: Uh huh. Detective Rodriguez: Negron? Petitioner: Well yeah. Well, we’re not married yet so it’s Cardozo. Detective Rodriguez: Oh, Cardozo. Henriqueta Cardozo. Petitioner: Uh huh.
8 Detective Rodriguez: Um, Immigration wants to put a, a, when you’re detained here, to uh, because they’re going to want to kick you out. Petitioner: Yes. Detective Rodriguez: So, we were asked to come and talk and to, to lets you know- Petitioner: Who (unintelligible)? Detective Rodriguez: Immigration. Petitioner: Oh. Detective Greenwalt: INS. Uh, what part of Mexico are you from? Petitioner: From Guanajuato. Detective Rodriguez: Guanajuato. Petitioner: Well, I was born there but I came here from the State of Mexico. Detective Rodriguez: From the State of Mexico. And you were- how long have you been in the U.S.? Petitioner: Here, I’ve been here since, since-well it’s that I came-in 2000 I came over here. Detective Rodriguez: In 2000? Petitioner: Yes. Detective Rodriguez: To here? Petitioner: Yes. Uh huh. Detective Rodriguez: Here to the U.S. or to-? Petitioner: Yes, to America. Detective Rodriguez: But, to Chicago or to, to-? Petitioner: Yes, here to America. I’ve always been here or in the Chicago area. Detective Rodriguez: So then you moved here in 2000? Petitioner: Uh huh, uh, no. I mean I arrived here in, in 2000 but from there, uh, uh, I was supposed to, I don’t know what I was stopped supposedly for a DUI. Detective Rodriguez: Yes. Petitioner: I, I, I mean I have not been told really well why, since I don’t understand them. Detective Rodriguez: Yes. Petitioner: But I’m told it’s a DWI. Detective Rodriguez: Uh, you had one in the past. Petitioner: From, yes, I don’t, I don’t deny that. I, I did have one, but I never got the chance to, I 9 mean to know, and then since, since I have to, uh, I got a call from Mexico that I have to go and I, I had to go-and then I recently came back again, to here- and (unintelligible). Detective Rodriguez: When did you leave? Petitioner: I, I don’t remember so well but it was when I got the DUI. I mean that, I really got some, yes they did get me but I didn’t have a wreck. I didn’t hit anyone. I, no one, I just, the police just stopped me and said I was drunk, and I wasn’t, I mean police said I had drunk and yes I had drunk about three because I had gone to fix my car- Detective Rodriguez: No. I don’t want to talk about you about what you owe because you have rights and I don’t want to violate your rights nor get into trouble either-until, if I am going to talk to you about those kinds of things, I need to read you your rights.
Detective Rodriguez (in English) to Detective Greenwalt: Do you need anything else before I go through the-?
Detective Greenwalt (in English) to Detective Rodriguez: I don’t think so, I want to make sure that I understand him correctly. He said that’s his wife and that that is her cell phone; that he does not have a cell phone; that he’s from Guanajuato; and, he’s been in Chicago since 2004-
Detective Rodriguez (in English): And he went back-
Detective Rodriguez: You left to Mexico? Petitioner: Uh huh. Detective Rodriguez: When was it that you went back to Mexico? For a moment, at, at what year did you leave? Petitioner: I think 2004.
Detective Rodriguez (in English) to Detective Greenwalt: In 2004. 10 Detective Greenwalt (in English) to Detective Rodriguez: Where did he go back to?
Detective Rodriguez: Where did you go? Petitioner: To Mexico. Detective Rodriguez: To-To here, to there? And you came back? Petitioner: Didn’t come back until-until ’98. Detective Rodriguez: Excuse me? 2008? Petitioner: Uh huh. Sorry. 2008.
Detective Rodriguez (in English) to Detective Greenwalt: He just came back in 2008.
Detective Rodriguez: Here? Petitioner Uh huh. Detective Rodriguez: The uh-regarding your charges, I cannot talk to you about that until I, I read you your rights.
At this point in the interview Petitioner was mirandized and immediately
invoked his right to counsel. State’s Ex. 1 & 2, 3 RR 32. Detectives Greenwalt and
Rodriguez terminated the interview and went to Petitioner’s home on Pershing
where they met with Petitioner’s wife, Henriqueta Cardozo. 3 RR 33. Cardozo
consented to a search of the home, which uncovered a birth certificate revealing
Petitioner’s true identity as Adelfo Ramirez Cruz with a date of birth of July 19,
1976. 3 RR 33-34, State’s Ex. 11. During the search of Petitioner’s home, Cardozo
agreed to speak to Detective Rodriguez. 3 RR 33, State’s Ex. 3 & 4. At that time,
Cardozo confirmed that Petitioner had regular use of a cell phone and that the
number for that cell phone was (773) 690-8738. State’s Ex. 13, 3 RR 35. Detective 11 Greenwalt later subpoenaed the records for the cell phone number provided by the
Petitioner and confirmed by Cardozo and discovered that calls made and received
by that cell phone hit cell phone towers close to the scene of the murder at the time
the murder was committed. 3 RR 36-37.
STATE’S SOLE GROUND FOR REVIEW ON MOTION FOR REHEARING
Based on the Court’s own analysis, Detective Rodriguez’s request for Petitioner’s cell phone number did not meet the “should know” test and therefore does not constitute interrogation for purposes of Miranda.
On petition for discretionary review, this Court took up the question of
whether the exception to Miranda that allows routine inquiries normally attendant
to arrest and custody extends to questions of a biographical nature asked by law
enforcement of a person who has already been in custody for hours but has not yet
been informed of his rights under the Fifth Amendment of the United States
Constitution, Miranda v. Arizona and TEX. CODE. CRIM. PROC. art. 38.22.
In its holding on discretionary review, the Court summarized the exceptions
to interrogation under Miranda thusly:
[A] question that seeks to elicit biographical data may be deemed “not interrogation” under either of two theories. First, such a question may be deemed “not interrogation” because it does not meet the general test for interrogation, i.e. it does not meet the “should know” test. That is, a court could decide that a particular question about biographical data was so innocuous that its tendency to produce an incriminating 12 response was not something the police officer should have known. Second a biographical question may be deemed “not interrogation” under the “booking” (or “administrative”) exception. That is, a court could decide that a particular question about biographical data was a routine administrative inquiry.
State v. Cruz, 2015 Tex. Crim. App. LEXIS 561, *9 (Tex. Crim. App. May 13, 2015).
This Court then went on to hold that the facts of the instant case supported a
finding that the cell phone question posed by Detective Rodriguez lacked a
legitimate administrative purpose. Id. at *17. At the same time, this Court also held
that the evidence supported a finding that Detectives Rodriguez and Greenwalt
knew or should have known that the answer to their questions would produce an
incriminating response. Id. at 13. It is this particular holding that the State would
ask the court to revisit as the facts of this case do not reflect that Rodriguez and
Greenwalt knew or should have known that their biographical questions, and in
particular their question regarding Petitioner’s cell phone number, would produce
a response that would incriminate Petitioner in the offense with which he is
charged.
This Court expressly held that “biographical data does not become
interrogation simply because the identifying information may later aid law
enforcement in conducting a criminal investigation.” Id. at 12. As to the instant
case, the Court further agreed that “questioning [Petitioner] about his address and
phone number did not become interrogation simply because the answers enabled 13 police to locate and search his home or obtain his cell-phone records.” Id. What
this Court took issue with, apparently, was the fact that Petitioner’s name and
phone number had “incriminating value in themselves and did not simply lead to
other incriminating evidence,” specifically noting that asking for Petitioner’s name
“would have shown that he had previously given a false name,” which, by itself, is
a criminal offense. Id. See TEX. PENAL CODE §38.02.3
The State would respectfully suggest that in determining whether a question
is directly incriminating, the analysis should logically turn on whether the response
is likely to incriminate the suspect in the offense actually being investigated.
To begin with, APD detectives were not in Berwyn investigating Petitioner
for giving a false name. Petitioner was not being held in the Berwyn Jail for that
offense nor is he now, based on the information he provided to Rodriguez and
Greenwalt, currently facing a charge, either in Illinois or in Texas, for the offense
of failure to identify.4 If the Court’s analysis is meant to prohibit use of Petitioner’s
statement to incriminate him for the offense of failure to identify, then so be it. The 3 The Court’s opinion does not specifically address how the asking the Petitioner for his cell phone number was directly incriminating to him. 4 In this way, the instant case is highly distinguishable from a number of the other cases the Court cites to support its ultimate holding. An inquiry into defendant’s true identity did meet the “should know” test in Thomas v. United States because, unlike Petitioner, defendant’s true identity directly corroborated information the police already had about the suspect in their case. 731 A.2d 415 (D.C. 1999). Likewise, the defendant’s true identity was directly incriminating in United States v. Parra, because it immediately identified him as an alien in possession of firearms. 2 F.3d 1058 (10th Cir.), cert. denied, 510 U.S. 1026, 126 L. Ed. 2d 597, 114 S. Ct. 639 (1993). Moreover, in Timbers v. Commonwealth, once the defendant identified herself to the police by her true name, she was charged with forgery for previously providing a false name in relation to her fingerprint records. 28 Va. App. 187, 503 S.E.2d 233 (Va. App. 1998). 14 issue here, however, is whether or not Petitioner is properly implicated in a murder
and the “holy grail” in this case begins and ends with the cell phone number. The
cell phone number itself does not directly incriminate Petitioner in any offense. In
fact, Petitioner’s cell phone number falls directly into that category of information
described by this Court as information “may later aid law enforcement in
conducting a criminal investigation.” Id. at 12. Under this Court’s own analysis,
the question that elicited the cell phone number is not rightly characterized as
interrogation under Miranda. As this Court expressly noted, “the Miranda rule is
concerned with the incriminating nature of the responses to questions, not with
what evidence those responses might lead to, and the rule does not bar the
admission of other evidence that is later obtained as a result of a suspect’s
statements.” Id. at 11.
A detective leaving no stone unturned in the hopes that a solid clue can be
found is not someone who knows or should know that his inquiry will unlock a
mystery. Those two individuals occupy two very different locations on a
continuum. When they asked Petitioner for his cell phone number, Rodriguez and
Greenwalt were doing what any competent homicide investigator does: following
all possible leads and investigating any reasonable hunches. Some leads and
hunches bear fruit. Some do not. With respect to this particular hunch, the
detectives could not have known, at the time they made the inquiry that the cell
15 phone would, in fact, inculpate Petitioner in the murder because information
showing that calls made and received by that cell phone hit cell phone towers close
to the scene of the murder at the time the murder was committed only became
available to them after the cell phone records were subpoenaed, which was well
after Petitioner’s interview at the Berwyn Police Department. 3 RR 36-37. At the
point when Petitioner was asked by Detective Rodriguez for his cell phone
number, there was just as much of a possibility that the answer to the question
would have led to evidence exculpating Petitioner as inculpating him. 3 RR 36, 41.
The Third Court of Appeals rightly adopted this reasoning in its holding below:
In this case, Detective Rodriguez’s initial questions were purely biographical; he asked only [Petitioner’s] name, address, phone number, whether he lived with anyone, and when he moved to the United States. None of these questions relate to an element of murder and there is nothing in the record to indicate that Detective Rodriguez should have known that these questions were likely to illicit an incriminating response. The fact that Detective Rodriguez subjectively hoped that [Petitioner’s] phone number or address might lead to relevant evidence does not transform this otherwise routine inquiry into an interrogation.
State v. Cruz, 03-12-00728-CR, 2014 Tex. App. LEXIS 296, 2014 WL 108353, at *16 (Tex. App. Austin, January 10, 2014) (not designated for publication) (emphasis added).
16 PRAYER
WHEREFORE, PREMISES CONSIDERED the State respectfully prays that
the Court of Criminal Appeals grant this motion for rehearing, overrule petitioner’s
sole ground for review and affirm the judgment of the Third Court of Appeals.
Respectfully submitted,
ROSEMARY LEHMBERG District Attorney Travis County, Texas
/s/ Kathryn A. Scales Kathryn A. Scales Assistant District Attorney State Bar No. 06022700 P.O. Box 1748 Austin, Texas 78767 (512) 854-9400 Fax No. 854-4810 Kathryn.Scales@traviscountytx.gov AppellateTCDA@traviscountytx.gov
17 CERTIFICATE OF COMPLIANCE
Pursuant to Texas Rule of Appellate Procedure 9.4(i), I hereby certify, based
upon the computer program used to generate this motion, that this motion contains
3,942 words, excluding words contained in those parts of the motion that Rule
9.4(i) exempts from inclusion in the word count. I certify, further, that this motion
is printed in a conventional, 14-point typeface.
/s/ Kathryn A. Scales Kathryn A. Scales Assistant District Attorney
CERTIFICATE OF SERVICE
This is to certify that the above State's Motion for Rehearing was served on
Petitioner by U.S. mail, electronic mail, facsimile, or electronically through the
electronic filing manager, to the Petitioner’s attorneys, Michael Mowla, at 445 E.
FM 1382, #3-718, Cedar Hill, Texas 75104 and Leonard Martinez, at 812 San
Antonio, Suite 101, Austin, Texas 78701, and to the State’s Prosecuting Attorney,
Lisa McMinn, at P.O. Box 13046, Capitol Station, Austin, Texas 78711, on this
28th day of May, 2015.
/s/ Kathryn A. Scales Kathryn A. Scales Assistant District Attorney 18