State v. Consaul

960 S.W.2d 680, 1997 Tex. App. LEXIS 1940, 1997 WL 169304
CourtCourt of Appeals of Texas
DecidedApril 10, 1997
Docket08-96-00343-CR
StatusPublished
Cited by17 cases

This text of 960 S.W.2d 680 (State v. Consaul) 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
State v. Consaul, 960 S.W.2d 680, 1997 Tex. App. LEXIS 1940, 1997 WL 169304 (Tex. Ct. App. 1997).

Opinion

*683 OPINION

BARAJAS, Chief Justice.

This is a State’s appeal from an order of the trial court granting Appellee’s motion to suppress her oral and written statements. We affirm.

I. SUMMARY OF THE EVIDENCE

The record in the instant case establishes that on Sunday, January 21, 1996, law enforcement officers were dispatched to the Horizon Lodge in Horizon City, Texas, in response to a reported kidnapping. Appel-lee, then residing at the Horizon Lodge, related to the responding officers that her eighteen-month-old child was missing. She stated that she left her apartment to make a telephone call and discovered the child missing upon her return. Appellee signed a prosecution statement and law enforcement officials started a search for the missing child.

Detective James Reuter of the El Paso County Sheriffs Department testified that he responded to the initial call and obtained information from Appellee regarding possible suspects in the purported kidnapping. The following day, January 22, 1996, Reuter asked Appellee if she would go to the County Sheriff’s Office in order to discuss the matter away from the crowds and media. He testified that she agreed to go there, but further noted that she had a transportation problem in that her car was not in good running condition. She agreed to accompany Reuter. Detective Reuter stated, in transporting Ap-pellee to the sheriff’s office, she was not handcuffed and she rode in the front passenger seat. Appellee did not raise the issue of contacting an attorney.

Upon arrival at the sheriff’s office, Detective Reuter met with Detectives Daniel Diaz and Onesimo Esparza. Together they conducted an interview with Appellee. Detectives Diaz and Esparza testified that throughout the interview, Appellee was never handcuffed and was otherwise free to leave, if she so desired. Appellee was purportedly being interviewed as a witness to the kidnapping. Detective Diaz stated that at the outset of the interview, Appellee was read her Miranda warnings. The detectives stated that Appellee was not under the influence of alcohol or drugs, was not promised anything or coerced with regard to the interview, and was never denied access to beverages, the bathroom, or cigarettes. Diaz testified that every time Appellee went to the bathroom, someone waited for her in the hall in order to monitor where she was in order to make sure she did not leave.

Detective Diaz further stated that the Ap-pellee’s interview was videotaped. This videotape was made part of the record at the hearing on Appellee’s motion to suppress and is properly before this Court. This videotape does indeed establish that Appellee was read her Miranda warnings and she signed a card waiving those rights. The course of the interview initially involved the existence of various suspects and the circumstances under which Appellee’s daughter disappeared. Ap-pellee was asked if she would take a lie detector test. Appellee was then asked if she had harmed the child and the interview immediately became accusatory concerning the disappearance of her child. The detectives accused Appellee of lying about the circumstances of her daughter’s disappearance. Nonetheless, Appellee continued to deny any knowledge of the whereabouts of her child. The videotape shows Sheriff’s Detective Captain Gary Gabbert enter the interview room, question Appellee about various aspects of the case and likewise state that he did not believe Appellee’s “story.” Captain Gabbert then left the interview room. The interview continued at an increased pace, with the questions going back and forth between aspects of Appellee’s story and accusations that she was lying. Appellee continually denied involvement in the disappearance. The following exchange then occurred:

DIAZ: You wish you could tell us.
APPELLEE: I wish I knew.
DIAZ: A lot of—
APPELLEE: I told you everything I know, everything.
DIAZ: No.
ESPARZA: Do you have a—
DIAZ: Do you want to go home?
APPELLEE: Yes, I want to go home.
*684 DIAZ: Well, tell us so we can take you home. Just tell us where she’s at.
APPELLEE: I told you everything.
DIAZ: Let’s go pick her up. Let’s go.
APPELLEE: I don’t know where she is.

After further questioning, Esparza pushed the table back and both Esparza and Diaz got in close proximity to Appellee and appeared to touch and stroke her from time to time. Throughout the interview, Appellee was seated in the corner of the interview room. The following exchange occurred:

DIAZ: Don’t hold it in.
APPELLEE: Am I allowed a lawyer still?
DIAZ: You need a preacher.
ESPARZA: That’s what you need.
APPELLEE: This is ridiculous.
DIAZ: You need a preacher. She needs a preacher. She needs a preacher.
APPELLEE: I don’t believe she’s dead.
I.don’t.
DIAZ: Why? Oh, things are getting to you now, huh? If you would have thought in the long run. ‘Oh my God, things are going to happen,’ you would have been more prepared, huh? But you weren’t prepared for this type of interview, huh? You thought we were just going to — just skim it and go on •your merry way and not even have a chance or an opportunity to look for Carina otherwise you would have been more prepared.
APPELLEE: I don’t know where she is.
DIAZ: Just like in the movies. Why do you bring up movies all the time? You read papers. You read the real thing. You watch television. You know about that girl that was mentioned a little while ago, you know.
APPELLEE: I don’t know where she is.
ESPARZA: You knew about it.
APPELLEE: Am I still allowed a lawyer?
DIAZ: You want a lawyer?
APPELLEE: Yes.
DIAZ: For what?
APPELLEE: Because it sure sounds like you guys are trying to imply me on this.
DIAZ: Well say if you want a lawyer. Don’t ask us if you’re entitled to a lawyer. You — you dreamt up this damn story. You tell us if you want a lawyer. I mean you’re the one that’s making this damn story up. For Christ’s sake, you’ve been making the story up that you didn’t kill your daughter; that somebody kidnaped her, some stranger—
APPELLEE: I didn’t.
DIAZ: You tell us if you want a lawyer. I can’t tell you. ‘Hey, get a lawyer.’ I can’t tell you that.

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Bluebook (online)
960 S.W.2d 680, 1997 Tex. App. LEXIS 1940, 1997 WL 169304, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-consaul-texapp-1997.