Criminal Cases decided by the 5th Court of Appeals on July 18, 2017

The 5th Court of Appeals decided DELMAR ALFREDO FLORES, Appellant v. THE STATE OF TEXAS, Appellee, on July 18, 2017.

The Court issued a memorandum opinion affirming Appellant’s conviction for Aggravated Sexual Assault of a Child.

The case was on appeal from the 380th Judicial District Court in Collin County, Texas, as Trial Court Cause No. 380-82105-2013. From the appellate court:

In his first issue, appellant contends the trial court erred by not granting his motion to suppress. More specifically, appellant argues that while Detective Jones “technically” followed the law, appellant never understood he had a choice to answer the questions posed by the detective, and he did not know the detective had already prepared an arrest warrant prior to the interview. Appellant also argues he did not understand the significance of the Miranda warnings that were read to him, and even if he had understood their significance “he was not privy to the fact that he would never leave the interview a free man.” During the suppression hearing, Detective Jones testified that appellant came to the CAC that day voluntarily and he was not under arrest at the time of the interview, but that an arrest warrant for appellant had been prepared before he arrived. Jones read appellant his Miranda warnings and gave him a written copy of the warnings, which appellant read, initialed, and signed. After the recorded interview was over, Detective Jones exited the room and contacted a Plano police patrol officer, who arrived at the CAC and arrested appellant pursuant to the warrant that had been obtained prior to the interview.

The statement of an accused may be used in evidence against him if it appears it “was freely and voluntarily made without compulsion or persuasion.” TEX. CODE CRIM. PROC. ANN. art. 38.21. A statement may be deemed involuntary under several theories: (1) Article 38.22, section 6 (general voluntariness); (2) Miranda as expanded in article 38.22, sections 2 and 3 (the Texas confession statute); or (3) the Due Process Clause. See Oursbourn v. State, 259 S.W.3d 159, 169 (Tex. Crim. App. 2008). Appellant does not specify which of these theories is the basis for his argument on appeal. In his motion to suppress, he alleged that Detective Jones substantially deprived of him of his freedom, that his statements were coerced and enticed, that he did not waive his rights intelligently and knowingly, and that the admission of his statements violated the Fourth, Fifth, Sixth, and Fourteenth Amendments to the United States Constitution, Article I, Section 9 and 10 of the Texas Constitution, 2 and Articles 1.05 and 38.23 of the Texas Code of Criminal Procedure. Appellant reiterates these complaints in his brief. Because the trial court entered its findings and conclusions in accordance with article 38.22, section 6, of the code of criminal procedure and submitted a jury instruction on the voluntariness of the statement, we will address appellant’s complaint as a challenge to the general voluntariness of his statements.

Article 38.22, section 6, applies to both an accused’s custodial and non-custodial statements because it provides that only “voluntary” statements may be admitted.3 Oursbourn, 259 S.W.3d at 171; Allen v. State, 479 S.W.3d 341, 350 (Tex. App.––El Paso 2015, no pet). Claims of involuntariness under article 38.22, section 6, can be predicated on both police overreaching and on the defendant’s state of mind. See Oursbourn, 259 S.W.3d at 172; Allen, 479 S.W.3d at 350. The question to be asked is “[d]oes it appear—as 38.21 requires—that the statement was freely and voluntarily made without compulsion or persuasion?” Oursbourn, 259 S.W.3d at 172; see Allen, 479 S.W.3d at 350. Conditions caused by illness, medication, mental disability, mental capacity, and intoxication can be considered as factors in determining whether the statement was voluntary. Oursbourn, 259 S.W.3d at 172; Allen, 479 S.W.3d at 350. Other factors that may render a statement inadmissible include youth, intoxication, mental retardation, and other disabilities. See Oursbourn, 259 S.W.3d at 172–73; Holt v. State, No. 05-14-00914- CR, 2016 WL 3018793, at *12 (Tex. App.—Dallas Dec. 13, 2016, pet. filed) (mem. op., not designated for publication). The potential “involuntary” scenarios encompassed by article 38.22 are broader in scope than those covered by due process or Miranda. Oursbourn, 259 S.W.3d at 173; Holt, 2016 WL 3018793, at *12. As a general rule, whether a confession was voluntarily rendered must be analyzed by examining the totality of the circumstances. Arizona v. Fulminante, 499 U.S. 279, 285–86, (1991); Delao v. State, 235 S.W.3d 235, 239 (Tex. Crim. App. 2007); Allen, 479 S.W.3d at 350.

Appellant’s argument is that his suppression motion should have been granted because he has an eighth-grade education, English is not his first language, and Detective Jones interviewed him without telling him he had already secured an arrest warrant prior to the interview. Appellant contends that “[a]ny oral statements cannot be made voluntarily and knowingly when the subject doesn’t know what is going on and information has been withheld from him.” But the Texas Court of Criminal Appeals has noted that factors such as youth, intoxication, mental retardation, or other disabilities are usually not enough, by themselves, to render a statement inadmissible when evaluating the voluntariness of a confession. See Oursbourn, 259 S.W.3d at 172–73; Holt, 2016 WL 3018793, at *12. Furthermore, “‘[t]he mere fact that appellant is uneducated and illiterate does not mean that he does not understand the nature of the rights he is waiving and cannot voluntarily give a confession.’” Martinez v. State, 131 S.W.3d 22, 35 (Tex. App.—San Antonio 2003, no pet.) (quoting Peacock v. State, 819 S.W.2d 233, 235 (Tex. App.–– Austin 1991, no pet.)). Nor did appellant present any evidence that his eighth-grade education or Spanish-speaking background had any effect on his ability to understand his rights, waive his rights, or voluntarily make a statement.

The record shows that after appellant voluntarily arrived at the CAC, Detective Jones administered the statutory warnings to appellant and attempted to make sure appellant understood them. Both Jones and appellant spoke English and there did not appear to be a communication problem. Appellant told Jones that he could read, and he appeared to read the written warnings. After doing so, he commented, “Yeah, it’s pretty much what you’ve already read to me, right?” Appellant initialed and signed the warnings in the places indicated on the form and agreed to speak with the detective. Appellant then willingly participated in the interview, which lasted approximately forty-five minutes. The record shows no evidence of intimidation or coercion. Indeed, at one point appellant told the detective, “I’m not afraid to talk to you.” At no point did appellant request an attorney or ask that the interview be terminated. The record contains no evidence that appellant’s will was overborne because of his education level or his Spanish-speaking background. Moreover, there is nothing in this record showing the kind of police behavior that would typically render a statement involuntary. See Oursbourn, 259 S.W.3d at 170-71 (listing various examples of police overreaching).

As for appellant’s contention that the detective should have told him he had already secured a warrant for his arrest, appellant does not cite any pertinent authority to support this argument. The Constitution does not require that a criminal suspect know and understand every possible consequence of a waiver of the Fifth Amendment privilege. See Ripkowski v. State, 61 S.W.3d 378, 384 n.10 (Tex. Crim. App. 2001) (citing Colorado v. Spring, 479 U.S. 564, 573 (1987)); Canady v. State, 100 S.W.3d 28, 30 (Tex. App.—Waco 2002, no pet.). It is enough that the suspect knows he may choose not to talk to law enforcement officers, to talk only with counsel present, or to discontinue talking at any time. Ripkowski, 61 S.W.3d at 384 n.10. Furthermore, the Supreme Court has “never held that mere silence by law enforcement officials as to the subject matter of an interrogation is ‘trickery’ sufficient to invalidate a suspect’s wavier of Miranda rights.” See Spring, 479 U.S. at 576; see also Murphy v. State, 100 S.W.3d 317, 322 (Tex. App.—San Antonio 2002, pet. ref’d) (“[I]t is not critical that a suspect know the charges to which he is susceptible.”).

Like an officer’s silence regarding the subject matter of an interrogation, Detective Jones’s silence regarding the arrest warrant did not render appellant’s statement involuntary. The warrant’s existence was not a required admonishment and appellant offered no evidence or argument as to how it improperly affected his decision to participate in the interview. As the Supreme Court stated in Colorado v. Spring, a valid waiver does not require authorities to “supply a suspect with a flow of information to help him calibrate his self-interest in deciding whether to speak or stand by his rights.” Spring, 479 U.S. at 577. Therefore, we conclude that an examination of the totality of the circumstances demonstrates the trial court did not abuse its discretion by denying appellant’s motion to suppress. We overrule appellant’s first issue.

The 5th Court of Appeals also decided Darrell Boyd Mitchell , Appellant v. THE STATE OF TEXAS, Appellee, on July 18, 2017.

The Court issued a memorandum opinion affirming Appellant’s conviction for Assault.

The case was on appeal from the Criminal District Court No. 2 in Dallas County, Texas, as Trial Court Cause No. F-1575208-I.


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Criminal Cases decided by the 5th Court of Appeals on July 18, 2017 – The Dallas Lawyer