COURT OF APPEALS EIGHTH DISTRICT OF TEXAS EL PASO, TEXAS
JOSE LUIS MORENO, § No. 08-18-00179-CR Appellant, § Appeal from the v. § County Court at Law No. 2 § THE STATE OF TEXAS, of El Paso County, Texas § Appellee. (TC# 20170C06110) §
OPINION
A jury convicted Appellant, Jose Luis Moreno, for burglary of a vehicle. In this appeal
from his conviction, he argues in three issues that his confession to police was inadmissible
because it was not knowingly, intelligently, and voluntarily made and that the evidence was legally
insufficient to prove he lacked consent to enter the victim’s vehicle. We affirm.
BACKGROUND
On April 16, 2017, El Paso Police Department Officer Gavidia was dispatched to a call
regarding a burglary of a vehicle. Officer Gavidia met with the victim, Whitney, at the shelter for
homeless females where she was staying, and the victim led the officer to her vehicle that was
parked nearby. Whitney was scared, teary-eyed, and concerned that all her belongings were gone. She listed the missing items to Officer Gavidia which included, among other possessions, her
father’s green beret hat and some plush animal toys.
The trunk of Whitney’s car was partially opened, and the rear driver’s-seat window was
smashed. Broken glass was scattered inside the car and on the ground near the car door. A broken
vase was also on the ground outside the car. Additionally, the glove compartment was open, and
it appeared as though someone had been rummaging through the car. Whitney told Officer Gavidia
that she did not know who broke into her car.
After speaking to Whitney and observing her car, Officer Gavidia called for a crime-scene
officer to respond to the scene. At trial, Officer Gavidia testified that he would not have called for
a crime-scene officer if these acts been done with Whitney’s consent because the incident would
then have only been in the nature of a civil dispute. A crime-scene officer arrived to take photos
and check Whitney’s car for fingerprints. The officer lifted three prints from the car, and after
being sent to the latent print section of the El Paso Police Department, one of the lifted prints was
identified as having been made by Moreno.
Over a week after the burglary, officers interviewed Moreno at the central police station,
and after the officers advised him of his constitutional rights, Moreno gave a written statement. In
his statement, Moreno acknowledged entering Whitney’s car and taking items from inside:
I remember getting into the car and looking to see what I could find. . . . I only took some soaps and body washes that were inside of the car but did not take anything else. . . . I told [the interviewing officer] that he got my fingerprints from the car because I opened the passenger door to get into the car and I also remember grabbing a vase that I thought was nice for my mother but noticed it was broken.
At the end of the State’s case-in-chief, Moreno moved for a directed verdict on the basis
that there was no evidence showing that he lacked consent to enter Whitney’s car. The trial court
2 denied his motion.
The jury found Moreno guilty and assessed his punishment at 365-days’ confinement and
a $4,000 fine after a punishment phase in which the State admitted several judgments showing
Moreno’s prior convictions for, among other crimes, burglary of a habitation and robbery. The
trial court sentenced Moreno in accordance with the jury’s verdict, and Moreno timely filed his
notice of appeal.
DISCUSSION
Issue One: Whether Moreno’s Statement was Knowingly, Intelligently, and Voluntarily Made
In his first issue, Moreno argues that the trial court erred in ruling that his written statement
was admissible following the court’s hearing outside the jury’s presence on the matter because the
totality of the circumstances showed the statement was not voluntary. The State responds that the
circumstances proven at the hearing show the trial court did not abuse its discretion in finding that
Moreno knowingly, intelligently, and voluntarily waived his rights prior to giving his statement
under both article 38.22 of the Code of Criminal Procedure and Miranda v. Arizona. 1
Underlying Facts
Moreno filed a motion to suppress his confession on the ground that he did not waive his
rights knowingly, intelligently, and voluntarily. Before the State’s case-in-chief, the trial court held
a hearing outside the jury’s presence to determine the admissibility of Moreno’s written statement
to police. El Paso Police Department Officer Villalobos testified that he and his partner met with
Moreno at the central police station after Moreno had been brought there by other officers. Before
speaking with Moreno, Officer Villalobos advised him of the following rights and admonishments
1 See Miranda v. Arizona, 384 U.S. 436 (1966).
3 as Moreno also read them along from a Miranda card: (1) his right not to incriminate himself; (2)
his right to an attorney; (3) his right to remain silent; (4) that anything he said could be used against
him; (5) his right to have an attorney present before and during any questioning; (6) his right to
have an attorney appointed to advise him before and during such questioning; and (7) his right to
terminate the interview at any time. After being so informed, Moreno indicated that he understood
his rights by signing and initialing each of the listed rights on the Miranda card and signing the
bottom of it. Moreno then told the officers that he wanted to “come clean” and agreed to give a
statement.
During the interview, one officer spoke to Moreno while the other officer typed what
Moreno said. Once the written statement was prepared, the officers gave Moreno an opportunity
to review it and make any additions, deletions, or changes to it. Moreno made no changes and
instead signed the beginning and end of each paragraph of the statement to indicate that he did not
want to make any changes to the contents. During the hearing, the trial court admitted both the
Miranda card and Moreno’s signed statement. Moreno’s statement recited that he was informed
of the rights about which Officer Villalobos advised him and recited, “I understand my rights and
I hereby knowingly, intelligently, and voluntarily waive these rights.”
Officer Villalobos testified that he did not threaten Moreno, promise him anything in
exchange for his statement, or deny him any basic necessities such as a restroom, food, or
cigarettes. The officers even brought Moreno some McDonald’s hamburgers during the roughly
two-hour interview. In addition, Moreno did not appear to be under the influence of alcohol or any
narcotic drug. At the conclusion of the hearing, the trial court found that Moreno read and initialed
the Miranda card, that Moreno was not under coercion or duress, that the officers even gave
4 Moreno something to eat, and that, ultimately, Moreno made his statement freely and voluntarily.
The trial court ruled that Moreno’s statement was admissible, and the issue was not relitigated
during trial.
Standard of Review
We review a trial court’s ruling on a motion to suppress under a bifurcated standard of
review. Turrubiate v. State, 399 S.W.3d 147, 150 (Tex. Crim. App. 2013). The trial court’s fact
findings are reviewed for an abuse of discretion. Id. We afford almost total deference to the trial
court’s findings of historical fact that are supported by the record and to mixed questions of law
and fact that turn on an assessment of a witness’s credibility and demeanor. Amador v. State, 221
S.W.3d 666, 673 (Tex. Crim. App. 2007). But we review de novo the trial court’s rulings on
questions of law and mixed questions of law and fact that do not turn on evaluation of credibility
and demeanor. State v. Woodard, 341 S.W.3d 404, 410 (Tex. Crim. App. 2011).
If the trial court makes express findings of fact, we view the evidence in the light most
favorable to its ruling and determine whether the evidence supports the findings. Valtierra v. State,
310 S.W.3d 442, 447 (Tex. Crim. App. 2010). We will uphold the trial court’s ruling if it is
reasonably supported by the record and is correct on any theory of law applicable to the case.
Turrubiate, 399 S.W.3d at 150.
Applicable Law
i. The Constellation of Rights under Article 38.22 and Miranda
Article 38.22 of the Code of Criminal Procedure establishes the safeguards for securing the
privilege against self-incrimination. Joseph v. State, 309 S.W.3d 20, 23 (Tex. Crim. App. 2010);
see also generally TEX. CODE CRIM. PROC. ANN. art. 38.22. It provides that no written statement
5 made by an accused as a result of custodial interrogation is admissible as evidence against him in
any criminal proceeding unless it is shown on the face of the statement that he received the
following warnings: (1) he has the right to remain silent and not make any statement at all and that
any statement he makes may be used against him at his trial; (2) any statement he makes may be
used as evidence against him in court; (3) he has the right to have a lawyer present to advise him
prior to and during any questioning; (4) if he is unable to employ a lawyer, he has the right to have
a lawyer appointed to advise him prior to and during any questioning; and (5) he has the right to
terminate the interview at any time. TEX. CODE CRIM. PROC. ANN. art. 38.22, § 2(a)(1)-(5).
Furthermore, the face of the statement must show that the accused, prior to and during the making
of the statement, knowingly, intelligently, and voluntarily waived his rights. TEX. CODE CRIM.
PROC. ANN. art. 38.22, § 2(b). The warnings provided in Section 2(a) are virtually identical2 to the
Miranda warnings except that the warning that an accused “has the right to terminate the interview
at any time,” as set out in Section 2(a)(5), is not required by Miranda. Herrera v. State, 241 S.W.3d
520, 526 (Tex. Crim. App. 2007).
ii. The State’s Burden to Show a Knowing, Intelligent, and Voluntary Waiver
The State has the burden of showing that a defendant knowingly, intelligently, and
voluntarily waived his article 38.22 and Miranda rights. See TEX. CODE CRIM. PROC. ANN. art.
38.22, § 2(b); Joseph, 309 S.W.3d at 24; Torres v. State, 543 S.W.3d 404, 411 (Tex. App. – El
Paso 2018, pet. ref’d). The State must prove waiver by a preponderance of the evidence. See
Joseph, 309 S.W.3d at 24; Torres, 543 S.W.3d at 411.
2 Because no issue is raised about the distinction between these rights, and because they are discussed together throughout briefing, we will refer to them here as “article 38.22/Miranda rights.”
6 To evaluate whether a suspect knowingly, intelligently, and voluntarily waived his
Miranda rights, we turn to the two-step standard outlined by the United States Supreme Court in
Moran v. Burbine. See Moran v. Burbine, 475 U.S. 412, 421 (1986); Joseph, 309 S.W.3d at 25;
Torres, 543 S.W.3d at 411. First, we determine whether the waiver was voluntary in the sense that
it was the product of a free and deliberate choice rather than intimidation, coercion, or deception.
Moran, 475 U.S. at 421; Joseph, 309 S.W.3d at 25; Torres, 543 S.W.3d at 411. Second, we
determine whether the waiver was made with full awareness of both the nature of the right being
abandoned and the consequences of the decision to abandon it. Moran, 475 U.S. at 421; Joseph,
309 S.W.3d at 25; Torres, 543 S.W.3d at 411. Ultimately, we may conclude that a suspect’s rights
have been waived only if the “totality of the circumstances surrounding the interrogation” reveals
both of the above. Moran, 475 U.S. at 421; Joseph, 309 S.W.3d at 25; Torres, 543 S.W.3d at 411.
Application
i. The First Step: Voluntariness
Here, Officer Villalobos advised Moreno of his right not to incriminate himself, his right
to an attorney, his right to remain silent, that anything he said could be used against him, his right
to have an attorney present, his right to have an attorney appointed, and his right to terminate the
interview at any time. Moreno indicated that he understood his rights by signing and initialing each
of the listed rights on the Miranda card and signing the bottom of it. He then said he wanted to
“come clean” and give a statement. Once the statement was prepared, the officers gave Moreno
the opportunity to review it and make any desired changes to it, and Moreno signed each paragraph
of the statement to indicate his assent to the contents. Furthermore, the officers afforded Moreno
basic necessities and even brought him food during the roughly two-hour interview. The record
7 shows that no threats or promises were made to Moreno. Finally, the face of Moreno’s written
statement recited that he was informed of the rights about which Officer Villalobos advised him
and that he voluntarily waived his rights.
The totality of these circumstances supports the trial court’s findings that Moreno was not
under coercion or duress and gave his statement voluntarily, and we hold that the trial court did
not abuse its discretion in ruling that Moreno’s waiver of rights was voluntary. See Joseph, 309
S.W.3d at 26 (holding that the defendant’s statement was voluntary where a detective warned the
defendant about his rights, where the defendant willingly participated in a six-hour interview,
where at no time did the defendant request an attorney or ask that the interview be stopped, and
where the record showed no evidence of intimidation, coercion, or undue promises by police);
Torres, 543 S.W.3d at 411-12 (holding that the defendant’s statement was voluntary where a
detective warned him about his rights and explained that a waiver of the rights must be knowing,
intelligent, and voluntary, where the defendant responded, “Yes[,]” when asked if he understood
his rights, where the defendant did not request an attorney but instead proceeded to speak
unfettered for approximately 50 minutes, where the defendant never asked that the interview be
terminated or invoked his right to counsel, and where there was no evidence of intimidation,
coercion, or pressure to elicit statements by police).
For his argument that the factual scenario in this case dictates that we must find his
statement to be involuntarily made, Moreno cites to Oursbourn v. State in which the Court of
Criminal Appeals listed eight fact scenarios involving the crucial element of police overreaching
that led to statements being found involuntary in those scenarios. See Oursbourn v. State, 259
S.W.3d 159, 170-71 (Tex. Crim. App. 2008). However, as pointed out by the State, the facts shown
8 at the suppression hearing here are dissimilar to the factual scenarios described in Oursbourn.
Compare id. (providing as examples of circumstances in which statements were found to be
involuntary a situation where “the police officers held a gun to the head of the wounded suspect to
extract a confession” and a situation where “the suspect was held incommunicado for three days
with little food, and the confession was obtained when officers informed him that their chief was
preparing to admit a lynch mob into the jail”). Comparing the facts in this case to the extreme sets
of circumstances listed in Oursbourn, we are not persuaded that Oursbourn compels us to find that
the trial court abused its discretion here.
ii. The Second Step: Awareness
As discussed in our analysis of the voluntariness of Moreno’s statement, Officer Villalobos
testified that he advised Moreno about his article 38.22/Miranda rights and that Moreno indicated
he understood his rights by initialing each of the listed rights on the Miranda card and signing the
bottom of it. Furthermore, Moreno did not appear to be under the influence of alcohol or any drug.
And the face of Moreno’s written statement recited his receipt of warnings about those rights and
that he knowingly and intelligently waived those rights.
These circumstances support the trial court’s findings that Moreno read and initialed the
Miranda card, and we hold that the trial court did not abuse its discretion in ruling that Moreno’s
waiver of rights was done with the requisite awareness to make it knowing and intelligent. See
Joseph, 309 S.W.3d at 27 (holding that the defendant’s statement was made with full awareness
of his rights and the consequences of abandoning them where the article 38.22/Miranda warnings
were read to him and where, when asked if he understood his rights, he replied that he did and
signed his name on a warning card); Torres, 543 S.W.3d at 412-14 (holding that the defendant’s
9 statement was made with full awareness of his rights and the consequences of abandoning them
where the article 38.22/Miranda warnings were read to him, where he affirmatively acknowledged
that he understood his rights and proceeded to speak to the interviewing detective, and where,
despite the defendant’s statements that he had earlier consumed some beer along with 30 Xanax
tablets, witnesses testified that the defendant did not appear to be under the influence of alcohol or
any drug during the interview).
Conclusion
The totality of the circumstances here provided a basis for the trial court’s ruling that both
steps of the Moran v. Burbine standard were met. See Moran, 475 U.S. at 421; Joseph, 309 S.W.3d
at 25; Torres, 543 S.W.3d at 411. Therefore, the trial court did not err in admitting his written
statement. See Turrubiate, 399 S.W.3d at 150 (observing that we must uphold the trial court’s
ruling if it is reasonably supported by the record and is correct on any theory of law applicable to
the case). We thus overrule Moreno’s first issue presented for review.
Issues Two and Three: Whether the Evidence was Legally Sufficient to Prove that Moreno Entered Whitney’s Vehicle without Her Consent
In his second issue, Moreno argues that the trial court erred in denying his motion for
directed verdict based on the State’s failure to prove that lacked consent to enter Whitney’s car,
and in his third issue, he similarly argues that the evidence was legally insufficient to sustain his
conviction for the same reason. The crux of his argument in both issues is that the State failed to
prove the sole element that he lacked the effective consent of the owner to enter the vehicle at issue
where the State “failed to call the owner of the vehicle to testify to [the] issue of consent.” In
response, the State contends that it proved the lack-of-effective-consent element through
circumstantial evidence.
10 We observe that appellate courts treat a point of error complaining about a trial court’s
failure to grant a directed verdict as a challenge to the legal sufficiency of the evidence. See
Williams v. State, 937 S.W.3d 479, 482 (Tex. Crim. App. 1996); Elias v. State, No. 08-15-00057-
CR, 2016 WL 6473055, at *2 (Tex. App. – El Paso Nov. 2, 2016, no pet.) (not designated for
publication). And as both sides agree that Issues Two and Three involve the same claim and group
them together in their briefing, we will likewise address the two issues together.
In reviewing the legal sufficiency of the evidence, we apply the standard set out in Jackson
v. Virginia. Brooks v. State, 323 S.W.3d 893, 894-95 (Tex. Crim. App. 2010) (citing Jackson v.
Virginia, 443 U.S. 307, 319 (1979)). Under that standard, a reviewing court must consider all
evidence in the light most favorable to the verdict and, in doing so, determine whether a rational
justification exists for the jury’s finding of guilt beyond a reasonable doubt. Brooks, 323 S.W.3d
at 894-95. The trier of fact is the sole judge of the weight and credibility of the evidence, and we
must presume that the fact finder resolved any conflicting inferences in favor of the verdict and
defer to that resolution. See TEX. CODE CRIM. PROC. ANN. art. 38.04; Dobbs v. State, 434 S.W.3d
166, 170 (Tex. Crim. App. 2014). Thus, we are not permitted to reevaluate the weight and
credibility of the evidence or substitute our judgment for that of the fact finder. Isassi v. State, 330
S.W.3d 633, 638 (Tex. Crim. App. 2010).
In reviewing the legal sufficiency of the evidence, we treat direct and circumstantial
evidence equally. Clayton v. State, 235 S.W.3d 772, 778 (Tex. Crim. App. 2007). Circumstantial
evidence is “direct proof of a secondary fact which, by logical inference, demonstrates the ultimate
fact to be proven.” Taylor v. State, 684 S.W.2d 682, 684 (Tex. Crim. App. 1984). Circumstantial
11 evidence alone can be sufficient to establish guilt. Clayton, 235 S.W.3d at 778. Each fact need not
point directly and independently to the guilt of the appellant, as long as the cumulative force of all
the incriminating circumstances is sufficient to support the conviction. Hooper v. State, 214
S.W.3d 9, 13 (Tex. Crim. App. 2007).
A person commits burglary of a vehicle if he: (1) without the effective consent of the
owner; (2) breaks into or enters a vehicle or any part of a vehicle; and (3) intends to commit any
felony or theft. TEX. PENAL CODE ANN. § 30.04(a). Effective consent is defined as assent in fact,
whether express or apparent, and includes assent by a person legally authorized to act for the
owner. Mims v. State, 434 S.W.3d 265, 273 (Tex. App. – Houston [1st Dist.] 2014, no pet.); see
also TEX. PENAL CODE ANN. §§ 1.07(a)(11), (19), 31.01(3).
The State does not need to present direct testimonial evidence from an owner to establish
the owner’s lack of consent, and the State may instead prove lack of consent through circumstantial
evidence. See, e.g., Taylor v. State, 508 S.W.2d 393, 397 (Tex. Crim. App. 1974); Alex v. State,
483 S.W.3d 226, 229 (Tex. App. – Texarkana 2016, pet. ref’d); Lee v. State, No. C14-90-00687-
CR, 1993 WL 81651, at *2 (Tex. App. – Houston [14th Dist.] Mar. 25, 1993, no pet.) (not
designated for publication). For example, our sister courts have held that sufficient circumstantial
proof of lack of consent to enter an area was shown through evidence that a defendant gained entry
to an area by breaking a window and that the defendant took items belonging to another from
inside the area. See Alex, 483 S.W.3d at 229-30 (holding that a fair and reasonable inference from
the evidence was that the defendant – a recently-terminated, former Jack in the Box employee –
entered the restaurant without the owner’s alleged consent, even though no witness specifically
12 testified to a lack of consent, where: (1) the restaurant was closed for business at the time of the
burglary; (2) the defendant gained entry by smashing a window with a piece of concrete and
crawling through the broken window; and (3) the defendant took several hundred dollars from the
restaurant’s safe); Lee, 1993 WL 81651, at *1-2 (holding that there was ample evidence of the
owner’s lack of consent to enter a store, even though the owner was unavailable to testify at trial,
where: (1) the store was closed for business at the time of the burglary; (2) the defendant destroyed
the glass front door of the store and entered; (3) the defendant took cartons of cigarettes from the
store; (4) upon being confronted by a security guard at the scene, the defendant fled; and (5) the
store’s loss prevention manager testified that nobody had permission to break into the store). In
addition, this Court has held that lack of consent to enter an area can be shown circumstantially by
evidence that a victim did not know who gained entry to the area and that the victim expressed
concern about the entry. See Price v. State, No. 08-01-00073-CR, 2002 WL 471343, at *4 (Tex.
App. – El Paso Mar. 28, 2002, pet. ref’d) (not designated for publication) (holding that the evidence
was legally sufficient to prove lack of consent to enter the victim’s home, even though the State
never asked the victim if the defendant’s entry into her home and removal of property from it were
without her consent, where: (1) the victim was angry upon discovering what had happened; and
(2) the victim conveyed her confusion about who had entered her home).
Although candidly acknowledging the deferential standard of review that we must apply,
Moreno nonetheless asserts that the State’s fatal error in this case was its failure to have Whitney
testify to a lack of consent to enter her car and that there is nothing to circumstantially fill in this
gap in the State’s evidence. However, we believe the record provides ample circumstantial
13 evidence allowing the jury to make a fair and reasonable inference that Moreno lacked Whitney’s
consent to enter her car.
Here, one of the car’s windows was smashed, leaving broken glass scattered both inside
and outside the car. The trunk was partially open, the glove compartment was open, the car
appeared as though someone had been rummaging through it, and a broken vase was on the ground
outside the car. In Moreno’s statement, he admitted entering Whitney’s car and taking items from
inside. These facts provide for a fair and reasonable inference that Moreno gained entry to
Whitney’s car by breaking a car window and then took items belonging to her from inside her car,
and the jury therefore had a rational basis for finding that the State proved the element of a lack of
effective consent to enter Whitney’s car. See Alex, 483 S.W.3d at 229-30; Lee, 1993 WL 81651,
at *1-2.
Furthermore, additional circumstantial evidence showed that Whitney had no idea who
broke into her car, Whitney was scared, teary-eyed, and concerned about the burglary, and
Whitney’s belongings, consisting of her father’s green beret hat and some plush animals, were
gone. Officer Gavidia also testified that he would not have proceeded to request a crime-scene
officer if someone had entered Whitney’s car with her consent. Based on these additional facts
showing that the victim did not know who entered her car and that the victim was concerned about
the entry, the jury was afforded with another independent basis for finding that the State proved
the lack-of-effective-consent element. See Price, 2002 WL 471343, at *4.
Thus, we hold that the evidence was legally sufficient to prove that Moreno lacked
Whitney’s effective consent to enter her vehicle. So holding, we overrule Moreno’s second and
third issues presented for review.
14 CONCLUSION
The trial court’s judgment is affirmed.
GINA M. PALAFOX, Justice December 4, 2020
Before Alley, C.J., Rodriguez, and Palafox, JJ.
(Do Not Publish)