Vasquez, Jose

• Court: Court of Appeals of Texas
• Decided: January 22, 2015
• Docket: PD-0078-15
• Status: Published

Opinion

PD-0078-15 No.____________ January 22, 2015

In the Court of Criminal Appeals

 No. 14-12-00096-CR In the Court of Appeals for the Fourteenth District of Texas at Houston  No. 1333231 th In the 228 District Court of Harris County, Texas 

JOSE VASQUEZ Appellant V. THE STATE OF TEXAS Appellee

 STATE’S PETITION FOR DISCRETIONARY REVIEW AFTER REMAND 

DEVON ANDERSON District Attorney Harris County, Texas

ERIC KUGLER Assistant District Attorney Harris County, Texas TBC No. 796910

1201 Franklin, Suite 600 Houston, Texas 77002 Tel.: 713-755-5826 FAX: 713-755-5809

Counsel for Appellee

ORAL ARGUMENT REQUESTED TABLE OF CONTENTS

INDEX OF AUTHORITIES ..................................................................................... ii

STATEMENT REGARDING ORAL ARGUMENT ................................................iv

STATEMENT OF THE CASE................................................................................... v

STATEMENT OF PROCEDURAL HISTORY ......................................................... v

STATEMENT OF FACTS ......................................................................................... 1

GROUNDS FOR REVIEW ....................................................................................... 3

A. The lower court’s majority opinion erred in holding that the appellant preserved his two-step interrogation complaint for appellate review. ...................3

B. The lower court’s majority opinion erred in holding that the appellant was subject to custodial interrogation prior to receiving and waiving his legal rights. 3

C. The lower court’s majority opinion erred in holding that a two-step interrogation technique was deliberately employed by the police. ........................3

D. The lower court’s majority opinion erred in holding that the appellant was harmed by the admission of his statement when there was overwhelming evidence of the appellant’s guilt independent of his statement to the police. ........3

ARGUMENT ............................................................................................................. 4

PRAYER FOR RELIEF ........................................................................................... 17

CERTIFICATE OF SERVICE AND COMPLIANCE............................................. 18

i INDEX OF AUTHORITIES

CASES

Barfield v. State, 416 S.W.3d 743 (Tex. App.— Houston [14th Dist.] 2013, no pet.)........................................................................7 Batiste v. State, AP-76,600, 2013 WL 2424134 (Tex. Crim. App. June 5, 2013) cert. denied, 134 S. Ct. 1000 (U.S. 2014) ........................................................ 7, 11

Carter v. State, 309 S.W.3d 31 (Tex. Crim. App. 2010)..................................................... 7, 13, 14

Maxwell v. State, 73 S.W.3d 278 (Tex. Crim. App. 2002)................................................................12 Missouri v. Seibert, 542 U.S. 600 (2004) ...............................................................................................7 Nguyen v. State, 292 S.W.3d 671 (Tex. Crim. App. 2009) ................................................................8 Oregon v. Elstad, 470 U.S. 298 (1985) .............................................................................................13 People v. Delatorre, B230591, 2012 WL 909659 (Cal. Ct. App. Mar. 19, 2012) .................................15

Phillips v. Bramlett, 288 S.W.3d 876 (Tex. 2009)................................................................................. 11

Resendez v. State, 256 S.W.3d 315 (Tex. App.— Houston [14th Dist.] 2007)...................................................................................10

State v. Hughes, 272 S.W.3d 246 (Mo. Ct. App. 2008) ..................................................................15

ii Vasquez v. State, 14-12-00096-CR, 2014 WL 7365945 (Tex. App.— Houston [14th Dist.] Dec. 23, 2014, pet. filed) ......................................................v

Vasquez v. State, 397 S.W.3d 850 (Tex. App.— Houston [14th Dist.] March 28, 2013, pet. granted) ..............................................v

Vasquez v. State, 411 S.W.3d 918 (Tex. Crim. App. 2013) ................................................................v

STATUTES

TEX. CODE CRIM. PROC. art. 38.22 §3 (West 2010) ...............................................8, 9

RULES

TEX. R. APP. P. 33.1(a) ....................................................................................... 10, 12 TEX. R. APP. P. 66.3 ....................................................................................................4 TEX. R. APP. P. 68.2 ....................................................................................................v TEX. R. APP. P. 68.4 (c) ............................................................................................. iv

iii STATEMENT REGARDING ORAL ARGUMENT

Pursuant to TEX. R. APP. P. 68.4 (c), the State requests oral argument because

the fact-finding by the majority opinion of the court of appeals played a decisive

role in the outcome of this case, and an oral argument may help to further clarify

the factual issues.

iv TO THE HONORABLE COURT OF CRIMINAL APPEALS OF TEXAS:

STATEMENT OF THE CASE

The appellant was charged with the capital murder of Suu Nguyen and

Aleksander Lobos (CR – 2). He pled “not guilty” to the charge, and the case was

tried to a jury (CR – 159). The jury found the appellant guilty, and the court

thereafter assessed punishment at life in prison.

STATEMENT OF PROCEDURAL HISTORY

The appellant appealed, and the court of appeals reversed the conviction,

finding that the appellant’s statement to the police was the result of a two-step

interrogation and that he was harmed by the admission of that statement. Vasquez v.

State, 397 S.W.3d 850 (Tex. App.—Houston [14th Dist.] March 28, 2013, pet.

granted). This Court vacated and remanded for the trial court to make factual

findings. Vasquez v. State, 411 S.W.3d 918 (Tex. Crim. App. 2013). After the trial

court made findings supporting the admission of the statement, the court of appeals

again reversed the conviction over a strong dissent. Vasquez v. State, 14-12-00096-

CR, 2014 WL 7365945 (Tex. App.—Houston [14th Dist.] Dec. 23, 2014, pet. filed)

(attached as Appendix A). This petition for discretionary review is timely if filed

on or before January 22, 2015. TEX. R. APP. P. 68.2.

v STATEMENT OF FACTS

In April 2010, Walter Gallo and Luis Ollevera wanted some marijuana; so

Gallo called Walter Martinez, one of the appellant’s close friends, in order to get

one pound of “hydro,” a higher-quality type of marijuana (RR. III – 193-195, 263-

264). Martinez apparently set up a meeting with Suu Nguyen and Aleksander

Lobos to acquire the marijuana (St. Ex. 150). Nguyen drove a Toyota Scion, and

Lobos owned an Infiniti G35 (RR. IV – 32) (St. Ex. 77).

When Martinez went to meet Nguyen and Lobos, the appellant and some

other friends accompanied him (St. Ex. 150). There were two cars parked on the

street at the meeting place: Lobos’s Infiniti and Nguyen’s Scion; both Nguyen and

Lobos were sitting in the Scion (St. Ex. 59-78, 150). The appellant was carrying a

revolver in his waistband (St. Ex. 150). At some point during the transaction, the

appellant pulled out his revolver, pushed open the Scion’s door, and shot both

Nguyen and Lobos (St. Ex. 150) (RR. V – 52) (St. Ex. 150). Lobos sustained two

fatal gunshot wounds: one to his head and the other to his chest (St. Ex. 108) (RR.

IV – 156-160). Nguyen also suffered two fatal gunshot wounds: one to the back of

his head and the other to his back (St. Ex. 109) (RR. IV – 138-147). The appellant

or his accomplices stole the marijuana and the Infiniti (RR. III – 224, 269-270)

(RR. V – 52, 55) (St. Ex. 35-38). Martinez told Gallo to be at his house at around 11:00 p.m. that evening

(RR. III – 199, 262, 264). He also told Gallo to enter the house through the back

yard (RR. III – 201-202, 265). When Gallo and Ollevera arrived, they saw about

ten guys, including the appellant, who appeared to be “hyped up,” jumpy, and

celebrating (RR. III – 204-205, 211, 219, 261, 266-267, 305).

The appellant stated that he had shot and killed two people for a bag of weed

(RR. III – 205, 214, 268) (RR. IV – 34-35). He was holding a bag of marijuana,

and he showed it to Gallo (RR. III – 211, 223, 269). Gallo stated, “Y’all murdered

these people for that, for that bag?” (RR. III – 225). But Gallo also saw the Infiniti

inside the garage and learned that the car had been taken during the murders (RR.

III – 224, 269-270) (St. Ex. 35-38). The appellant did not appear to be remorseful

over the murders (RR. III – 272).

Gallo had been inside Martinez’s house for about ten minutes when the

police arrived (RR. III – 225, 272). He was so paranoid that he jumped the fence

into the neighbor’s yard and ran away, but he was eventually caught (RR. III –

226-228). Ollevera did the same with similar results (RR. III – 273-275). The

officers entered Martinez’s house and found a large bag of marijuana on top of the

living-room sofa (RR. IV – 30). The Infiniti parked in the garage belonged to

Lobos (RR. IV – 32).

2 More than two weeks after the murders, the police tracked the appellant to

an apartment complex on South Post Oak (RR. IV – 65, 81). As the officers were

attempting to enter the apartment, a neighbor yelled that some guys were jumping

off of the second-story balcony at the back of the apartment (RR. IV – 70). The

suspects, including the appellant, started running down Post Oak, but the police

chased them to a nearby gas station where the appellant was finally detained (RR.

IV – 70-71). The appellant then gave a videotaped statement to homicide detective

Richard Bolton in which he admitted to shooting both of the victims (St. Ex. 150).

GROUNDS FOR REVIEW

A. The lower court’s majority opinion erred in holding that the appellant preserved his two-step interrogation complaint for appellate review.

B. The lower court’s majority opinion erred in holding that the appellant was subject to custodial interrogation prior to receiving and waiving his legal rights. C. The lower court’s majority opinion erred in holding that a two-step interrogation technique was deliberately employed by the police.

D. The lower court’s majority opinion erred in holding that the appellant was harmed by the admission of his statement when there was overwhelming evidence of the appellant’s guilt independent of his statement to the police.

3 ARGUMENT

This petition for discretionary review should be granted because the justices

of the court of appeals disagreed on a material question of law necessary to the

court’s decision and because the analysis used by the majority opinion has so far

departed from the accepted and usual course of judicial proceedings so as to call

for an exercise of this Court’s power of supervision. TEX. R. APP. P. 66.3.

Specifically, the majority opinion held that the two-step-interrogation issue was

preserved for appellate review when the trial court thought that the appellant was

making a different objection. Furthermore, the majority opinion failed to defer to

the explicit factual findings of the trial court where there was evidence in the

record that the appellant was not subject to custodial interrogation prior to

receiving his legal rights. The majority opinion also erred in finding deliberate

misconduct by the police when there was no support in the record for such a

conclusion. Finally, the majority opinion erred in holding that the appellant was

harmed by the admission of his statement to the police when he bragged of his

crime to numerous friends, showed the fruits of the crime, and ran from the police.

The appellant filed a written pre-trial motion to suppress his confession,

claiming that his statement was taken without a proper warning of his

constitutional and statutory rights and that he was illegally arrested (CR – 54-55).

The trial court carried the motion with the trial; when Detective Bolton was called

4 to testify, the trial court held a hearing outside the presence of the jury at which the

appellant and Bolton were the only witnesses (RR. IV – 79, 95). The trial court

apparently believed that the only purpose of the hearing was to address the

voluntariness of the appellant’s statement (RR. IV – 80-81).

Detective Bolton testified that the appellant was initially interviewed on

April 16 and that Bolton was called in to conduct the formal interview that evening

(RR. IV – 81, 85). Bolton testified that his partner, Investigator Padilla, had

interviewed the appellant prior to the formal statement and that Bolton had

monitored the interview, although there was conflicting evidence on that issue

(RR. IV – 86, 87, 89). During the following exchange with the appellant’s

counsel, Bolton testified that Padilla had given the appellant his legal warnings

prior to questioning him:

Q. So, there was a time when both individuals were telling you they were not involved and didn’t know what you were talking about.

A. The defendants?

Q. Yes.

A. Yes.

Q. That be fair to say?

A. Yes, sir.

Q. And when any other officers read them their Miranda warnings, you don’t know or if they were read at all ‘cause you weren’t there?

5 A. Yes, I was there. I was in the monitoring room. When they entered the room, you know, they read the defendant – and when they interviewed Mr. Martinez, they also read him his legal warnings as well.

(RR. IV – 87). The trial court found, based on its evaluation of the witnesses’

testimony and credibility, that “Bolton credibly testified that Padilla had given the

defendant his legal warnings prior to questioning him,” and that “any statements

indicating that Padilla had not given the defendant his legal warnings prior to

questioning him are not credible.” (CR Supp. – 23) (attached as Appendix B).

Bolton did not start talking to the appellant until 10:00 or 10:30 p.m., and

did not take the formal videotaped statement until around midnight (RR. IV – 90-

91). He stated that he gave the appellant his legal warnings, and indeed the video

begins with Bolton stating, “I’m gonna read your rights to you like I did a little

earlier.” (St. Ex. 150). He testified that the delay in taking the formal interview

was an effort to build rapport with the appellant (RR. IV – 88).

The appellant testified during the suppression hearing that the officers never

read him his legal warnings when they first started talking to him (RR. IV – 97-

98). The appellant further claimed that he repeatedly told the officers that he did

not want to talk to them (RR. IV – 99). He admitted that he knew his rights

because he had been placed in a homicide office once before (RR. IV – 99). But

6 the trial court found that the appellant’s testimony was not credible (CR Supp. –

23-24).

The appellant’s argument on appeal, and the basis for the lower court’s

reversal, was Missouri v. Seibert, 542 U.S. 600 (2004). See Vasquez, 2014 WL

7365945, *4 (citing Seibert and Carter v. State, 309 S.W.3d 31, 36–37 (Tex. Crim.

App. 2010)). But the appellant’s two pre-trial motions to suppress made no

mention of Seibert or “midstream warnings” or a “two-step interrogation.” (CR –

54, 76). See Barfield v. State, 416 S.W.3d 743, 749 (Tex. App.—Houston [14th

Dist.] 2013, no pet.) (citing Batiste v. State, AP-76,600, 2013 WL 2424134, *16

(Tex. Crim. App. June 5, 2013) cert. denied, 134 S. Ct. 1000 (U.S. 2014) (“At trial,

appellant did not make any reference to Seibert, Carter, “two-step questioning,”

“question first, warn later,” or any other argument that might raise an issue under

Seibert.”)).

It was not until closing argument at the suppression hearing, after the trial

court had already ruled on the briefed suppression issue, that the appellant first

mentioned a “two-step interview.” (RR. IV – 105). Even at that point, the

appellant made no mention of Seibert, and it was clear that the trial court did not

understand the nature of the objection. Rather, the trial court believed that it was

merely another aspect of the briefed issue.

7 The focus of the written suppression motions was the voluntariness of the

appellant’s statement and the State’s compliance with Article 38.22 of the Code of

Criminal Procedure, which governs the admission of oral statements. See TEX.

CODE CRIM. PROC. art. 38.22 §3 (West 2010). The appellant began his closing

argument at the suppression hearing by citing Nguyen v. State, 292 S.W.3d 671

(Tex. Crim. App. 2009), which deals with Article 38.22 but makes no mention of

Seibert and is not a “midstream warnings” case (RR. IV – 104-105). The trial

court overruled the appellant’s complaint, and the appellant then claimed that it

was a “two-step interview.” (RR. IV – 105-106). The trial court responded,

All right. Only the video statements are admissible. Statements that he made that were not videoed are not admissible in the State’s case in chief. But any statements that he made outside the video still could fall under, you know, 613 impeachment, in the event that he should testify. And then he could be impeached on inconsistency under 613. Otherwise, they don’t come in.

All right. So, I guess what I’m doing is I’m granting your motion in part. All right. So, any statements that he makes outside the video, outside of the Miranda warnings that were stated on the video do not come in. I’m still leaving it open in the event that it might be inconsistent. It could come in for some other purpose.

(RR. IV – 106) (emphasis added). The trial prosecutor then confirmed that he only

intended to “introduce the officer, circumstances and play the video.” (RR. IV –

107) (emphasis added).

Neither the trial court nor the trial prosecutor understood the nature of the

appellant’s new Seibert objection, which was being raised for the first time at the

8 end of the suppression hearing. The trial court thought that the appellant’s “two-

step” objection referred to the fact that some of the interview was videotaped and

some of the interview was not because Article 38.22 requires that the entire

statement be recorded. See TEX. CODE CRIM. PROC. art. 38.22 §3 (West 2010).

The trial court’s response focused on the videotape, which is crucial to an

Article 38.22 Section 3 challenge. See TEX. CODE CRIM. PROC. art. 38.22 §3 (West

2010) (“No oral or sign language statement of an accused made as a result of

custodial interrogation shall be admissible against the accused in a criminal

proceeding unless: (1) an electronic recording, which may include motion picture,

video tape, or other visual recording, is made of the statement.”). But the presence

of a videotape is irrelevant in a Seibert analysis. See Carter, 309 S.W.3d at 38

(“We therefore join numerous state and federal jurisdictions in adopting Justice

Kennedy’s concurrence in Seibert because it is narrower in scope than the plurality

opinion and applies only to two-step interrogations involving deliberate police

misconduct.”).

Furthermore, the trial court believed that it was “granting [the] motion in

part,” which makes sense in the context of Article 38.22 but makes absolutely no

sense in the context of a Seibert motion. If there were a violation of Article 38.22,

then the trial court could suppress that portion of the statement that was

involuntary or that was not recorded. See, e.g., Resendez v. State, 256 S.W.3d 315,

9 327 (Tex. App.—Houston [14th Dist.] 2007) rev’d on other grounds, 306 S.W.3d

308 (Tex. Crim. App. 2009) (“Because the interrogation of appellant was custodial

from the point after which appellant admitted he shot the complainant, the trial

court erred in denying appellant’s motion to suppress this part of appellant’s

statement based on appellant’s failure to receive the required warnings from the

law enforcement officers or waive his rights.”) (citing TEX. CRIM. PROC. CODE art.

38.22, § 3). But if there were a Seibert violation, then the entire statement should

be suppressed. Carter, 309 S.W.3d at 37 (“the interrogation technique used with

Seibert undermined the goals of Miranda and thus required suppression.”).

The appellant did nothing to correct the trial court’s mistaken impression

concerning the nature of the second objection, and the trial prosecutor did not

recognize it as a veiled Seibert issue. Fortunately, the appellant cannot profit by

his failure to clarify the issue for the trial court. See TEX. R. APP. P. 33.1(a) (“As a

prerequisite to presenting a complaint for appellate review, the record must show

that: (1) the complaint was made to the trial court by a timely request, objection, or

motion that: (A) stated the grounds for the ruling that the complaining party sought

from the trial court with sufficient specificity to make the trial court aware of the

complaint, unless the specific grounds were apparent from the context…”)

(emphasis added).

10 In Phillips v. Bramlett, 288 S.W.3d 876, 882-83 (Tex. 2009), the defense

counsel objected to closing argument as follows: “Judge, I object to any testimony

about the propriety of other trials and the verdicts reached by other juries in

Lubbock.” The trial court responded: “This is his argument, and it is not

testimony.” The defense counsel did not offer any further explanation of his

objection, and the plaintiffs’ counsel thereafter continued to argue that the jury

needed to send a message to the doctors of Lubbock without further objection. The

Texas Supreme Court cited Rule 33.1 and agreed that “the asserted error was not

preserved because the trial court’s response indicated that it did not understand the

objection, and counsel made no further attempt to clarify the court’s understanding

or obtain a ruling on his objection.” Phillips, 288 S.W.3d at 883.

In the present case, the appellant never referenced Seibert, Carter, “question

first, warn later,” or “mid-stream warnings” in either of his written motions to

suppress or at any time during the proceedings. See Batiste, 2013 WL 2424134,

*16 (“At trial, appellant did not make any reference to Seibert, Carter, “two-step

questioning,” “question first, warn later,” or any other argument that might raise an

issue under Seibert.”). He waited until after the trial court had overruled his

Article 38.22 argument to finally mention the term “two-step interview.” (RR. IV –

105). But the trial court’s response showed that it mistakenly believed that the

appellant was still objecting based on Article 38.22. Therefore, the appellant failed

11 to object with sufficient specificity to make the trial court aware of the complaint,

and his sole point of error should have been overruled. See TEX. R. APP. P. 33.1(a);

Phillips, 288 S.W.3d at 883; Vasquez, 2014 WL 7365945, *16-18 (Frost, J.,

dissenting) (“Because appellant did not timely raise the ‘question first, warn later’

complaint, he failed to preserve error in the trial court, and this court may not

reverse the trial court’s judgment based on this complaint.”).

Even if the appellant had properly preserved his appellate complaint, the

majority opinion nevertheless erred in finding a Seibert violation. As stated

previously, the trial court made the factual finding that Padilla had given the

defendant his legal warnings prior to questioning and that any statements to the

contrary were not credible. (CR. Supp. – 23). The majority opinion erred in failing

to respect the trial court’s authority to make such findings. Maxwell v. State, 73

S.W.3d 278, 281 (Tex. Crim. App. 2002) (“At a suppression hearing, the trial

judge is the sole and exclusive trier of fact and judge of the credibility of the

witnesses and their testimony.”).

The majority opinion also failed to respect the trial court’s discretion in

finding that “any delay in the administration of Miranda warnings was due to an

effort to build rapport with the defendant rather than to intentionally circumvent

the protections of Miranda.” (CR. Supp. – 25-26). The central question when

determining the admissibility of post-Miranda warning confessions made after

12 Miranda violations is whether the evidence shows that the officer deliberately

employed a two-step “question first, warn later” interrogation technique to

circumvent the suspect’s Miranda protections. Carter v. State, 309 S.W.3d 31, 36–

37 (Tex. Crim. App. 2010). Because the question of whether the interrogating

officer deliberately employed such a technique “will invariably turn on the

credibility of the officer’s testimony in light of the totality of the circumstances

surrounding the interrogation,” a factual finding regarding the officer’s credibility

is entitled to “highly deferential review.” Id., 309 S.W.3d at 40.

When a two-step questioning tactic has not been deliberately employed, “a

suspect who has once responded to unwarned yet uncoercive questioning is not

thereby disabled from waiving his rights and confessing after he has been given the

requisite Miranda warnings.” Oregon v. Elstad, 470 U.S. 298, 318 (1985). When

the first statement is unwarned but not coerced, the admissibility of any subsequent

statement turns on whether it is knowingly and voluntarily made. Id., 470 U.S. at

309; Carter, 309 S.W.3d at 32.

In the present case, the only evidence that the appellant was subject to

custodial interrogation prior to receiving his legal warnings came from the

appellant’s mouth (RR. IV – 97-98). But the trial court explicitly disbelieved the

appellant’s testimony at the suppression hearing (CR. Supp. 23-24). See Guzman,

955 S.W.2d at 89; Ervin, 333 S.W.3d at 213–14 (“Because the trial court found

13 credible the officers’ testimony that appellant was not in custody ... even if the

officers erred in their belief that she was not in custody, that error does not amount

to a deliberate tactic to circumvent Miranda.”).

The majority opinion concluded, contrary to the trial court’s findings, that

the fact that the appellant was in custody and gave both statements to officers at a

police station “indicates that the absence of Miranda warnings before the

beginning of the interrogation process was not a mistake but rather a conscious

choice.” Vasquez, 2014 WL 7365945, at *11. But as this Court has related, “the

trial judge’s assessment of the interrogating officer’s subjective intent is especially

important under Justice Kennedy’s approach in Seibert…We therefore adopt the

position of those federal and state courts that have applied a highly deferential

review—similar to our Guzman standard—of the question of an officer’s

subjective ‘deliberateness’ in the ‘question first, warn later’ context.” Carter, 309

S.W.3d at 40.

In Seibert, the interrogating officer testified at the suppression hearing that

he made a “conscious decision” to withhold Miranda warnings, thus resorting to an

interrogation technique he had been taught: question first, then give the warnings,

and then repeat the question “until I get the answer that she’s already provided

once.” Seibert, 542 U.S. at 605-06. That was sufficient to show a deliberate intent

to circumvent the protections of Miranda. Id.

14 In the present case, Detective Bolton testified that the delay in taking the

appellant’s formal interview was an effort to build rapport with the appellant (RR.

IV – 88). He stated that, ““sometimes it’s like hours, you know, just to get – to

build rapport with the individual. You know, we talk to them about a number of

things, about family.” (RR. IV – 88). Furthermore, the trial court explicitly found

that “any delay in the administration of Miranda warnings was due to an effort to

build rapport with the defendant rather than to intentionally circumvent the

protections of Miranda.” (CR. Supp. – 25-26). Therefore, any delay in

administering legal warnings to the appellant in the present case was due to

permissible rapport-building rather than to the impermissible activity of Seibert.

See, e.g., People v. Delatorre, B230591, 2012 WL 909659, *5 (Cal. Ct. App. Mar.

19, 2012) (finding no Seibert violation where officer testified that the

“conversation began, we began talking, a rapport was built, and it wasn’t until

some facts started to come out that I realized I had forgotten to Miranda.”); State v.

Hughes, 272 S.W.3d 246, 255 (Mo. Ct. App. 2008) (finding no Seibert violation

where officers’ pre-waiver questioning was to build a rapport). The trial court’s

ruling should have been upheld.

Finally, even if the majority opinion below were correct on the Seibert

violation, it nevertheless erred in determining that the appellant was harmed by the

admission of his statement. The evidence supporting the appellant’s guilt,

15 independent of his recorded statement, was overwhelming. Both Gallo and

Ollevera testified that the appellant was at Martinez’s house shortly after the

murder, and the appellant was bragging about having shot and killed two people

for a bag of weed (RR. III – 204-205, 211, 214, 219, 261, 266-268, 305) (RR. IV –

34-35). The appellant was holding a bag of marijuana; he showed it to Gallo and

did not appear to be remorseful over the murders (RR. III – 211, 223, 269, 272).

Furthermore, the appellant fled from the police who were investigating these

murders (RR. IV – 70-71). Finally, even the appellant’s own witness admitted that

the appellant had taken the marijuana from Nguyen and Lobos (RR. V – 49-50).

Thus, it is unlikely that the admission of the appellant’s videotaped statement had

more than a slight effect on the jury’s verdict, and the majority opinion below erred

in holding otherwise.

16 PRAYER FOR RELIEF

It is respectfully requested that this petition should be granted and that the

majority opinion of the court of appeals should be reversed.

/s/ Eric Kugler ERIC KUGLER Assistant District Attorney Harris County, Texas 1201 Franklin, Suite 600 Houston, Texas 77002 (713) 755-5826 kugler_eric@dao.hctx.net TBC No. 796910

17 CERTIFICATE OF SERVICE AND COMPLIANCE

This is to certify that: (a) the word count function of the computer program used to prepare this document reports that there are 3,765 words in the relevant sections; and (b) a copy of the foregoing instrument will be served by efile.txcourts.gov to:

Mark Kratovil Lisa McMinn Assistant Public Defender State Prosecuting Attorney Harris County, Texas P.O. Box 13046 1201 Franklin, 13th Floor Austin, Texas 78711 Houston, Texas 77002

/s/ Eric Kugler ERIC KUGLER Assistant District Attorney Harris County, Texas 1201 Franklin, Suite 600 Houston, Texas 77002 (713) 755-5826 TBC No. 796910

Date: January 22, 2015

18 19 Appendix A

Vasquez v. State, 14-12-00096-CR, 2014 WL 7365945 (Tex. App.—Houston [14th Dist.] Dec. 23, 2014, pet. filed)) Officers chased, apprehended, and handcuffed appellant 2014 WL 7365945 Only the Westlaw citation is currently available. at a gas station, placed him in a squad car, and transported him to the police station for questioning. Another suspect NOTICE: THIS OPINION HAS NOT BEEN named Martinez had been with appellant and was arrested RELEASED FOR PUBLICATION IN THE at the same time. Officers placed appellant in an interview PERMANENT LAW REPORTS. UNTIL RELEASED, room, where he remained for nearly eight hours while IT IS SUBJECT TO REVISION OR WITHDRAWAL. being interrogated by three or four investigating officers, MAJORITY OPINION including Officers Padilla and Evans. The officer who last Court of Appeals of Texas, questioned appellant, Officer Bolton, ultimately obtained Houston (14th Dist. a confession that was not captured on videotape. Soon thereafter, Bolton asked permission to videotape Jose Vasquez, Appellant appellant’s confession. Appellant complied with the v. request and repeated his confession.2 The State of Texas, Appellee NO. 14–12–00096–CR | Opinions filed December Appellant filed a written pretrial motion to suppress his 23, 2014 confession on grounds that he was not given Miranda3 warnings and he did not validly waive his rights before he On Appeal from the 228th District Court, Harris confessed. Appellant subsequently filed another pretrial County, Texas, Trial Court Cause No. 1333231 motion to suppress his oral statements on the sole ground that using the oral statements at trial would be prohibited Attorneys and Law Firms by Texas Code of Criminal Procedure article 38.22, Eric Kugler, for State Bar of Texas. section 3.4 The trial court carried the motions with trial and held a hearing outside the presence of the jury to Mark Kratovil, for Jose Vasquez. determine the admissibility of the statements. Panel consists of Chief Justice Frost and Justices *2 At the hearing, only Bolton testified. He testified as Christopher and Jamison. follows:

[Defense counsel:] And when you got involved ... Padilla ... and Evans had been going back and forth interviewing ... Martinez and [appellant], correct? MAJORITY OPINION [Bolton:] I believe they were interviewing the two Martha Hill Jamison, Justice defendants in the case. And also I think there was a *1 Appellant Jose Vasquez appeals his conviction for witness that they interviewed. capital murder. After the jury found him guilty, the trial court assessed punishment at life in prison. On appeal, we [Defense counsel:] ... And you were in ... a room held the trial court erred in admitting appellant’s where you could look inside while they were talking videotaped confession and such error was harmful, to [appellant]. reversed appellant’s conviction, and remanded the case to [Bolton:] Yes, sir. the trial court. The Court of Criminal Appeals granted the State’s petition for review, vacated our judgment, and [Defense counsel:] And you could hear what Evans remanded the case to our court with instructions to and Padilla [were] telling them.... You could ... see remand the case to the trial court for findings of fact and them and hear ... ? conclusions of law.1 The trial court rendered findings of fact. Appellant reasserts his complaint that the trial court [Bolton:] Both erred in denying appellant’s motion to suppress the videotaped confession he made to an investigating officer [Defense counsel:] And when any other officers read during custodial interrogation. Appellant argues that his them their Miranda warnings, you don’t know or if statement was obtained by an impermissible two-step they were read at all ‘cause you weren’t there? interrogation technique. We again reverse the trial court’s judgment and remand for a new trial. [Bolton:] Yes, I was there. I was in the monitoring room. When [Evans and Padilla] entered the room, you know, they read [appellant]—and when they interviewed ... Martinez, they also read him his legal warnings as well. Background On April 16, 2010, appellant was arrested pursuant to a [Defense counsel:] ... [W]here was [appellant] warrant and charged with two counts of capital murder. located when you saw Evans and Padilla talking to

2 him? (Emphasis added). Bolton did not clarify what he meant by “at the end.” [Bolton:] ... I was not present when ... Padilla talked to [appellant]. I was in an interview room talking to At the beginning of the videotape recording, Bolton ... Martinez. I was conducting an interview there stated, “I’m going to read your rights to you like I did a while ... Padilla was speaking to [appellant]. So, I little earlier,” but he did not indicate on the videotape or was not present when he spoke to him, you know.... in his testimony whether the “earlier” reading of his rights occurred before or after the previous confession had been [Defense counsel:] ... [Y]ou stayed in the little made. Bolton further testified that appellant never anteroom listening to somebody talking to invoked his rights to remain silent or have counsel [appellant] for a while. How long did you stay in present. there and listen to that? *3 Appellant testified he invoked his right to remain silent [Bolton:] ... I didn’t watch that interview. While ... before custodial interrogation began and no officer gave Padilla or ... Evans, either one, was interviewing him Miranda warnings until after he confessed off- [appellant] ... I was interviewing ... Martinez. camera. The trial court suppressed the statements that were not captured on videotape but admitted the [Defense counsel:] Okay. So what ... they said and videotaped confession. what they did, you don’t know other than what they told you he was saying. On appeal, we concluded that the State did not meet its [Bolton:] Yes, sir.... burden to present evidence that (1) officers read appellant his Miranda rights before appellant made off-camera [Defense counsel:] And then eventually you decided incriminating statements; and (2) officers did not employ to go talk to [appellant]. a two-step interrogation technique in a deliberate, calculated way to undermine Miranda warnings or take [Bolton:] After [I] interview[ed] Martinez, ... Padilla curative measures to ensure appellant would understand had already concluded whatever interview he had the import and effect of the Miranda warning and waiver. with [appellant].... And [Padilla] asked me ... to talk Vasquez v. State, 397 S.W.3d 850, 854–58 (Tex.App.— to [appellant]. So, at that time I went to the interview Houston [14th Dist.] 2013), vacated, 411 S.W.3d 918 room and ... began the interview with [appellant]. (Tex.Crim.App.2013). We held that the trial court erred in admitting appellant’s videotaped statement and such error Bolton testified that he gave appellant Miranda warnings, was harmful. Id. at 858–59. We reversed the trial court’s as reflected on the videotape, but did not testify that he judgment and remanded the case for a new trial. Id. at had previously done so before appellant confessed off- 859. camera: The Court of Criminal Appeals ordered the trial court to [Prosecutor:] ... Did you advise him of his legal determine on remand: (1) whether the original, rights and warnings? unrecorded interview was custodial in nature; (2) whether appellant was Mirandized prior to his original [Bolton:] Yes, sir, I did. interrogation; (3) if not, whether the police deliberately employed a two-step interrogation process; and (4) if they [Prosecutor:] Did he appear—did you go through did, whether any curative measures were taken before the each individual legal right and warning with him? second confession. Vasquez, 411 S.W.3d at 920. The trial court made the following findings of fact, in relevant part, [Bolton:] Yes, sir, I did. expressly “based upon the reporter’s record in this case and based upon th[e] Court’s evaluation of the witnesses’ [Prosecutor:] Did he appear to understand each testimony and credibility”5: individual legal right and warning? • Detective Bolton credibly stated that he gave the [Bolton:] Yes, he did. defendant his legal warnings, and that the defendant [Prosecutor:] Did he waive each individual legal waived his rights prior to giving the statements, all of right and warning that you gave him? which is reflected on the video.

[Bolton:] Yes, sir, at the end. • Bolton credibly testified that his partner, Investigator Padilla, had interviewed the defendant [Prosecutor:] ... And did he agree to speak with you prior to the formal statement and that Bolton had having waived those rights? monitored the interview.

[Bolton:] Yes, sir, he did. • Bolton credibly testified that Padilla had given the

3 defendant his legal warnings prior to questioning officers interrogating a suspect and obtaining a confession him. without first providing Miranda warnings; then, after the inculpatory statements are made, officers provide • [A]ny statements indicating that Padilla had not Miranda warnings and obtain a waiver of the warnings. given the defendant his legal warnings prior to See Seibert, 542 U.S. at 604–05, 124 S.Ct. 2601. Officers questioning him are not credible. then have the suspect repeat the inculpatory statements in an attempt to cure the lack of Miranda warnings.6 See id. • [T]he defendant was not credible when he testified at 605, 124 S.Ct. 2601. during the suppression hearing that the officers never read him his legal warnings when they first started In reviewing a trial court’s ruling on a motion to suppress, talking to him. appellate courts must view all of the evidence in the light most favorable to the ruling. State v. Garcia–Cantu, 253 • [T]he defendant was not credible when he claimed S.W.3d 236, 241 (Tex.Crim.App.2008). At a suppression that he repeatedly told the officers that he did not hearing, the trial judge is the sole factfinder. St. George v. want to talk to them. State, 237 S.W.3d 720, 725 (Tex.Crim.App.2007). We give almost total deference to a trial court’s express • Bolton credibly testified that the delay in taking a determination of historical facts when supported by the formal interview of the defendant was due to an record. State v. Dixon, 206 S.W.3d 587, 590 effort to build rapport with the defendant. (Tex.Crim.App.2006); State v. Ross, 32 S.W.3d 853, 855– • [T]he defendant’s original, unrecorded interview 56 (Tex.Crim.App.2000). The same deference is accorded was custodial in nature. to determinations of mixed questions of law and fact if their resolution depends upon witness credibility and • [T]he defendant was Mirandized prior to his demeanor. Ross, 32 S.W.3d at 856. original interrogation. • [E]ven if the defendant had not been Mirandized Issues that present purely legal questions are considered prior to his original interrogation, there was no under a de novo standard. Dixon, 206 S.W.3d at 590; evidence that the police deliberately employed a Ross, 32 S.W.3d at 856. We will sustain the trial court’s two-step interrogation process in order to circumvent ruling if it is reasonably supported by the record and is the protections of Miranda and [there was evidence] correct on any theory of law applicable to the case. that the police did not deliberately employ such a Villarreal v. State, 935 S.W.2d 134, 138 two-step interrogation process. Rather, any delay in (Tex.Crim.App.1996). In this connection, when the trial the administration of Miranda warnings was due to court files findings of fact with its ruling on a motion to an effort to build rapport with the defendant rather suppress, we do not engage in our own factual review, but than to intentionally circumvent the protections of determine only whether the record supports the trial Miranda. court’s fact findings. Paolilla v. State, 342 S.W.3d 783, 792 (Tex.App.—Houston [14th Dist.] 2011, pet. ref’d). *4 • [C]urative measures were taken before the second confession by the following procedures: (1) Under Miranda and article 38.22 of the Code of Criminal there was minimal reference to the original Procedure, an oral statement of an accused made as a interrogation in the defendant’s recorded statement, result of custodial interrogation is not admissible at trial (2) different officers conducted the two interviews, unless the accused was warned of his rights and (3) a substantial amount of time elapsed between the knowingly, intelligently, and voluntarily waived those original interrogation at 5:15 p.m. and the formal rights. Miranda v. Arizona, 384 U.S. 436, 478–79, 86 recorded statement after midnight, and (4) Miranda S.Ct. 1602, 16 L.Ed.2d 694 (1966); Tex. Code Crim. warnings were again given and waived prior to the Proc. art. 38.22 § 3. If the record shows the warnings second statement, which was recorded. were received and understood by the accused and he did not invoke his rights, the accused waives the right to remain silent by making an uncoerced statement to the police. Umana v. State, 447 S.W.3d 346, ––––, 2014 WL 4199116, at *7 (Tex.App.—Houston [14th Dist.] Aug. 26, Discussion 2014, pet. filed). We review the totality of the In his sole issue, appellant argues the trial court circumstances as reflected in the record to determine erroneously admitted the videotaped confession because it whether the trial court’s finding or conclusion that an was obtained by an improper two-step “question first, accused voluntarily waived his rights finds support in the warn later” interrogation technique. See Missouri v. record. Id. at –––– – ––––, at *8–9. Seibert, 542 U.S. 600, 622, 124 S.Ct. 2601, 159 L.Ed.2d 643 (2003) (Kennedy, J., concurring); Carter v. State, 309 *5 In the plurality opinion Missouri v. Seibert, four S.W.3d 31, 35–36 (Tex.Crim.App.2010). A “question justices of the Supreme Court concluded that a “question first, warn later” interrogation technique consists of first, warn later” interrogation technique circumvented the

4 objective of Miranda by rendering any warnings given a statement. ineffective. Seibert, 542 U.S. at 611–13, 124 S.Ct. 2601; see also Martinez v. State, 272 S.W.3d 615, 619–20 In his second motion to suppress, appellant contended that (Tex.Crim.App.2008). The Seibert plurality found that the he “may have made oral statements after his arrest and the purpose of this interrogation technique was to obtain a use of [such statements] is prohibited by the Texas Code confession the suspect may not have made if he had of Criminal Procedure, Article 38.22, Section 3.” Under understood his rights at the outset. Seibert, 542 U.S. at article 38.22, unrecorded statements of an accused 611, 124 S.Ct. 2601. In his concurring opinion in Seibert, obtained through custodial interrogation are not Justice Kennedy determined that when a two-step admissible in a criminal proceeding. Tex.Code Crim. interrogation technique is used in a deliberate, calculated Proc. art. 38.22 § 3. Recorded statements are admissible way to undermine Miranda warnings, absent “curative only if the voices on the recording are identified. Id. art. measures,” the post-warning statements must be excluded. 38.22 § 3(a)(4). Seibert, 542 U.S. at 622, 124 S.Ct. 2601 (Kennedy, J., concurring). In Carter, the Court of Criminal Appeals We agree that the focus of the second motion to suppress expressly adopted Justice Kennedy’s concurrence in was on the admissibility of appellant’s unrecorded Seibert. Carter, 309 S.W.3d at 38. statements under article 38.22. However, the first motion was focused on the voluntariness of appellant’s statement, purportedly taken after officers did not give appellant Miranda warnings, “persistently and coercively I. Issue Preserved for Appellate Review interviewed him[,] wore down his resistance[,] and The State filed a supplemental brief, arguing for the first force[d] him to make a statement.”7 time on remand that appellant did not preserve error on his appellate issue because neither of his two pretrial *6 At the suppression hearing, Bolton testified he motions to suppress mentioned “Seibert or ‘midstream Mirandized appellant “at the end” before recording his warnings’ or a ‘two-step interrogation’ ” and appellant’s statement. Thus, the issue regarding voluntariness of counsel did not mention a “two-step interview” until appellant’s confession in the context of midstream closing argument at the suppression hearing. The State warnings was before the trial court. Also at the close of contends that the focus of the suppression motions was the hearing, appellant’s counsel asserted the recorded the “voluntariness of the appellant’s statement and the statement was inadmissible under article 38.22, section 3 State’s compliance with Article 38.22 of the Code of because the voices on the recording were not identified, Criminal Procedure, which governs the admission of oral but he then presented a second argument: statements.” And my next approach ... is I’m To preserve an issue for appellate review, a defendant contending this is a two-step must first raise that issue in the trial court. Tex. R. App. P. interview.... And once they got him 33.1(a). Eschewing hyper-technical requirements for to say what they wanted him to say, preservation, the Court of Criminal Appeals stated, “[A]ll they took him in and videoed him a party has to do to avoid the forfeiture of a complaint on and gave his Miranda warning and appeal is to let the trial judge know what he wants, why he told the story again. And I’m he thinks himself entitled to it, and to do so clearly suggesting under the existing case enough for the judge to understand him at a time when the law, that’s illegal and the statement trial court is in a proper position to do something about should be suppressed. it.” Lankston v. State, 827 S.W.2d 907, 909 (Tex.Crim.App.1992); see also Bedolla v. State, 442 The trial court suppressed the unrecorded statements but S.W.3d 313, 316 (Tex.Crim.App.2014). not the video statement. In his first motion to suppress, appellant asserted that his: Terms such as “two-step questioning,” “two-step interrogation technique,” and “two-step question first, confession was involuntary and warn later” all refer to the practice of obtaining a was coerced and enticed from confession and then giving Miranda warnings midstream [appellant]. [Appellant] was during an interview of a suspect. See, e.g., Carter, 309 arrested around 11 a.m. and he S.W.3d at 37 (referencing “two-step interrogation didn’t give a video statement until technique,” “two-step strategy,” and “two-step, ‘question almost twelve hours later. He was first, warn later’ strategy” as potential violations of a not given his Miranda warnings suspect’s Miranda protections). As set forth above, this and had requested an attorney. The interrogation technique is improper when employed in a officers persistently and coercively deliberate, calculated way to undermine Miranda interviewed him and wore down his warnings, absent curative measures. Id. at 37–38. We resistance and force[d] him to make conclude appellant’s references to “two-step interview” 5 and officers’ Mirandizing appellant only after “they got given the defendant his legal warnings prior to him to say what they wanted him to say” sufficiently questioning him are not credible. apprised the trial court of appellant’s objection that police violated his Miranda protections by employing an • [T]he defendant was not credible when he testified improper two-step interrogation technique.8 during the suppression hearing that the officers never read him his legal warnings when they first started Moreover, the trial court’s findings are directed toward talking to him. the issues relevant to a Seibert challenge. The trial court found appellant was Mirandized before his original • [T]he defendant was Mirandized prior to his interrogation, there was no evidence the police original interrogation. deliberately employed a two-step interrogation process in order to circumvent the protections of Miranda, and We shall analyze these findings to determine whether they curative measures were taken by the officers.9 See Carter, are supported by the record. 309 S.W.3d at 37–38. Warnings by Bolton. Bolton did not testify that he We conclude appellant’s objection was clear enough for Mirandized appellant before appellant made off-camera the trial court to understand the Seibert objection because incriminating statements. On the video, Bolton stated, appellant raised the issue of voluntariness in his first “I’m going to read your rights to you like I did a little suppression motion and objected at the hearing to the earlier.” However, he did not testify or otherwise indicate officers’ purported “two-step interview” and the trial on the video that he had done so before appellant court’s findings were directed toward the Seibert confessed off-camera. In fact, he testified that appellant challenge. Accordingly, appellant preserved the issue for waived his Miranda rights “at the end,” but he did not our review. explain what he meant by that phrase. We conclude the trial court’s finding that “Bolton credibly stated that he gave the defendant his legal warnings” is supported by the record. But the finding that “Bolton credibly stated that ... II. No evidence that officers read appellant his the defendant waived his rights prior to giving the Miranda warnings before appellant made off-camera statements, all of which is reflected on the video” is not incriminating statements supported by the record (emphasis added). The State, as the proponent of the evidence of appellant’s confession, bears the burden of establishing its Evans’ and Padilla’s Interview of Appellant. Bolton admissibility. See Martinez, 272 S.W.3d at 623 (citing testified that he did not monitor Evans’ or Padilla’s Tex. R. Evid. 104(a), De la Paz v. State, 273 S.W.3d 671, interview of appellant. As set forth above, the following 680 (Tex.Crim.App.2008), and Cofield v. State, 891 exchange occurred upon defense counsel’s cross- S.W.2d 952, 954 (Tex.Crim.App.1994)). It is also the examination of Bolton: State’s burden to establish a valid waiver of Miranda rights by a preponderance of the evidence. See id. at 619 [Defense counsel:] ... [W]here was [appellant] n. 10; see also Seibert, 542 U.S. at 608 n. 1, 124 S.Ct. located when you saw Evans and Padilla talking to 2601 (“The prosecution bears the burden of proving, at him? least by a preponderance of the evidence, the Miranda [Bolton:] ... I was not present when ... Padilla talked waiver.”). to [appellant]. I was in an interview room talking to ... Martinez. I was conducting an interview there *7 The trial court made the following findings relevant to while ... Padilla was speaking to [appellant]. So, I this issue: was not present when he spoke to him, you know.... • Detective Bolton credibly stated that he gave the [Defense counsel:] ... [Y]ou stayed in the little defendant his legal warnings, and that the defendant anteroom listening to somebody talking to waived his rights prior to giving the statements, all of [appellant] for a while. How long did you stay in which is reflected on the video. there and listen to that? • Bolton credibly testified that his partner, [Bolton:] ... I didn’t watch that interview. While ... Investigator Padilla, had interviewed the defendant Padilla or ... Evans, either one, was interviewing prior to the formal statement and that Bolton had [appellant] ... I was interviewing ... Martinez. monitored the interview. [Defense counsel:] Okay. So what ... they said and • Bolton credibly testified that Padilla had given the what they did, you don’t know other than what they defendant his legal warnings prior to questioning told you he was saying. him. [Bolton:] Yes, sir.... • [A]ny statements indicating that Padilla had not 6 Accordingly, the trial court’s finding that “Bolton that the officers never read him his legal warnings when credibly testified that ... Padilla ... had interviewed the they first started talking to him,” the trial court was defendant prior to the formal statement and that Bolton allowed to disbelieve appellant’s testimony on these had monitored the interview” is not supported by the points. See Amador, 275 S.W.3d at 878. However, the record. State was still required to meet its burden to show appellant received Miranda warnings before making the *8 Bolton had testified, however, as follows: “I was in the off-camera incriminating statements, which it failed to do. monitoring room. When [Evans and Padilla] entered the See Martinez, 272 S.W.3d at 619 n. 10. room, you know, they read [appellant]—and when they interviewed ... Martinez, they also read him his legal We conclude the trial court’s finding that appellant warnings.” This testimony is unclear and inconsistent received his Miranda warnings before making with Bolton’s later testimony clarifying that he did not incriminating statements is not supported by the record. monitor appellant’s interview. To the contrary, the State failed to present evidence that appellant received such warnings. Therefore, we must The trial court is the sole factfinder at a suppression address whether the State established that it did not hearing and may believe or disbelieve some or all of a employ a two-step interrogation technique in a deliberate witness’s testimony. Amador v. State, 275 S.W.3d 872, way to undermine appellant’s Miranda protections. 878 (Tex.Crim.App.2009). However, the trial court’s account of the evidence must be plausible in light of the record viewed in its entirety and must be reasonably supported by the evidence. See id. at 878–80 (concluding, III. No evidence that the two-step interrogation after considering facts “taken as a whole” and reasonable technique was not deliberately employed inferences therefrom that the State carried its burden to *9 Courts should determine “whether the evidence shows show warrantless arrest was supported by probable that [the interrogating officer] deliberately employed a cause); see also Miller v. State, 393 S.W.3d 255, 263 two-step ‘question-first, warn later’ interrogation (Tex.Crim.App.2012) (“[A]ny trial-court findings technique to circumvent [the] appellant’s Miranda inconsistent with ... conclusive evidence may be protections.” Carter, 309 S.W.3d at 38; Ervin v. State, disregarded as unsupported by the record, even when that 333 S.W.3d 187, 213 (Tex.App.—Houston [1st Dist.] record is viewed in a light most favorable to the trial 2010, pet. ref d). Because the “question of whether the court’s ruling.”); Carmouche v. State, 10 S.W.3d 323, interrogating officer deliberately withheld Miranda 332–33 (Tex.Crim.App.2000) (concluding trial court’s warnings will invariably turn on the credibility of the finding that defendant voluntarily consented to search was officer’s testimony in light of the totality of the not supported by record when “indisputable” video circumstances surrounding the interrogation,” a factual evidence contradicted essential portions of ranger’s finding regarding the officer’s credibility is entitled to testimony). deference on appeal and is reviewed only for clear error.11 Carter, 309 S.W.3d at 39; Ervin, 333 S.W.3d at 213. Although Bolton initially stated that Evans and Padilla Mirandized appellant, Bolton clarified he was not present The following findings by the trial court are relevant to when Evans and Padilla interviewed appellant. Bolton this issue: further testified he was not present when appellant was arrested at 2:00 p.m. Bolton had been asked to assist in • [T]he defendant was not credible when he claimed the interrogation around 5:15 p.m. and could “really just that he repeatedly told the officers that he did not testify to anything that happened after 5:15.” Bolton want to talk to them. testified he interviewed another suspect and did not begin interviewing appellant until 10:00 or 10:30 p.m. Thus, he • Bolton credibly testified that the delay in taking a was not aware of what transpired with appellant from formal interview of the defendant was due to an 2:00 p.m. until he started his interview at 10:00 or 10:30 effort to build rapport with the defendant. p.m. Reviewing the entirety of Bolton’s testimony, we • [E]ven if the defendant had not been Mirandized conclude the trial court’s findings that “Bolton credibly prior to his original interrogation, there was no testified that Padilla had given the defendant his legal evidence that the police deliberately employed a warnings prior to questioning him” and appellant “was two-step interrogation process in order to circumvent Mirandized prior to his original interrogation” are not the protections of Miranda and [there was evidence] plausible or reasonably supported by the evidence. that the police did not deliberately employ such a two-step interrogation process. Rather, any delay in Appellant’s Testimony. With regard to the other two the administration of Miranda warnings was due to findings, that “any statements indicating that Padilla had an effort to build rapport with the defendant than to not given the defendant his legal warnings prior to intentionally circumvent the protections of Miranda. questioning him are not credible”10 and appellant “was not We may set aside these findings only if they are clearly credible when he testified during the suppression hearing erroneous. See Carter, 309 S.W.3d at 39–41; McCulley v. 7 State, 352 S.W.3d 107, 118 (Tex.App.—Fort Worth 2011, interrogating officers’ mistaken pet. ref’d). belief that [the defendant] was not in custody, but rather a conscious In Martinez, the Court of Criminal Appeals held that the choice. State has the burden of proving that a two-step interrogation technique was not deliberately employed in Id. at 624. light of the State’s burden to show a confession is admissible. 272 S.W.3d at 623–24. No other Texas cases In his concurrence, Judge Price stated, “I do not know have addressed this issue directly.12 In Martinez, police whether [the State’s] burden should extend to disproving officers questioned the defendant about a robbery and circumstances that precede the Miranda warnings that murder before the defendant was given Miranda might suffice, in contemplation of Seibert, to call the warnings. Id. at 618. Thereafter, a polygraph test was efficacy of those warnings into doubt.” Id. at 628 (Price, administered to the defendant, which took three to four J., concurring). But he noted without regard to which hours. Id. The questions asked during the polygraph test party carried the burden, the defendant “prove[d] were not in the record. Id. After the polygraph test, an circumstances that would impugn the efficacy of officer informed the defendant that he had failed the test. otherwise valid Miranda warnings.” Id. Despite these Id. Appellant was then taken to municipal court, where a statements and other statements that appear to conflict magistrate read him his Miranda warnings. Id. Upon his with the analysis in the opinion authored by Judge return to the police station, an officer again read appellant Johnson, Judge Price joined Judge Johnson’s opinion, his Miranda warnings, and appellant was again making it a five-judge majority opinion of the court. See questioned about the robbery and murder. Id. Appellant id. at 617 (noting that Judge Price joins Judge Johnson’s then gave incriminating statements on videotape. Id. The opinion); Id. at 630 (Price, J., concurring) (stating that State argued appellant had the burden of producing an Judge Price joins Judge Johnson’s opinion). adequate record regarding what questions were asked during the polygraph test and any unwarned Justice Hervey dissented, and three justices joined her conversations. Id. at 623. dissent. She stated she would require the defendant to present a sufficient record showing a police officer *10 The Court of Criminal Appeals noted, deliberately employed the two-step questioning tactic. Id. at 631 (Hervey, J., dissenting). She cited cases that stand When the officers initially for the proposition that it is the defendant’s burden to questioned [the defendant] at the prove his statements were the result of custodial police station without giving him interrogation and then the burden shifts to the State to Miranda warnings, they violated defeat the defendant’s claim. Id. at 643. Here, it is [the defendant’s] constitutional undisputed that appellant was in custody when he made rights. At the suppression hearing, his statements. He had been arrested pursuant to a valid the state failed to provide the arrest warrant. polygrapher’s name, the questions used during the polygraph As in Martinez, the record in this case also is examination, or the content of the incomplete.13 Neither Evans nor Padilla testified. There is initial interrogation of [the no evidence of what transpired before Bolton began his defendant], all of which are under interrogation at 10 or 10:30 p.m. Appellant confessed, and the exclusive control of the state. the officer “came out of the video room ... and told [the other officers] that [appellant] had confessed” and “we Id. at 623–24. need to get it on video.” A few minutes later, at “about midnight,” Bolton reentered the interrogation room, In holding that appellant’s videotaped statement was started the recording, and read appellant his Miranda inadmissible, the court further noted, warnings. Although Bolton stated on the video that he read appellant his Miranda warnings “a little earlier,” no Here, [the defendant] was in evidence shows when this occurred and thus whether it custody for the purposes of occurred before appellant made any incriminating Miranda; he gave both statements statements off-camera. On the video, appellant repeats to law-enforcement officials after earlier unrecorded statements, which are not in the record, his formal arrest pursuant to an but Bolton refers to them numerous times during the arrest warrant, and both statements video recording.14 were given at a police station. This indicates that the absence of *11 The State presented no evidence that the two-step Miranda warnings at the beginning interrogation was not deliberately employed to undermine of the interrogation process was not the Miranda warnings. The trial court’s finding that a mistake based on the “there was no evidence that the police deliberately

8 employed a two-step interrogation process in order to prewaiver statements. Id. at *4. Thus, the Delatorre court circumvent the protections of Miranda” is not relevant did not need to address whether the police officer’s delay because it shifts the burden to the appellant to prove the in administering the Miranda warnings was deliberate. As two-step interrogation was deliberately employed, when set forth above, appellant did not waive that issue in this the State was required to show that it was not. See id. at case. 623–24. *12 The second case also is distinguishable. The court Although appellant presented some evidence that the held that officers’ prewaiver “initial background interrogation technique was deliberately employed to interview” of a suspect for 20 minutes was not a undermine the Miranda warnings, the trial court was deliberate attempt to undermine Miranda. State v. entitled to discredit appellant’s testimony. See Amador, Hughes, 272 S.W.3d 246, 248, 254 (Mo.Ct.App.2008). 275 S.W.3d at 878. However, the State had the burden to During that 20–minute conversation, officers asked the present evidence that its interrogation technique was not suspect various questions about his background, deliberately employed to undermine the Miranda relationships with family members, and why he had come warnings. See Martinez, 272 S.W.3d at 623–24. As in to the city where the crime was committed. Id. at 248. Martinez, appellant was in custody for Miranda purposes Importantly, before appellant confessed, officers read his when he was being interrogated. He gave both statements Miranda rights to him and he signed a Miranda waiver to law-enforcement officers after he had been arrested form. Id. The officer who testified at trial identified two pursuant to a valid arrest warrant. Both statements were reasons beyond collection of background information given at a police station. As set forth above, the State did justifying the prewaiver discussion: “(1) to determine not show that officers read appellant his Miranda whether the subject is under the influence of drugs or warnings before the first confession was obtained. This alcohol to an extent that would prevent the subject from indicates that the absence of Miranda warnings before the meaningfully participating in an interrogation; and (2) to beginning of the interrogation process was not a mistake assess the subject’s level of intellectual functioning, but rather a conscious choice. Id. at 624. facility with the English language, and ability to read.” Id. at 254. The trial court found, however, that “the police did not deliberately employ [an illegal] two-step interrogation In concluding that “the officers had no intent to violate process. Rather, any delay in the administration of Miranda by conducting their interrogation in the manner Miranda warnings was due to an effort to build rapport they chose,” the court noted: with the defendant rather than to intentionally circumvent the protections of Miranda.” The record indicates, to the We are not blind to the fact that an contrary, that Bolton testified he did not record the entire evident purpose of the officers’ interview of appellant because he wanted “to build prewaiver questioning of [the rapport.” He did not testify that he or the other officers suspect] (beyond acquiring delayed administering Miranda warnings to build background information, and rapport.15 gauging his intellectual capacity, literacy, and lucidity) was to build The State cites two cases from jurisdictions outside of a rapport to facilitate [the] further Texas in support of its argument that a delay in interrogation. The officers did so administering Miranda warnings to build rapport is not a by engaging [the suspect] in a deliberate attempt to circumvent Miranda protections. discussion of various non- The first case, an unpublished opinion, is distinguishable threatening subjects.... However, because the officer there testified that during the course of nothing in that pre-waiver the conversation he realized he had forgotten to Mirandize discussion undermined, the suspect: “The conversation began ... a rapport was misrepresented, or otherwise built, and it wasn’t until some facts started to come out rendered ineffective the Miranda that I realized I had forgotten to Miranda. That’s why I warning [the suspect] was stopped the interview then, made the Miranda ultimately given, or the waiver he advisement, and made sure he waived before we ultimately executed (nor did the continued.” People v. Delatorre, No. B230591, 2012 WL officers intend to achieve this 909659, at *2 (Cal.Ct.App. Mar. 19, 2012). Forgetfulness effect, according to the trial court’s is not deliberateness. See Carter, 309 S.W.3d at 39 findings). (articulating standard as “whether interrogating officer deliberately withheld Miranda warnings”). Moreover, the Id. at 255. The clear implication from this statement is court of appeals in Delatorre held that the defendant had that while a prewaiver attempt to build rapport by waived his complaint that “his admissions had been discussing subjects unrelated to the crime is permissible, tainted by the delayed Miranda warning” because at trial, taking steps during a prewaiver discussion to “undermine the defendant only asked the trial court to exclude his [ ], misrepresent[ ], or otherwise render[ ] ineffective the

9 Miranda warning” would be a violation of Seibert. See id. refer to the pre-Miranda statement, the interrogating officer stating that the defendant is not obligated to In this case, unlike the facts in Hughes, appellant was in discuss the content of the first statement. Martinez, 272 custody for approximately eight hours before Bolton S.W.3d at 626–27 (referring to examples in Seibert began questioning him and had previously been plurality and concurrence). questioned by Evans and Padilla for an indeterminate amount of time. The record is silent regarding what *13 The trial court made the following findings relevant subjects were discussed as well as to whether appellant to this issue: received his Miranda warnings during that timeframe. Moreover, as set forth above, Bolton did not testify that [C]urative measures were taken the administration of Miranda warnings was delayed to before the second confession by the build rapport. He merely testified that the recording was following procedures: (1) there was delayed for that purpose. minimal reference to the original interrogation in the defendant’s The State has not cited any cases holding that an officer’s recorded statement, (2) different intentional withholding of Miranda warnings to build officers conducted the two rapport is not a deliberate attempt to circumvent Miranda interviews, (3) a substantial amount protections, nor have we found any. See Martinez, 272 of time elapsed between the S.W.3d at 624–25 (holding State failed to meet burden to original interrogation at 5:15 p.m. show withholding Miranda warnings was not deliberate and the formal recorded statement when, among other things, interrogation process at police after midnight, and (4) Miranda station was lengthy and appellant did not receive Miranda warnings were again given and warnings until seven hours after the initial interrogation). waived prior to the second We conclude that the trial court’s finding that the police statement, which was recorded. did not deliberately employ an illegal two-step interrogation process because any delay was due to an Only the first two findings arguably could be considered effort to build rapport is not supported by the record. No curative measures, but neither is supported by the record. testimony was elicited to this effect. There is no evidence As set forth above, Bolton referred to the original that the officers did not make a conscious choice to confession numerous times during the recorded interview. withhold Miranda warnings. See Martinez, 272 S.W.3d at Bolton began the video interrogation by stating, “Tell me 624. Accordingly, the State failed to meet its burden to what we talked about earlier.” Bolton also stated: “Earlier show that its interrogation technique was not deliberately you said you were out drinking with a friend. Tell me employed to undermine Miranda protections. See id. at what happened.” “Earlier you said the passenger door was 623–24. open.” “Earlier you said you ran down the street.” The video interview does not reflect that appellant referred to the unrecorded statement first, and Bolton did not refrain from referring to the statement. See Carmouche, 10 IV. No Evidence of Curative Measures S.W.3d at 332–33 (concluding trial court’s finding was As set forth above, absent curative measures, the post- clearly erroneous when “indisputable” video evidence warning statements must be excluded. Seibert, 542 U.S. at contradicted finding). 622, 124 S.Ct. 2601 (Kennedy, J., concurring); Carter, 309 S.W.3d at 37. “Curative measures should be designed In any event, the proper inquiry is whether Bolton to ensure that a reasonable person in the suspect’s refrained from referring to the earlier statement or situation would understand the import and effect of the whether appellant referred to it first—neither occurred Miranda warning and of the Miranda waiver.” Martinez, here. When an officer refers to the first interrogation in 272 S.W.3d at 621; see also Ervin, 333 S.W.3d at 212–13. the second interrogation, as here, it is evidence that a Curative measures allow the accused to distinguish the continuity exists between the two interrogations. See two contexts and appreciate that the interrogation has Martinez, 272 S.W.3d at 625–26. To avoid a Miranda taken a new turn. Martinez, 272 S.W.3d at 621; Ervin, violation in such a circumstance, an officer may inform 333 S.W.3d at 213. Examples of appropriate curative the defendant that any prior unMirandized statements measures include (1) a substantial break in time and made during a previous interrogation could not be used circumstances between the unwarned statement and the against him. See id. at 626. Here, Bolton repeatedly Miranda warning; (2) explaining to the defendant that the referred to appellant’s previous statement on the video unwarned statements, taken while in custody, are likely and thus treated that interrogation as a continuation of the inadmissible; (3) informing the suspect that, although he first. See id. at 625–26. On the video, Bolton did not previously gave incriminating information, he is not inform appellant that any unMirandized statements could obligated to repeat it; (4) interrogating officers refraining not be used against him. Accordingly, the trial court’s from referring to the unwarned statement unless the finding that Bolton’s reference to the unrecorded defendant refers to it first; or (5) if the defendant does statement was minimal and thus a curative measure is not

10 supported by the record. incriminating statements made during a custodial interrogation where no proper Miranda warnings were Moreover, it is undisputed that Bolton elicited the given constitutes constitutional error, and this court must original, unrecorded confession from appellant and then reverse unless we determine beyond a reasonable doubt recorded the statement. Thus, the trial court’s finding that that the error did not contribute to appellant’s conviction. different officers conducted the two interviews as a See id.; Akins v. State, 202 S.W.3d 879, 891–92 curative measure is not supported by the record. (Tex.App.— Fort Worth 2006, pet. ref d.). In analyzing whether the constitutionally erroneous admission of a The third finding—that “a substantial amount of time defendant’s statement was harmless, we review whether elapsed between the original interrogation ... and the the admission of appellant’s statement contributed to the formal recorded statement” is not a curative measure. A jury’s verdict of guilty in this cause, regardless of whether curative measure would be a substantial break in time and there is evidence independent of the statement that is circumstances between the unwarned statement and the otherwise sufficient to sustain the jury’s verdict of guilt. Miranda warning. See id. at 626. When the presence of McCarthy v. State, 65 S.W.3d 47, 55 police personnel with the defendant is virtually (Tex.Crim.App.2001). If there is a reasonable likelihood uninterrupted, there is no substantial break in time and that the error materially affected the jury’s deliberations, circumstances between the prewarning statement and the then the error is not harmless beyond a reasonable doubt. Miranda warning. See id. at 625. Appellant had been Id. interviewed by Evans and Padilla for an indeterminate time period before Bolton began his interview. The only A defendant’s statement, especially a statement evidence of a break in time of police presence with implicating him in the commission of the charged offense, appellant was Bolton’s testimony that “after [appellant] is unlike any other evidence that can be admitted against confessed,” Bolton “used the restroom and then a few the defendant. Id. at 55–56. The presence of other minutes later ... came back into the room” and took the overwhelming evidence that was properly admitted which recorded statement. That is not evidence that a substantial supports the material fact to which the inadmissible amount of time elapsed between the first and the second evidence was directed may be an important factor in the interrogations. Thus, the trial court’s finding is not evaluation of harm. Wall v. State, 184 S.W.3d 730, 746 supported by the record. (Tex.Crim.App.2006). However, a confession is likely to leave an indelible impact on a jury. McCarthy, 65 S.W.3d *14 The final relevant finding—that Miranda warnings at 56. were given and waived prior to the second statement16— likewise is not a curative measure. In fact, that is the If the jury believes that a defendant pattern of an improper “question first, warn later” has admitted the crime, it will interrogation technique when the prior statement was doubtless be tempted to rest its unwarned. See Seibert, 542 U.S. at 604–05, 124 S.Ct. decision on that evidence alone, 2601. This finding is not relevant. without careful consideration of the other evidence in the case. Apart, No evidence was presented that curative measures were perhaps, from a videotape of the taken in this case. Thus, we conclude on this record the crime, one would have difficulty State did not meet its burden to present evidence that the finding evidence more damaging to officers did not employ a two-step interrogation technique a criminal defendant’s plea of in a deliberate, calculated way to undermine appellant’s innocence. Miranda warnings or that the officers took curative measures to alleviate the purported failure to give such *15 Id. (quoting Arizona v. Fulminante, 499 U.S. 279, warnings before the original confession was obtained. 313, 111 S.Ct. 1246, 113 L.Ed.2d 302 (1991) (Kennedy, Accordingly, the trial court’s findings that the officers did J., concurring)). not employ a two-step interrogation technique in a deliberate, calculated way to undermine appellant’s Here, appellant confessed to shooting the two Miranda warnings and that officers took curative complainants execution-style as they sat in a car and to measures are not supported by the record and are clearly stealing the complainants’ marijuana and cars. He also erroneous. The trial court erred in admitting appellant’s confessed that he threw the gun he used in the videotaped statement. commission of the offenses into a bayou. The State presented evidence that corroborated the confession. A neighbor heard gun shots, left his house, and saw the two bodies and a man stumbling toward the bayou. A witness V. Admission of Statement Harmful testified that he walked into a house after the shooting. We must determine whether admitting appellant’s The witness testified that a group of people, including videotaped statement was harmful error requiring appellant, was in the house, and the people were reversal. See Tex. R. App. P. 44.2(a). The admission of celebrating. The witness testified, “They said that they had

11 shot somebody.” He said “they showed him a bag of The State’s burden of proof regarding an alleged marijuana. He could not remember who showed him the “question first, warn later” interrogation technique bag, but he “guess [ed]” it was appellant. However, he As noted in the majority opinion, in Martinez v. State, the said appellant “was not really the one that was speaking Court of Criminal Appeals held that the State has the that much.” He said “they” told him “they” had a gun burden of proving that the police did not deliberately “that they threw away.” He also said appellant’s employ an alleged “question first, warn later” accomplice Martinez did most of the talking. interrogation technique to circumvent the defendant’s Miranda protections.1 Four dissenting judges thought that Another witness had gone to the house with the first the burden should be on the defendant to present a witness to obtain marijuana. That witness said appellant sufficient record showing that the police did not and Martinez were there with a group of people. deliberately employ an alleged “question first, warn later” Appellant and Martinez were “jumpy.” The second interrogation technique.2 One concurring judge stated that witness testified that appellant said “[t]hey killed two he had not decided whether the State had the burden people because of a bag of weed.” Appellant also found by the majority but that the court did not need to purportedly said that “[t]hey had [the complainants’] car address this issue to resolve the case.3 Though this in their garage.” Defense counsel elicited testimony from statement indicated that only four judges on the high court the second witness that in his earlier statement to police, concluded that the State had the burden of proof, the he said Martinez did the talking, not appellant. No concurring judge joined the court’s opinion, in which the evidence was presented that appellant was the shooter court held that the State has the burden of proving that the other than appellant’s videotaped confession. Although police did not deliberately employ an alleged “question some evidence of appellant’s guilt corroborates his first, warn later” interrogation technique.4 Therefore, the confession, we cannot say there is no reasonable conclusion that the State has the burden of proof was likelihood that the State’s use of appellant’s statement contained in an opinion joined by five judges, and thus materially affected the jury’s deliberations. See id. constitutes a binding precedent of the Court of Criminal Appeals.5 We sustain appellant’s sole issue. We reverse the judgment of the trial court and remand for a new trial.17 See Tex. R. App. P. 43.2(d); McCarthy, 65 S.W.3d at 56. The requirement that appellant timely present to the trial court a complaint that the police deliberately employed a “question first, warn later” interrogation technique To preserve a complaint for appellate review, a party must (Frost, C.J., dissenting) present to the trial court a timely request, objection, or motion stating the specific grounds for the ruling desired. 6 The appellate complaint must comport with a specific complaint that appellant timely lodged at trial.7 A DISSENTING OPINION complaint in which the party states one legal theory may not be used to support a different legal theory on appeal. 8 Kem Thompson Frost, Chief Justice, dissenting. Even constitutional errors may be waived by failure to *16 Under precedent from the Court of Criminal Appeals, timely complain in the trial court.9 when a defendant moves to suppress a statement made after receiving Miranda warnings because the statement It violates “ordinary notions of procedural default” for an was made as part of an alleged “question first, warn later” appellate court to reverse a trial court’s decision on a legal interrogation technique used by the police to circumvent theory not timely presented to the trial court by the the defendant’s Miranda protections, the State has the complaining party.10 Texas Rule of Appellate Procedure burden of proving that the police did not deliberately 33.1 encompasses the concept of “party responsibility,” employ such a technique. But, under preservation-of-error meaning that appellant, as the complaining party, had the principles, the State does not have this burden of proof responsibility to clearly convey to the trial court the unless the defendant timely presents to the trial court a particular complaint that he now raises on appeal, complaint that the police deliberately employed a including “the precise and proper application of the law as “question first, warn later” interrogation technique. In the well as the underlying rationale.”11 To avoid forfeiting an case under review, the first time appellant arguably raised appellate complaint, the complaining party must “let the this complaint was during closing argument at the trial judge know what he wants, why he thinks he is suppression hearing after the State had presented its entitled to it, and to do so clearly enough for the judge to evidence and rested. Because appellant did not timely understand him at a time when the judge is in the proper raise this complaint, it does not provide a basis for position to do something about it.’ ”12 This requirement reversing the trial court’s judgment. allows the trial court or the opposing party the opportunity to remove the basis for the objection or to correct the alleged error.13 A trial court’s decision will not

12 be reversed on a theory upon which the non-appealing first, warn later” interrogation technique.19 Immediately party did not have an opportunity to develop a complete after appellant made these statements during closing factual record.14 argument, the trial court ruled on appellant’s motion to suppress, granting it in part and denying it in part. *17 Under the Martinez precedent, when a defendant moves to suppress a statement made after receiving In ruling on this motion, the trial court did not indicate Miranda warnings because the statement was made as any awareness that it was ruling on a complaint based on part of an alleged “question first, warn later” interrogation the alleged use of a “question first, warn later” technique used by the police to circumvent the interrogation technique. The majority relies in part on the defendant’s Miranda protections, the State has the burden trial court’s findings of fact regarding such a technique, of proving that the police did not deliberately employ made long after the trial of this case under an abatement such a technique.15 But, under preservation-of-error order of this court, as instructed by the Court of Criminal principles, this burden does not arise unless the defendant Appeals.20 Because these findings were made at the first timely presents to the trial court a complaint that the instance of the Court of Criminal Appeals, they do not police deliberately employed a “question first, warn later” indicate that the trial court intended, when it ruled on the interrogation technique.16 motion to suppress, to rule on a complaint based on an alleged use of a “question first, warn later” interrogation technique.21 Even presuming the trial court was aware of such a complaint, it is apparent from the record the State Appellant’s failure to timely present to the trial court a did not have a reasonable opportunity to present evidence complaint that the police deliberately employed a in response to this complaint because the complaint came “question first, warn later” interrogation technique after the close of the evidence at the suppression hearing. On remand, the State asserts for the first time that The untimeliness of the complaint is fatal to error appellant failed to preserve error in the trial court. In preservation. neither of his written motions to suppress did appellant complain that the police deliberately employed a *18 The State did not raise its preservation-of-error “question first, warn later” interrogation technique. After argument in its original briefing in this court. Nor did this the close of the evidence at the suppression hearing and court address preservation of error in its opinion on during closing argument at that hearing, appellant’s original submission. Nonetheless, lack of error primary argument was that the videotaped confession preservation may be raised on remand from the Court of should be suppressed because all of the voices on the Criminal Appeals, even though the high court did not recording were not identified. At the end of his closing address preservation of error in its opinion.22 If the argument, appellant made the following additional complaint was not preserved for appellate review, it is argument: waived.23

And my next approach ... is I’m Because appellant did not timely raise the “question first, contending this is a two-step warn later” complaint, he failed to preserve error in the interview.... And once they got him trial court, and this court may not reverse the trial court’s to say what they wanted him to say, judgment based on this complaint.24 Accordingly, this they took him in and videoed him court should overrule appellant’s sole issue and affirm the and gave his Miranda warning and trial court’s judgment. Because the court does not do so, I he told the story again. And I’m respectfully dissent. suggesting under the existing case law, that’s illegal and the statement should be suppressed.

Presuming for the sake of argument that these statements clearly conveyed to the trial court the particular complaint that appellant now raises on appeal and that appellant’s counsel’s words, as quoted above, were sufficient to voice this complaint, the objection was not timely because it was asserted for the first time at the end of closing argument after the close of the evidence at the hearing. 17 Lodging the complaint at this time did not allow the trial court or the State the opportunity to remove the basis for the objection or to correct the alleged error. 18 This failure to timely raise the complaint denied the State an opportunity to develop a complete record and to prove that the police did not deliberately employ a “question

13 Footnotes 1 Vasquez v. State, 411 S.W.3d 918, 919–20 (Tex.Crim.App.2013). When a question is raised as to the voluntariness of a statement of an accused, article 38.22 of the Code of Criminal Procedure requires a trial court to enter “an order stating its conclusion as to whether or not the statement was voluntarily made, along with the specific finding of facts upon which the conclusion was based.” Tex.Crim. Proc.Code art. 38.22 § 6. 2 The relevant facts concerning the crime are discussed below.

3 Miranda v. Arizona, 384 U.S. 436, 478–79, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966) (prohibiting use of oral statement of accused made as result of custodial interrogation unless certain warnings are given and accused knowingly, intelligently, and voluntarily waives rights). 4 Texas Code of Criminal Procedure article 38.22, section 3 restricts the admissibility in a criminal proceeding of statements made during custodial interrogation to statements that are recorded and obtained after the accused has been given a statutory warning akin to the Miranda warnings and “knowingly, intelligently, and voluntarily waives any rights set out in the warning.” 5 The trial court did not expressly make any conclusions of law, although some of the trial court’s findings are conclusions of law.

6 The classic example of this technique occurs when “the suspect’s first, unwarned interrogation [leaves] ‘little, if anything, of incriminating potential left unsaid,’ making it ‘unnatural’ not to ‘repeat at the second stage what had been said before.’ ” Bobby v. Dixon, –––U.S. ––––, 132 S.Ct. 26, 31, 181 L.Ed.2d 328 (2011) (citing Seibert, 542 U.S. at 616–17, 124 S.Ct. 2601)). 7 We note that the Court of Criminal Appeals has twice addressed in unprecedential, unpublished opinions whether raising the issue of voluntariness preserves the issue of whether a two-step interrogation technique was used in a deliberate, calculated way to undermine Miranda protections. See Hunt v. State, No. PD–0152–12, 2013 WL 3282973, at *4–5 (Tex.Crim.App. June 26, 2013) (not designated for publication) (holding raising the issue of voluntariness in the context of midstream warnings preserved complaint when, among other things, trial court found “second confession [was] not so tainted as to make it inadmissible” and thus trial court “clearly” had notice of appellant’s Seibert complaint); Batiste v. State, No. AP–76,600, 2013 WL 2424134, at *16 (Tex.Crim.App. June 5, 2013) (not designated for publication) (holding that objection to “voluntariness” of defendant’s statement did not preserve error as to two-step interview when appellant did not reference Seibert, Carter, “two-step questioning,” “question first, warn later” or any other issues that might raise an issue under Seibert and the trial court’s findings of fact and conclusions of law were directed only to general voluntariness). The facts of this case are closer to Hunt because appellant raised the issue of voluntariness in his first suppression motion and, as discussed below, objected to the officers’ purported “two-step interview” at the hearing and the trial court’s findings are directed toward the Seibert challenge. 8 We find the State’s complaint that this objection was not raised until “closing argument at the suppression hearing” to be inconsequential. At that point in the hearing, the State could have requested to put on more evidence regarding this issue, but it did not do so. 9 We acknowledge that the trial court rendered its findings on remand; however, it made no finding that it had not been aware of appellant’s Seibert challenge at the time of the suppression hearing. 10 The only evidence of this was presented through appellant’s testimony.

11 When the two-step questioning tactic is not deliberately employed, “a suspect who has once responded to unwarned yet uncoercive questioning is not thereby disabled from waiving his rights and confessing after he has been given the requisite Miranda warnings.” See Oregon v. Elstad, 470 U.S. 298, 318, 105 S.Ct. 1285, 84 L.Ed.2d 222 (1985); see also Carter, 309 S.W.3d at 36; Ervin, 333 S.W.3d at 213. In this situation, when the first statement is unwarned but not coerced, “the admissibility of any subsequent statement should turn ... solely on whether it is knowingly and voluntarily made.” Elstad, 470 U.S. at 309, 105 S.Ct. 1285; see also Carter, 309 S.W.3d at 32; Ervin, 333 S.W.3d at 213. “Unless a deliberate two-step strategy is employed, Elstad applies.” Carter, 309 S.W.3d at 37; see also Ervin, 333 S.W.3d at 213. 12 Other Texas courts of appeals have noted that the burden of showing admissibility is on the State. See, e.g., Ervin, 333 S.W.3d at 235–36. Other jurisdictions have imposed this burden on the government as consistent with the government’s burden to prove admissibility of a confession before it may come into evidence. See, e.g., U.S. v. Capers, 627 F.3d 470, 479 (2d Cir.2010); U.S. v. Stewart, 536 F.3d 714, 719 (7th Cir.2008); U.S. v. Ollie, 442 F.3d 1135, 1142–43 (8th Cir.2006); Ross v. State, 45 So.3d 403, 427 (Fla.2010). 13 The Martinez court held that an incomplete record does not preclude an appellate court from analyzing whether a two-step questioning tactic was deliberately employed because it is the State’s burden to show the confession is admissible. See Martinez, 272 S.W.3d at 623. 14 For example, after administering Miranda warnings, Bolton began the video interrogation by stating, “Tell me what we talked about earlier.” 15 Defense counsel asked Bolton, “And if it comes to a point whether the Miranda warnings were read or not, y’all talked to him for almost eight hours and then all the [sic] sudden decide to start audio. Why don’t you audio the whole thing?” (Emphasis added.) Bolton responded, “[W]e just don’t do it. And it’s just a decision that we made that— sometimes it’s like hours, you know, just to get—to build rapport with the individual. You know, we talk to them about a number of things, about family.” 16 We note that the trial court found the warnings were “again” given. For the reasons set forth above, we conclude the State did not present evidence of when the original warnings were given and thus whether it was before Bolton elicited the first confession. 17 A motion to suppress is a specialized objection to the admissibility of evidence. Black v. State, 362 S.W.3d 626, 633 (Tex.Crim.App.2012). When an appellate court concludes that certain evidence is inadmissible, this is generally the law of the case. See Howlett v. State, 994 S.W.2d 663, 666 (Tex.Crim.App.1999) (“[A]n appellate court’s resolution of a question of law in a previous appeal of the same case will govern the disposition of the same issue when raised in a subsequent appeal.”). The law of the case doctrine may apply to a motion to suppress. See, e.g., Satterwhite v. State, 858 S.W.2d 412, 430 (Tex.Crim.App.1993) (applying law of the case because none of the facts surrounding search had changed); Ware v. State, 736 S.W.2d 700, 701 (Tex.Crim.App.1987) (applying law of the case when the facts and legal issues were “virtually identical”). However, though we have concluded that the State did not meet its burden of proof on this record, nothing prevents the State from offering additional evidence in support of the admissibility of the confession on remand. See Black, 362 S.W.3d at 633–34; Montalvo v. State, 846 S.W.2d 133, 136 (Tex.App—Austin 1993, no pet.). 1 Martinez v. State, 272 S.W.3d 615, 623–24 (Tex.Crim.App.2008).

2 Id. at 631 (Hervey, J., dissenting, joined by Keller, P.J., Meyers, and Keasler, JJ.).

3 Id. at 627–29 (Price, J., concurring).

4 See id. at 623–24 (Johnson, J., joined by Price, Womack, Holcomb, and Cochran); id. at 629 (Price, J., concurring).

5 See Reynolds v. State, 4 S.W.3d 13, 15–16 (Tex.Crim.App.1999).

6 See Tex. R. App. P. 33.1(a).

7 See Wilson v. State, 71 S.W.3d 346, 349 (Tex.Crim.App.2002).

8 See Broxton v. State, 909 S.W.2d 912, 918 (Tex.Crim.App.1995).

9 See id.

10 See Hailey v. State, 87 S.W.3d 118, 122 (Tex.Crim.App.2002).

11 See Pena v. State, 285 S.W.3d 459, 463–64 (Tex.Crim.App.2009).

12 Id. at 464 (quoting Lankston v. State, 827 S.W.2d 907, 909 (Tex.Crim.App.1992).

13 Id. at 464.

2 14 See Pena, 285 S.W.3d at 463–64; Hailey, 87 S.W.3d at 122.

15 See Martinez, 272 S.W.3d at 623–24.

16 See Pena, 285 S.W.3d at 463–64; Hailey, 87 S.W.3d at 122. See also United States v. Ollie, 442 F.3d 1135, 1142–43 (8th Cir.2006) (stating that “when a defendant moves to suppress a post-warning statement that he contends was given as part of a question-first interrogation, the prosecution must prove, by a preponderance of the evidence, that the officer’s failure to provide warnings at the outset of questioning was not part of a deliberate attempt to circumvent Miranda ”). 17 See Pena at 464,.

18 See id.

19 See id.

20 See Vasquez v. State, 411 S.W.3d 918, 920 (Tex.Crim.App.2013).

21 The majority also relies upon the failure of the trial court to make a finding that it was unaware of a Seibert challenge by appellant at the time of the suppression hearing. But, the trial court was not instructed in this court’s abatement order to make any findings regarding preservation of error or regarding its awareness of a Seibert challenge at the time of the suppression hearing. 22 See, e.g., Pena v. State, 285 S.W.3d 459, 464 (Tex.Crim.App.2009) (holding that appellant failed to preserve error in the trial court as to an appellate complaint, even though the Court of Criminal Appeals previously had vacated the court of appeals’s judgment and remanded to the intermediate court based on a procedural issue regarding the same appellate complaint, without addressing preservation of error). 23 See id. at 463–64.

24 See Pena, 285 S.W.3d at 463–64; Hailey, 87 S.W.3d at 122.

3 Appendix B

State v. Vasquez, th No. 1333231 in the 228 District Court of Harris County, Texas

Findings of Fact on Defendant’s Motion to Suppress March 7, 2014

4 5 6 7 8 9 10 11 12 13