Gomes v. State

9 S.W.3d 373, 1999 WL 1080989
CourtCourt of Appeals of Texas
DecidedJanuary 13, 2000
Docket14-97-00444-CR
StatusPublished
Cited by56 cases

This text of 9 S.W.3d 373 (Gomes v. State) is published on Counsel Stack Legal Research, covering Court of Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Gomes v. State, 9 S.W.3d 373, 1999 WL 1080989 (Tex. Ct. App. 2000).

Opinions

MAJORITY OPINION

MAURICE E. AMIDEI, Justice.

Denis Maricler Gomes appeals from her conviction for murder. Following the denial of her motion to suppress her confession, appellant pleaded nolo contendere. The trial court found appellant guilty and, in accordance with her plea-bargained agreement with the State, sentenced her to fifteen years imprisonment. We initially dismissed this appeal for lack of jurisdiction in our unpublished opinion dated March 4, 1999. On July 8, 1999, we issued our opinion on motion for rehearing withdrawing our initial opinion of March 4, 1999, and reinstating this appeal finding we have jurisdiction. This opinion is accordingly issued to review the trial court’s ruling denying appellant’s motion to suppress. Appellant asserts nine, interrelated points of trial court error, contending that: (1) her oral confession was inadmissible because it was involuntary and in violation of the Fourteenth Amendment; (2) her oral confession was involuntary under Texas law; (3) her post-arrest, videotaped confession should have been suppressed because it was obtained in violation of article 38.22 of the Texas Code of Criminal Procedure; (4) her post-arrest, videotaped confession should have been suppressed because it was obtained in violation of her Miranda1 rights; (5) her post-arrest, videotaped confession should have been suppressed because the recording does not show that she waived any rights as re[375]*375quired by article 38.22 of the Texas Code of Criminal Procedure; (6) her videotaped confession should have been suppressed because it was the fruit of an illegal arrest; (7) her videotaped confession should have been suppressed because it was involuntary, in violation of the Fourteenth Amendment; (8) her videotaped confession should have suppressed because it was involuntary, in violation of Texas constitutional and statutory law; (9) the trial court should have excluded any oral statements related to her offer to take police to the location where the weapon was discarded. We affirm.

I. BACKGROUND.

Appellant was an employee of Mexico Lindo, a nightclub located in Houston. On the evening of June 14,1996, appellant met Fidel Marzoa (Marzoa, also known as El Cubano) at the nightclub and agreed to accept $200.00 from him in exchange for sexual favors. Appellant left the nightclub with Marzoa and went to his apartment. Appellant contended that Marzoa refused to pay her and violently raped her. Appellant freed herself from Marzoa and ran out of the apartment, returning to Mexico Lin-do. Appellant stated that she feared Mar-zoa would return to the nightclub and kill her, so she stayed in the parking lot, hiding behind some bushes. Marzoa returned to Mexico Lindo. After exiting his vehicle, appellant approached Marzoa in the parking lot and fired two shots into Marzoa, killing him. Appellant then ran away from the scene and went to her home.

On July 3, 1996, at approximately 8:00 a.m., Houston Police Officers Martinez and Benevitas, respectively, went to appellant’s home and asked her to accompany them to the police department to take a polygraph examination. Appellant agreed and was taken by the officers to the Houston Police Department. Appellant arrived at the polygraph office at 9:40 a.m., and Officer JoAnn Valverde, the polygraph examiner, introduced herself to appellant. Officer Valverde then escorted appellant to a waiting room and excused herself while she talked to Officers Martinez and Benevitas. After talking to the two investigating officers, Valverde returned to talk to appellant 45 minutes later. Valverde told appellant how the polygraph machine worked, and advised her that she did not have to take the polygraph. Valverde told appellant she was free to leave if she did not want to take the test, and that she was not under arrest. Valverde then left appellant alone for about an hour while she prepared the questions she was going to ask appellant. Valverde commenced the polygraph examination at 12.11 p.m., and concluded the test 20 to 25 minutes later. Valverde then told appellant she was not telling the truth, and asked appellant if she wanted to tell her why she did not pass the test. Appellant told Valverde that she was telling the truth, and the machine was lying. Valverde told appellant that when she finished the test, Valverde would know two things about appellant: she would know if appellant was a liar, and she would know if appellant shot El Cubano. At this point, Valverde testified that appellant became very emotional, and started crying. For the next two hours, Valverde talked to appellant about the events that occurred that night. Appellant told Valverde that Valverde, being a woman, would understand; that El Cubano raped her, she was scared, and that she had the -right to defend herself. Valverde stated that she did not threaten appellant, force her to say anything, and that appellant’s subsequent statements were made of her own free will. She then told Valverde how Marzoa raped her, and she ran out of his apartment afterwards. She told Valverde she was angry, and she went back to the club and waited in the bushes for Marzoa to come back. When appellant saw Marzoa getting out of a car, she shot him. She then told Valverde that she left and threw the gun along the way. Valverde paged Officer Martinez, and he came back to the station. Appellant told Officer Martinez about the offense, and he asked appellant if she would give him a statement. Appellant [376]*376agreed to give Martinez a video statement. Appellant begged Valverde to take appellant’s children when she left to go with Martinez, and asked for Valverde’s telephone number. Martinez told appellant he would get a telephone number later because Valverde did not give anyone her number. Valverde never gave appellant her rights warning, and testified that appellant was not in custody and was free to go at anytime. Valverde did not think the warnings were required under these circumstances.

At 4:00 p.m., Officer Martinez took appellant to the Homicide Division for further questioning. The police officers set up a video camera to record appellant’s statement. Appellant was not informed that her statement would be recorded. Officer Martinez informed appellant of her Miranda rights when the video recording started. Appellant confirmed that she understood her rights. Appellant then gave her detailed statement to Officer Martinez concerning the shooting in the parking lot of Mexico Linda. Following her confession, appellant was charged with murder and taken to the Harris County Jail.

II. STANDARD OF REVIEW.

Appellate courts should afford almost total deference to a trial court’s rulings on “application of law to fact questions,” also known as “mixed questions of law and fact,” if the resolution of those ultimate questions turns on an evaluation of credibility and demeanor of the witnesses. Guzman v. State, 955 S.W.2d 85, 89 (Tex.Crim.App.1997). Appellate courts may review de novo “mixed questions of law and fact” not falling within this category. Id. Guzman applies to appellate review of a motion to suppress a confession. Hernandez v. State, 957 S.W.2d 851, 852 (Tex.Crim.App.1998).

In this case, the trial court heard testimony from: (1) Officer Martinez, who took appellant’s videotaped statement; (2) Officer JoAnn Valverde, who administered appellant’s polygraph examination and interrogated her; and (3) appellant who testified through an interpreter.

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Bluebook (online)
9 S.W.3d 373, 1999 WL 1080989, Counsel Stack Legal Research, https://law.counselstack.com/opinion/gomes-v-state-texapp-2000.