In The
Court of Appeals Ninth District of Texas at Beaumont _________________ NO. 09-11-00073-CR _________________
EDSON HEDIVALDO OLVERA-GARZA SR., Appellant
V.
THE STATE OF TEXAS, Appellee
________________________________________________________________________
On Appeal from the 435th District Court Montgomery County, Texas Trial Cause No. 10-08-09235-CR ________________________________________________________________________
MEMORANDUM OPINION
In this appeal, we address whether the trial court abused its discretion by
admitting a defendant’s oral and written confessions to a murder. The State
charged Edson Hedivaldo Olvera-Garza Sr. 1 with murdering Eugene Villaruel. See
Tex. Penal Code Ann. § 19.02 (West 2011). Before the trial began, Olvera asked
the trial court to suppress his oral and written confessions to the murder. Olvera’s
1 Appellant is also known as Edson Olvera. According to appellant, he usually goes by Edson Olvera. 1 motion to suppress asserts he was questioned by police while in their custody
before being warned of his rights. The trial court denied Olvera’s motion;
afterward, under a plea bargain, Olvera pled guilty. In carrying out Olvera’s plea
agreement, the trial court sentenced Olvera to twenty-five years in prison.
Custodial Interrogation
Standard of Review
Generally, a Miranda warning is required if the police have taken a
defendant into custody. See Miranda v. Arizona, 384 U.S. 436, 444, 478-79, 86
S.Ct. 1602, 16 L.Ed.2d 694 (1966) (requiring that police advise a person of his
rights prior to questioning if the person is in custody or has otherwise been
deprived of his freedom of action in any significant way); Herrera v. State, 241
S.W.3d 520, 525-26 (Tex. Crim. App. 2007). To use the responses the defendant
made during a custodial interrogation, the State must demonstrate that procedural
safeguards—such as warnings—were used, which allow a defendant the
opportunity to secure his privilege against self-incrimination. Miranda, 384 U.S. at
444; Wilkerson v. State, 173 S.W.3d 521, 526 (Tex. Crim. App. 2005).
2 On appeal, Olvera challenges the trial court’s finding that his pre-Miranda
interrogation was noncustodial. See Miranda, 384 U.S. at 445. 2 Olvera contends
that he was in custody when, before receiving his Miranda warnings, he orally
confessed to having been involved in Villaruel’s murder.
A trial court’s ruling on a motion to suppress is reviewed to determine
whether the trial court abused its discretion in deciding to admit or exclude
evidence. See Guzman v. State, 955 S.W.2d 85, 88-89 (Tex. Crim. App. 1997). To
determine whether the record supports the trial court’s evidentiary ruling, we
accord almost complete deference to the trial court’s determination of historical
facts, especially when that determination is based on the trial court’s assessment of
a witness’s credibility and demeanor. Id. at 89. If the trial court’s determination
involves mixed questions of law and fact that turn on the trial court’s evaluation of
credibility and demeanor, the appellate court applies that same standard of “almost
total deference[.]” State v. Ross, 32 S.W.3d 853, 856 (Tex. Crim. App. 2000).
Questions of law and fact that do not turn on credibility and demeanor are
reviewed de novo. Id.
2 The written warnings referred to in this opinion as Miranda warnings were those given to Olvera by the police in carrying out the duties placed on them by article 38.22 of the Texas Code of Criminal Procedure. See Tex. Code Crim. Proc. Ann. art. 38.22 § 2 (West 2005). 3 Summary of Testimony from the Suppression Hearing
On November 2, 2008, Harris County Deputy Sheriff Ben Russell went to an
apartment complex in Harris County to investigate a report that Villaruel was
missing. Members of Villaruel’s family told Deputy Russell that two men, Olvera
and Edgar Sazo, had information about Villaruel’s disappearance. While at the
complex, the officers spoke with Olvera and Sazo; both denied knowing
Villaruel’s whereabouts. After Olvera and Sazo provided police with information
that might be needed to contact them again, they were released.
Less than two hours later, after Montgomery County officers recovered
Villaruel’s body, Harris County officers went to Olvera’s apartment. The officers
did not arrest Olvera. After a pat-down search, the officers placed Olvera in
handcuffs, put him in the backseat of a patrol vehicle, and took him to Villaruel’s
apartment complex, a distance of approximately four miles. According to Deputy
Russell, department policy required the officers to use handcuffs as a precaution
while transporting a person who was being detained in a police vehicle.
When Olvera arrived at Villaruel’s apartment complex, Olvera’s handcuffs
were removed, and he was moved to the front seat of a detective’s unlocked SUV.
Detective Keith Echols, an officer employed by the Montgomery County Sheriff’s
Department, was standing outside the SUV. No one told Olvera he was under
4 arrest while he waited to be questioned. Shortly after arriving at Villaruel’s
apartment complex, Olvera was joined in the SUV by Detective Paul Hahs,3
another officer with the Montgomery County Sheriff’s Department. Initially,
Olvera told Detective Hahs that he and Sazo had been with Villaruel that evening,
but he claimed they had dropped Villaruel off at Villaruel’s apartment around
10:00 p.m.
As the interview developed, Detective Hahs challenged Olvera to explain
how Villaruel could have used his phone from Sazo’s vehicle if he was no longer
in Sazo’s car; asked Olvera to explain when he cut his hand; and advised Olvera
that they knew Villaruel had been murdered before telling Olvera that he believed
Olvera “was directly involved or, excuse me, directly in the middle of this
situation.” During the course of their conversation, Olvera retracted his claim that
he had no knowledge concerning Villaruel’s murder. Olvera told Detective Hahs
that “[Sazo] was planning to kill [Villaruel]” and he was “kind of trying to talk
[Sazo] out of it.”
Olvera went on to explain that he was driving Sazo’s car when Sazo stabbed
Villaruel. According to Olvera, Sazo asked him to help carry Villaruel’s body into
the woods, and he agreed to do so. After telling Detective Hahs that he helped Sazo 3 The detective’s name is misspelled in the reporter’s record as “Haas.”
5 move Villaruel’s body, and that blood had gotten on his clothing, Detective Hahs
told Olvera that he would need his shoes. After taking Olvera’s shoes, Detective
Hahs asked: “Did [Sazo] make you stick [Villaruel] at all?” In response, Olvera
admitted “I did in fact stab . . . like once or twice” while Villaruel was still alive.
During the suppression hearing, Detective Hahs testified that he believed he had
probable cause to arrest Olvera when Olvera agreed to give him his shoes and
when Olvera admitted to having stabbed Villaruel.
After Olvera told Hahs about his involvement in Villaruel’s murder,
Detective Hahs asked Olvera to give a written statement. Olvera agreed. At that
point, Detective Hahs asked Detective Echols for a “statement form[.]” Before
getting the form, Detective Echols indicated that he wanted to ask Olvera some
questions since he had not been present during the entire conversation. After
Detective Echols finished questioning Olvera, and before giving Olvera his
Miranda warnings, Detective Hahs asked Olvera if he had any blood on his
clothes; he then asked Olvera to write out his statement.
During the suppression hearing, Olvera’s counsel asked Detective Hahs
when the interview became confrontational and when Olvera’s statements became
confessional. Detective Hahs stated he avoided using a confrontational tone when
he told Olvera that his story did not match the facts. According to Detective Hahs,
6 his questions were designed to elicit truthful responses. Detective Hahs stated that
when he told Olvera that his statement did not match known facts, he believed
Olvera “was at the very least present when the murder occurred.” According to
Detective Hahs, the interview turned into a confession “[w]hen [Olvera] admitted
that he stabbed [Villaruel]” because Olvera “wasn’t admitting to any wrongdoing
before then of his own.” Detective Hahs stated he asked Olvera to provide a
written statement because “[a]t that point I wanted him to back up what he was
saying; and a lot of times people will say one thing, and when they put it on paper,
they’ll write something totally different, [giving] you inconsistencies to work
with.” Detective Hahs agreed that Olvera’s written statement is consistent with his
earlier oral statements.
Trial Court’s Findings of Fact and Conclusions of Law
Trial courts are required to make written findings when a question is raised
regarding the voluntariness of an accused’s confession. Tex. Code Crim. Proc.
Ann. art. 38.22 § 6 (West 2005). Nevertheless, “[a] trial court satisfies the
requirements of Article 38.22 when it dictates its findings and conclusions to the
court reporter,” and the findings and conclusions are transcribed, filed with the
district clerk, and included in the appellate record. Murphy v. State, 112 S.W.3d
592, 601 (Tex. Crim. App. 2003).
7 The findings and conclusions the trial court dictated into the record at the
conclusion of the suppression hearing in this case state:
• “[Olvera] was not in custody at the time that he gave his statement to the police[;]”
• “a person is brought into contact with the police, acting only upon a request or urging the police, and”
• “there is no threat expressed or implied that a statement was gonna be taken forcibly[,] when the statement’s taken[,] that the statement is valid[;]” and
• “the statement was voluntary when it was given based upon the evidence of Detective [Hahs] and of the defendant.”
• “So the statements [will] be allowed into evidence.”
The trial court disregarded Olvera’s request for further written findings.
After the matter was appealed, Olvera complained the findings the trial court
dictated to the court reporter failed to adequately address the issues he desired to
raise on appeal. We remanded the case to the trial court, requiring that it make
written findings of fact and conclusions of law to address the issues Olvera wished
to raise in his appeal. See Tex. R. App. P. 44.4. Subsequently, the trial court made
written findings; among its findings, the trial court found that:
• “Detectives [Hahs] and Echols are credible witnesses[;]”
• “The interview took place in the passenger cabin of Echols’s marked patrol SUV[;]”
8 • “The doors were not locked and [Olvera] was free to leave[;]”
• “When [Hahs] began the interview, he did not believe [Olvera] was a suspect, but rather a witness[;]”
• “[Hahs] did not believe he had probable cause to arrest [Olvera], even after [Olvera] made incriminating statements[;]”
• “[Hahs’s] manner was conversational and the questions asked were not a hostile interrogation[;]”
• “Echols stood outside the passenger side door, but did not block a potential exit for [Olvera;]”
• “Detectives never told [Olvera] that he was not free to leave, although they never told him that he was free to leave, either[;]”
• “[Hahs’s] questions were calculated to get [Olvera] to implicate Sazo in the murder of Villaruel, not to get [Olvera] to implicate himself[;]”
• “Detectives believed they developed probable cause to arrest [Olvera] after he admitted to stabbing Villaruel[;]”
• “[Hahs] did not arrest [Olvera] after developing probable cause because [Hahs] believed the decision to arrest lay with Echols[;]”
• “After developing probable cause, [Hahs] continued speaking with [Olvera], but not about issues related to the case[;]”
• “[Hahs] read [Olvera] his Miranda rights and had [Olvera] execute a written [article] 38.22 waiver before taking his written statement. At that point, officers communicated to [Olvera] that they believed they had probable cause for his arrest and that he would be arrested[;]”
9 • “Officers did not inform [Olvera] that he was not bound by his oral statement before making his written statement[;]”
• “The total length of the interview was approximately one hour and fifteen minutes.”
The trial court’s conclusions of law include the following:
• “[Olvera] was not in custody when [Hahs] began to interview him in the police vehicle because the interview was not unduly long, he was not restrained in his movements to the degree associated with a formal arrest, and officers did not have probable cause to arrest him at the time. See Stansbury v. California, 511 U.S. 318, 322 (1994)[;]”
• “[Olvera] was not in custody when he made incriminating statements to the detectives about his involvement in the murder of Villaruel. Id.[;]”
• “[Olvera] was in custody when officers asked him to provide a written statement[;]”
• “[Hahs] did not deliberately employ a ‘question first, warn later’ approach to questioning because he did not deliberately begin a conversational, non-confrontational interview with [Olvera] with the intent of securing a confession without affording the appellant the protections of Miranda and [article] 38.22. See Carter v. State, 309 S.W.3d 31, 40-41 (Tex. Crim. App. 2010)[;]”
• “Echols did not deliberately employ a ‘question first, warn later’ approach to interviewing [Olvera]. He did not ask questions of [Olvera] with the intent of securing a confession without affording [Olvera] the protections of Miranda and [article] 38.22. See Carter, 309 S.W.3d at 40-41[;]”
10 • “The Miranda/[article] 38.22 warnings, when given, were effective at apprising [Olvera] of his rights and ensuring that those rights were protected. See Martinez v. State, 272 S.W.3d 615, 624 (Tex. Crim. App. 2008)[;]”
• “The officers did not employ any of the curative measures discussed in Missouri v. Seibert, 542 U.S. 600 (2004), because the officers did not believe that [Olvera] was in custody until he was asked to give a written statement[;]”
• “Because the officers did not deliberately use a ‘question first, warn later’ approach, curative measures were not necessary. See Ervin v. State, 333 S.W.3d 187, 213 (Tex. App.—Houston [1st Dist.] 2010, pet. ref’d)[;]”
• “The officers did not violate [Olvera’s] Fifth Amendment rights in taking either his unwarned, oral statement, or his warned, written confession[;]”
• “[Olvera] was not entitled to the suppression of either statement.”
Challenged Findings
Olvera specifically challenges the trial court’s findings that “[w]hen [Hahs]
began the interview, he did not believe [Olvera] was a suspect, but rather a
witness[,]” and “[Hahs] did not believe he had probable cause to arrest [Olvera],
even after [Olvera] made incriminating statements.” These challenged findings are
based on the trial court’s judgments regarding Detective Hahs’s and Detective
Echols’s credibility. Because trial courts have a first-hand opportunity to judge the
demeanor of witnesses who appear in suppression hearings, appellate courts afford
11 “almost total deference” to the trial court’s explicit findings of fact “as long as the
record supports them[.]” State v. Castleberry, 332 S.W.3d 460, 465 (Tex. Crim.
App. 2011).
In Olvera’s case, the record contains evidence supporting the finding that
Detective Hahs did not view Olvera as a suspect at the outset of the interview.
Detective Hahs testified that Olvera was not in custody when the interview began
and he interviewed Olvera to find out what happened because he thought Olvera
might have some information about the murder. As the interview developed,
Olvera advised Detective Hahs that he was with Sazo and Villaruel when Sazo
murdered Villaruel, but in that account, Olvera took the position that he was
merely a bystander who had not participated in Villaruel’s murder. Thus, Detective
Hahs could reasonably view Olvera’s statements about having been with Villaruel
when he was murdered as statements that did not incriminate Olvera in the crime.
Nevertheless, Detective Hahs acknowledged that he thought probable cause
for an arrest developed during the interview when Olvera admitted that he had
blood on his shoes and admitted that he had stabbed Villaruel. To the extent the
trial court’s finding reflects that Detective Hahs did not believe he had probable
cause to arrest Olvera after Olvera gave Detective Hahs his shoes and admitted to
12 having stabbed Villaruel, the trial court’s finding is not supported by the transcript
of the hearing.
Olvera suggests the trial court was required to infer that Detective Hahs
thought Olvera was a suspect in the murder at the outset of the interview. Viewing
the interview from that point of view, which is one the trial court did not share,
Olvera draws the conclusion that Detective Hahs conducted the interview
intending to elicit an un-warned confession before administering Miranda
warnings. Olvera directs us to a statement that Detective Hahs made before
Olvera’s interview began, which he contends indicates that Detective Hahs thought
Olvera was present when Villaruel was murdered. But, we have explained that one
of the positions that Olvera took in the course of his interview was that he was
present but not a participant in Villaruel’s murder. Based on the evidence, the trial
court’s determination that Hahs found that account believable is reasonable.
Olvera also points to the fact that Detective Hahs testified he did not believe
Olvera’s account about what happened on the night of Villaruel’s murder.
However, the fact that an officer has a hunch that a witness might have additional
information than he had divulged does not necessarily mean the officer must also
believe the witness is a suspect. The trial court found Detective Hahs did not view
Olvera as a suspect at the outset of the interview, and we must apply a deferential
13 standard to our review of that finding. For instance, during the entire interview,
Olvera and Detective Hahs spoke to each other calmly and in a conversational
tone. Even though Detective Hahs pressed Olvera on inconsistencies and raised
questions about Olvera’s explanations, that technique was employed before Olvera
divulged his involvement in Villaruel’s murder. Also, pressing a witness on
inconsistencies may be merely an attempt to get a witness to divulge all of the non-
incriminatory information the witness knows. The trial court could reasonably
view the interview as consistent with efforts to get Olvera to disclose Sazo’s, not
Olvera’s, involvement in Villaruel’s murder. In the light favorable to the trial
court’s role as factfinder, the trial court’s conclusions that Olvera was not in
custody when the interview began and that he was not in custody when he admitted
being with Villaruel when Sazo stabbed him are supported by the record.
The question of what an officer intends by continued questioning after
having been given incriminatory statements is subject to a “highly deferential
review[.]” Carter v. State, 309 S.W.3d 31, 40 (Tex. Crim. App. 2010). Based on
that standard, the record before the trial court allowed the trial court to conclude
that Detective Hahs did not deliberately use a “question first, warn later” approach
in questioning Olvera. The officers were involved in an interview process that
moved fluidly from a noncustodial interrogation to one that became custodial when
14 Olvera incriminated himself in the murder. The trial court’s finding that Hahs’s
questions were designed to get Olvera to implicate Sazo, not to get Olvera to
implicate himself, as well as its conclusion that Detective Hahs did not employ a
“question first, warn later” approach also find support in the record.
Application of Law to Facts
Olvera challenges the trial court’s rulings to admit both his oral and his
written statements. With respect to his oral statement, Olvera contends the trial
court should have suppressed his entire oral statement as a pre-Miranda custodial
statement. Determining when police have placed a defendant in custody is to be
determined “on an ad hoc basis, after considering all of the (objective)
circumstances.” Dowthitt v. State, 931 S.W.2d 244, 255 (Tex. Crim. App. 1996)
(citing Shiflet v. State, 732 S.W.2d 622, 629 (Tex. Crim. App. 1985)). In making
that determination, courts are to determine whether a reasonable person, given all
of the objective circumstances, would have perceived the detention to have been a
restraint on movement “‘comparable to . . . formal arrest[.]’” State v. Ortiz, 382
S.W.3d 367, 372 (Tex. Crim. App. 2012) (quoting Berkemer v. McCarty, 468 U.S.
420, 441, 104 S.Ct. 3138, 82 L.Ed.2d 317 (1984)).
Nevertheless, if the answers of the person being interviewed by police give
the police probable cause to arrest the person being interviewed, an interview that
15 began as an investigative detention can change into a custodial interrogation. See
Dowthitt, 931 S.W.2d at 255. Additionally, a noncustodial interrogation can
become a custodial interrogation if, during the interview, the suspect’s freedom to
leave is restricted to the degree associated with an arrest and the restrictions on the
suspect’s movements are created by law enforcement officers, the suspect is told
he cannot leave, or the police create a situation that would make a reasonable
person who was innocent believe that his freedom of movement is significantly
restricted. Id.
Olvera claims the police placed him in custody by handcuffing him, placing
him in a police vehicle, and taking him to Villaruel’s apartment complex. If not in
custody when police initially took him to Villaruel’s apartment complex, Olvera
argues that the trial court should have found that he was in custody when he
conceded that that he lied about the “events of the night of Villaruel’s murder.”
Olvera directs us to Kaupp v. Texas, arguing the facts involved in that case
are similar to the facts in his case. See 538 U.S. 626, 123 S.Ct. 1843, 155 L.Ed.2d
814 (2003). In Kaupp, a suspect implicated Kaupp in a murder; after being refused
a search warrant, police went to Kaupp’s home and awoke the seventeen-year-old
Kaupp from his bed at 3:00 a.m. by shining a flashlight in his face. Id., 538 U.S. at
628. After awakening Kaupp in his bedroom, the police told him: “‘[W]e need to
16 go and talk.’” Id. Then, handcuffed and clothed only in his underwear, Kaupp was
taken by police to the crime scene and then to the police station, where he was
placed in an interrogation room and questioned. Id. On these facts, the Court held
“[i]t cannot seriously be suggested that when the detectives began to question
Kaupp, a reasonable person in his situation would have thought he was sitting in
the interview room as a matter of choice, free to change his mind and go home to
bed.” Id. at 632.
Kaupp involved significantly different facts from the facts before us in
Olvera’s case, and we conclude it is easily distinguishable. In Olvera’s case, the
record reflects that earlier that same day, he was questioned about Villaruel’s
whereabouts and then released. Later, when police wanted to discuss the matter
further, Olvera was not wakened by police in his home; instead, police called him
while he was home; while fully clothed, he waited for the police outside his
apartment. While Kaupp was interviewed in a police interrogation room, Olvera’s
was interviewed in the front seat of an unlocked vehicle.
Giving appropriate deference to the trial court’s findings, the trial court’s
finding that Olvera was not in custody during his initial interview with Detective
Hahs is supported by the record. The trial court could reasonably believe the
testimony of Deputy Russell, who testified that Department policy required
17 persons being detained to be handcuffed while being driven to another destination
for questioning. The trial court’s conclusion that Olvera was not in custody when
initially handcuffed is further reinforced by testimony that (1) Olvera’s handcuffs
were removed shortly after arriving at Villaruel’s apartment complex, (2) the doors
to the SUV Olvera occupied were not locked during the course of the interview,
and (3) Olvera was not told while at his apartment complex or after arriving at
Villaruel’s complex that he was being arrested. We conclude the record supports
the trial court’s conclusion that Olvera’s movement was not significantly restricted
to the degree associated with an arrest when his interview with Detective Hahs
began. See State v. Sheppard, 271 S.W.3d 281, 289 (Tex. Crim. App. 2008)
(explaining that the use of handcuffs does not automatically convert a temporary
detention into a Fourth Amendment arrest).
We also are not persuaded that custody arose when Olvera contradicted his
statement that he dropped Villaruel off around ten o’clock that evening. Although
Olvera and Sazo were the immediate focus of the investigation, Detective Hahs
told Olvera early during his interview that police were in the process of gathering
information, and Detective Hahs testified that he did not have probable cause for
an arrest when his interview with Olvera began. The record also does not
demonstrate that Detective Hahs communicated the existence of probable cause to
18 Olvera when the interview began. Even though Olvera and Sazo were the focus of
the investigation during their interviews, being the focus of an investigation,
without more, is not sufficient to elevate an investigative detention to a custodial
interrogation; the suspect’s freedom of movement must still be restricted to the
degree associated with a formal arrest. Gardner v. State, 306 S.W.3d 274, 293-94
(Tex. Crim. App. 2009), cert. denied, 131 S.Ct. 103, 178 L.Ed.2d 64, 79 U.S.L.W.
3197 (2010). We conclude the trial court, on the record before it, could reasonably
conclude that Olvera’s interview began as an investigative detention rather than as
a custodial interrogation.
Alternatively, Olvera argues that custody attached in the course of his
interview with Detective Hahs. Sometimes, depending on the circumstance, a
consensual inquiry may escalate into custodial interrogation. See Dowthitt, 931
S.W.2d at 255 (“[T]he mere fact that an interrogation begins as noncustodial does
not prevent custody from arising later; police conduct during the encounter may
cause a consensual inquiry to escalate into custodial interrogation.”). Although the
manifestation of probable cause does not automatically establish custody, “custody
attaches if the manifestation of probable cause, combined with other
circumstances, would lead a reasonable person to believe that he is under restraint
to the degree associated with an arrest.” Garcia v. State, 237 S.W.3d 833, 837
19 (Tex. App.—Amarillo 2007, no pet.). Circumstances relevant in determining
whether a person is “in custody” include (1) the location where the person is
questioned, (2) the duration of the questioning, (3) the statements that are made
during the interview, (4) the presence or absence of physical restraints when the
person is questioned, and (5) whether the person is released at the end of the
interview. Howes v. Fields, 132 S.Ct. 1181, 1189, 182 L.Ed.2d 17, 80 U.S.L.W.
4154 (2012).
Like the objective facts that were before the Court in Dowthitt, Olvera’s case
includes a pivotal admission. See Dowthitt, 931 S.W.2d at 256; see also Ruth v.
State, 645 S.W.2d 432, 435 (Tex. Crim. App. 1979) (determining that suspect was
in custody from the moment he admitted to committing the shooting); Xu v. State,
100 S.W.3d 408, 414 (Tex. App.—San Antonio 2002, pet. ref’d). In Olvera’s case,
Olvera’s pivotal admission revealed that he had been a participant in Villaruel’s
murder. When Olvera admitted he moved Villaruel’s body, Olvera was inside a
patrol car, he was within short distance of several police officers, and he was at a
location several miles from his home. Additionally, when Olvera admitted facts
indicating he had become involved in Villaruel’s murder, a detective was
positioned near the SUV. When Olvera’s pivotal admission occurred, Detective
Hahs did not tell Olvera that he was free to terminate the interview and leave.
20 Olvera’s admission that his participation included moving Villaruel’s body is an
objective circumstance showing that, at that point in the interview, no reasonable
person would still believe he remained free to leave.
Immediately after advising Detective Hahs that he helped move Villaruel’s
body, police failed to give Olvera his Miranda warnings. At that point, because
Olvera told police his involvement included moving Villaruel, probable cause was
manifest. For Fifth Amendment purposes, we conclude that Olvera was in custody
when he told Detective Hahs that he helped Sazo move Villaruel’s body. See
Dowthitt, 931 S.W.2d at 256-57.
Delayed Warnings
Olvera contends his written statement should have been suppressed even
though he made it after receiving Miranda warnings. According to Olvera,
Detective Hahs deliberately delayed giving Miranda warnings to secure a written
confession. See Missouri v. Seibert, 542 U.S. 600, 608-09, 124 S.Ct. 2601, 159
L.Ed.2d 643 (2004) (plurality opinion). The State argues the trial court could
reasonably find that any Miranda violation resulted from Detective Hahs’s
mistaken belief that Olvera was not in custody until the warning was given; the
State concludes that Olvera’s written confession remains one that he gave police
voluntarily. See Oregon v. Elstad, 470 U.S. 298, 318, 105 S.Ct. 1285, 84 L.Ed.2d
21 222 (1985) (holding that a person who provides incriminating information may, in
certain circumstances, still provide a voluntary confession after receiving Miranda
warnings).
Olvera’s argument relies on Seibert, which applies to two-step interrogations
involving deliberate police misconduct. Carter, 309 S.W.3d at 37-38. If an officer
intended to employ a “question first, warn later” interrogation technique in a
deliberate effort to circumvent a suspect’s Miranda protections, the effectiveness
of a mid-stream Miranda warning is evaluated from a totality-of-the-circumstances
inquiry, and from the perspective of a reasonable person in the suspect’s shoes,
irrespective of the officer’s intent. Id. at 37. When conducting the review required
by Seibert, a highly deferential review is applied in reviewing the trial court’s
determination on the question of whether an officer deliberately employed a
“question first, warn later” technique to circumvent a suspect’s right to be warned
of his constitutional right against self-incrimination. Id. at 39-40.
When officers use a two-step interrogation technique in a calculated way to
undermine Miranda warnings, the post-warning statements must be excluded
unless curative measures are taken before the post-warning statement is made. See
Martinez v. State, 272 S.W.3d 615, 626 (Tex. Crim. App. 2008) (citing Seibert,
542 U.S. at 619 (Kennedy, J., concurring)). According to Olvera, Martinez
22 supports his claim that the trial court should have suppressed his written
confession. In Martinez, police arrested Martinez on a warrant, and he then gave
both of the statements at issue at the police station. Id. at 617-18. Under those
facts, the Texas Court of Criminal Appeals concluded that the absence of Miranda
warnings at the beginning of Martinez’s interrogation was not the result of a
mistaken belief that he was not in custody. Id. at 617-18, 626-27.
Olvera’s case is distinguishable. Olvera was not interviewed at the station.
Although Detective Hahs communicated his view that he believed Olvera was
“right smack in the middle of it,” that statement occurred before Villaruel was in
police custody. Our facts also involve numerous trial court findings, entitled to
deference, that favor the view that Detective Hahs did not consider Olvera to be in
police custody during the majority of the interview. Additionally, in this case, after
Olvera admitted his involvement in Villaruel’s murder, Detective Hahs presented
Olvera with a written confession form and warned him that he had certain rights,
such as the right to counsel. While some interrogation occurred between the point
that custody attached and the point that Olvera received his Miranda warnings, and
that part of the questioning constitutes a violation of Olvera’s Miranda rights, a
Miranda violation, in and of itself, does not require a trial court to automatically
23 suppress a statement made subsequent to the suspect being provided Miranda
warnings. See Carter, 309 S.W.3d at 36.
However, that portion of the interview that occurred after Olvera admitted
his involvement in the murder and before Olvera was given his Miranda warnings
are required to be suppressed. After probable cause arose for Olvera’s arrest,
Detectives Hahs and Echols questioned Olvera for approximately six minutes
before warning Olvera about his right to remain silent. Nevertheless, during that
six minute period, the interview remained conversational, Olvera remained calm
and cooperative, and the detectives did not direct any aggressive or threatening
behavior toward him. See id. at 40.
After warning Olvera of his Miranda rights, Detective Hahs asked that
Olvera write down what Olvera told him about the matter. The trial court could
reasonably view Detective Hahs’s request as a request and not a command; that
interpretation of Detective Hahs’s request is consistent with the fact that Detective
Hahs left Olvera while he wrote out his statement and the fact that Olvera’s written
statement contains significant additional detail to the information Olvera had
disclosed to the detectives orally.
Although a six minute custodial interrogation is longer than the one before
the Court of Criminal Appeals in Carter, that Court also stated that “[w]here the
24 totality of these facts fall on the Elstad-Seibert continuum, though, is a question on
which reasonable minds may disagree.” Id. at 41. We conclude that reasonable
minds may disagree given the circumstances before the court here; nevertheless,
the trial court’s determination, given the fact that the trial court is in a better
position to evaluate whether the officers intended to undermine Olvera’s Miranda
rights, is a matter on which the trial court is entitled to our deference. In this case,
the trial court found that Olvera was not in custody before he received Miranda
warnings. Although we disagree with the trial court’s legal conclusion about the
precise moment when custody attached, the trial court also found that Detective
Hahs did not deliberately employ a question first and warn later approach. See
Tucker v. State, 369 S.W.3d 179, 184 (Tex. Crim. App. 2012) (“In reviewing a trial
court’s ruling on a motion to suppress, appellate courts must afford great deference
to the trial court’s findings of historical facts as long as the record supports those
findings.”). The trial court also found that Detectives Hahs was a credible witness,
and given the fact that the trial court had an opportunity to observe the witnesses
who testified during the hearing, the trial court’s findings that revolve around
questions of credibility are “especially relevant to a deliberateness determination.”
Carter, 309 S.W.3d at 40. After carefully reviewing the record, we cannot say that
the trial court’s rejection of Olvera’s argument that police deliberately attempted to
25 prevent Olvera’s effective exercise of his Miranda rights is implausible, or that the
trial court’s decision is unsupported by the record. Id. at 41.
Olvera also challenges the trial court’s decision to admit his written
statement. He contends that his warned written statement must be suppressed as
involuntary. See Elstad, 470 U.S. at 316-18. “Once a determination has been made
that the pre-warning questioning was not part of a deliberate plan to undermine a
suspect’s Miranda protections, it is still necessary to determine if appellant’s post-
warning statements were voluntarily made.” Carter, 309 S.W.3d at 41.
A Miranda violation alone does not establish that a statement made after the
suspect receives belated Miranda warnings is involuntary. The United States
Supreme Court has stated: “It is an unwarranted expansion of Miranda to hold that
a simple failure to administer the warnings, unaccompanied by any actual coercion
or other circumstances calculated to undermine the suspect’s ability to exercise his
free will, so taints the investigatory process that a subsequent voluntary and
informed waiver is ineffective for some indeterminate period.” Elstad, 470 U.S. at
309.
Many of the trial court’s unchallenged findings support the conclusion that
Olvera’s written statement, made after he was given Miranda warnings, was
voluntary. Olvera does not challenge the trial court’s findings that (1) “[Hahs’s]
26 manner was conversational and the questions asked were not a hostile
interrogation[;]” (2) “Echols stood outside the passenger side door, but did not
block a potential exit for [Olvera;]” (3) “Detectives never told [Olvera] that he was
not free to leave, although they never told him that he was free to leave, either[;]
(4) “[Hahs’s] questions were calculated to get [Olvera] to implicate Sazo in the
murder of Villaruel, not to get [Olvera] to implicate himself[;]” and (5) “there is no
threat expressed or implied that a statement was [going to] be taken forcibly[.]” As
the record of the hearing supports these findings, they are entitled to our deference.
Tucker, 369 S.W.3d at 184.
In support of his argument that his written statement should be suppressed,
Olvera relies on Jones v. State, 119 S.W.3d 766 (Tex. Crim. App. 2003). In Jones,
the Court of Criminal Appeals distinguished Elstad and suppressed a written
confession that police took in an uninterrupted and continuous process after they
obtained an unwarned custodial oral statement. Id. at 775. The Court of Criminal
Appeals noted that Jones did not make a second statement, but simply signed a
written statement that he dictated to the officer before he was warned. Id. Here,
after being warned about his rights, Olvera provided police with a statement
written in his own hand, adding details of the murder to those details he previously
provided orally. In our opinion, Jones is distinguishable by the totality-of-the-
27 circumstances that surround how police obtained Olvera’s warned statement. See
id.
Because Olvera was given Miranda warnings before giving his written
statement, the facts before us are more like the facts before the Court in Carter. In
upholding the trial court’s determination that pre-warning custodial interrogation
did not require suppression of a post-warning statement, the Court of Criminal
Appeals held that “‘[a] subsequent administration of Miranda warnings to a
suspect who has given a voluntary but unwarned statement [may] suffice to
remove the conditions that precluded admission of the earlier statement.’” Carter,
309 S.W.3d at 42 (citing United States v. Nunez-Sanchez, 478 F.3d 663, 669 (5th
Cir. 2007)). In Carter, the officer administered appropriate warnings prior to
further questioning. See id. The Court of Criminal Appeals held the defendant’s
confession, given after he received warnings, satisfied the Elstad standard
notwithstanding the earlier Miranda violation. Id.
Here, the trial court’s finding that Detective Hahs did not deliberately
employ a “question first, warn later” interrogation technique is supported by the
record and Detective Hahs administered appropriate Miranda warnings prior to
further questioning. The record of the suppression hearing also supports the trial
court’s finding that threat and coercion were not used in procuring Olvera’s
28 confession. On the facts in this case, the officer’s failure to administer warnings
earlier than they administered them, unaccompanied by circumstances that were
calculated to undermine Olvera’s exercise of his free will, did not so taint the
investigatory process that it made the warnings he received ineffective; thus,
Olvera’s subsequent written confession was both voluntary and informed. Elstad,
470 U.S. at 309. On this record, we conclude the trial court was free to find that
Olvera’s post-warning written statement was admissible. See id; Carter, 309
S.W.3d at 42.
Unwarned Oral Custodial Statement
Although we have concluded the trial court ruled correctly that Olvera’s
post-warning written statement was admissible, we reach a different conclusion
regarding Olvera’s unwarned custodial statements taken in violation of Miranda.
Statements taken in violation of Miranda are presumptively inadmissible. See
Elstad, 470 U.S. at 307. The trial court determined that custody commenced at the
point when Detective Hahs asked Olvera if he would give a written statement;
however, in our opinion, Olvera was in custody from the point he told Detective
Hahs that he had helped Sazo move Villaruel’s body. See Dowthitt, 931 S.W.2d at
256-57. After that point, Olvera stated blood had gotten on his clothing, and he
admitted that he had stabbed Villaruel. After Detective Hahs asked Olvera if he
29 would give a written statement, and still before warning him of his rights, Olvera
told police that he and Sazo were the only two people involved in the murder,
identified the car he had been driving, denied having gone to a party on the night of
the murder, informed the detectives of his whereabouts that night, and described
the clothing he had been wearing. Although the trial court found that these matters
were not issues related to the case, the record demonstrates otherwise. As these
statements were made after Olvera was in custody and before he was given
Miranda warnings, the trial court was required to grant Olvera’s request to
suppress them. See Elstad, 470 U.S. at 307 (“[U]nwarned statements that are
otherwise voluntary within the meaning of the Fifth Amendment must nevertheless
be excluded from evidence under Miranda.”)
Harm
Having found that it was error to admit some of the testimony at issue, the
standard of review requires that we reverse the judgment unless we determine,
beyond a reasonable doubt, that the constitutional error did not contribute to
Olvera’s conviction or punishment. See Tex. R. App. P. 44.2(a). We do not focus
on the propriety of the outcome, but calculate as much as possible the probable
impact on the jury in light of the existence of other evidence. Wesbrook v. State, 29
S.W.3d 103, 119 (Tex. Crim. App. 2000). In the context of a plea-bargain case, we
30 consider whether the erroneous ruling contributed in some measure to the State’s
leverage in the plea bargaining process. See Holmes v. State, 323 S.W.3d 163, 174
(Tex. Crim. App. 2010) (op. on reh’g). Nevertheless, a conviction following a
guilty plea should not be overturned “when the evidence was of little importance in
obtaining the conviction.” State v. Chupik, 343 S.W.3d 144, 148 (Tex. Crim. App.
2011) (citing Gonzales v. State, 966 S.W.2d 521, 524 (Tex. Crim. App. 1998);
Kraft v. State, 762 S.W.2d 612, 615 (Tex. Crim. App. 1988); McGlynn v. State,
704 S.W.2d 18, 21 (Tex. Crim. App. 1982) (op. on reh’g)).
Additionally, in assessing harm, we consider whether the improperly
admitted evidence was cumulative of other, properly admitted evidence. See Clay
v. State, 240 S.W.3d 895, 904 (Tex. Crim. App. 2007). For instance, in Townsend
v. State, the defendant pled guilty after the trial court overruled the defendant’s
motion to suppress both the in-court and out-of-court identifications. 853 S.W.2d
718, 720 (Tex. App.—Houston [1st Dist.] 1993, no pet.). The Court of Appeals
held the error, if any, in denying the motion to suppress the out-of-court
identification was harmless in light of the properly admitted in-court identification.
Here, most of the evidence challenged by Olvera’s motion to suppress was
admissible. Olvera accepted the State’s plea bargain offer and pled guilty on the
31 strength of his oral and written confessions. Olvera received effective Miranda
warnings before giving his written statement, and Olvera’s written statement
described in more precise detail the information Olvera gave police in his
unwarned custodial oral statement. Had the statements Olvera made after he told
Detective Hahs that he helped move Villaruel’s body been suppressed, the State
could still have used Olvera’s detailed written statement, as well as all of Olvera’s
oral statements up to the point that he was in custody during any subsequent trial.
We conclude that the admissible evidence available to the State in Olvera’s
case was sufficient to secure Olvera’s conviction. We further conclude that the
inadmissible statements were of little importance with regard to the State’s
leverage in obtaining the plea bargain at issue. Because the inadmissible evidence
did not contribute to the State’s bargaining position, we conclude, beyond
reasonable doubt, that the trial court’s failure to grant the motion to suppress
Olvera’s unwarned custodial oral statements did not contribute to Olvera’s
conviction or to his punishment. See Townsend, 853 S.W.2d at 720. We overrule
the appellant’s issues and affirm the trial court’s judgment.
32 AFFIRMED.
________________________________ HOLLIS HORTON Justice
Submitted on September 28, 2012 Opinion Delivered April 24, 2013 Do Not Publish
Before Gaultney, Kreger, and Horton, JJ.