Affirmed; Opinion Filed; October 3, 2019




                                                      In the
                                    Court of Appeals
                             Fifth District of Texas at Dallas
                                             No. 05-18-00870-CR
                                             No. 05-18-00871-CR
                                             No. 05-18-00872-CR

                                 THE STATE OF TEXAS, Appellant
                                             V.
                                KEVIN CASTANEDANIETO, Appellee

                       On Appeal from the Criminal District Court No. 6
                                    Dallas County, Texas
               Trial Court Cause Nos. F17-57212-X, F17-57213-X & F18-00407-X

                                                  OPINION
                          Before Justices Bridges, Partida-Kipness, and Carlyle
                                       Opinion by Justice Carlyle

         On the court’s own motion, we withdraw our October 2, 2019 memorandum opinion and

vacate the judgment of that date. The following is now the court’s opinion.

         The State appeals the trial court’s order suppressing appellee Kevin Castanedanieto’s

statement. For the reasons that follow, we affirm.1

The law

         We review a trial court’s ruling on a motion to suppress for an abuse of discretion and

apply a bifurcated standard of review. Furr v. State, 499 S.W.3d 872, 877 (Tex. Crim. App. 2016);




    1
      Though the State’s sole issue on appeal is multifarious, we consider it and the differing legal bases the State
offers in support. See TEX. R. APP. P. 38.9; cf. TEX. R. APP. P. 38.1(f), (i).
State v. Aguilar, 535 S.W.3d 600, 604 (Tex. App.—San Antonio 2017, no pet.). We view the

evidence in the light most favorable to the trial court’s ruling, giving almost complete deference

to the court’s determination of historical facts that the record supports, especially those based on

credibility or demeanor assessments.2 Crain v. State, 315 S.W.3d 43, 48 (Tex. Crim. App. 2010);

State v. Garcia-Cantu, 253 S.W.3d 236, 241 (Tex. Crim. App. 2008). We review with this

deference even in cases involving video evidence. Montanez v. State, 195 S.W.3d 101, 109 (Tex.

Crim. App. 2006). That is because our system does not require parties to “concentrate their

energies and resources on persuading the trial judge” only to start over on appeal, treating the trial

proceedings as a “tryout,” and requiring parties to “persuade three more judges at the appellate

level.” Id. (citing and quoting Anderson v. Bessemer City, 470 U.S. 564, 574–75 (1985)).3

         We afford that same deference regarding the trial court’s “application of law to questions

of fact and to mixed questions of law and fact, if resolution of those questions depends on an

evaluation of credibility and demeanor.” Crain, 315 S.W.3d at 48. For a mixed question of law

and fact that does not depend on credibility or demeanor evaluation, we “may conduct” de novo

review. Id. “The winning side is afforded the ‘strongest legitimate view of the evidence’ as well


    2
      We note that, because the court granted suppression, it was not required to issue findings of fact and conclusions
of law and we need not remand for the court to take that action. See TEX. CODE CRIM. PROC. art. 38.22, § 6 (“In all
cases where a question is raised as to the voluntariness of a statement of an accused, the court must make an
independent finding . . . as to whether the statement was made under voluntary conditions.”); see also State v. Perez,
No. 14-16-00690-CR, 2017 WL 5505855, at *9 (Tex. App.—Houston [14th Dist.] Nov. 16, 2017, no pet.) (mem. op.,
not designated for publication) (concluding article 38.22 requires trial court to file findings and conclusions “only if it
decides that the statement is voluntarily made” (emphasis added)).
    3
      Montanez groups Carmouche v. State, 10 S.W.3d 323, 332 (Tex. Crim. App. 2000), as part of a line of cases
rendering our law “somewhat unclear as to which standard of review” applies to video evidence in motion to suppress
cases. Montanez, 195 S.W.3d at 108. The court of criminal appeals then clarified as cited above. Id. at 109.
          The CCA has since cited Carmouche for part of the proposition that the dissent asserts, that we cannot ignore
indisputable video evidence. State v. Duran, 396 S.W.3d 563, 570 n.20 (Tex. Crim. App. 2013). But the CCA has also
stated that deference to the trial court is appropriate when video evidence did “not indisputably refute the trial court’s
finding.” State v. Gobert, 275 S.W.3d 888, 892 n.13 (Tex. Crim. App. 2009). In line with the CCA, we believe Duran
and Gobert can coexist and that the Gobert explanation of Montanez most closely tracks the situation in this case,
requiring us not to “second-guess the trial court’s determination of the facts.” See Duran, 396 S.W.3d at 571 n.21; see
also State v. Hummel, No. 05-11-00833-CR, 2012 WL 3553383, at *3 (Tex. App.—Dallas Aug. 17, 2012, pet. ref’d)
(not designated for publication) (affirming trial court’s grant of motion to suppress when video showed traffic stop
that was basis of arrest).
as all reasonable inferences that can be derived from it.” Duran, 396 S.W.3d at 571 & n.23 (citing

State v. Weaver, 349 S.W.3d 521, 525 (Tex. Crim. App. 2011); State v. Woodard, 341 S.W.3d 404,

410 (Tex. Crim. App. 2011)).

         We review the trial court’s legal ruling de novo unless the implied factual findings

supported by the record are also dispositive of the legal ruling. State v. Kelly, 204 S.W.3d 808, 819

(Tex. Crim. App. 2008). “[T]he party with the burden of proof assumes the risk of nonpersuasion.

If this party loses in the trial court and the trial court makes no explicit fact findings, then this party

should usually lose on appeal.” Id. We must uphold the trial court’s ruling if it is supported by the

record and correct under any theory of law applicable to the case, even if the trial court gave the

wrong reason for its ruling.4 State v. Stevens, 235 S.W.3d 736, 740 (Tex. Crim. App. 2007);

Armendariz v. State, 123 S.W.3d 401, 404 (Tex. Crim. App. 2003).

The facts

         Castanedanieto was eighteen years old, an immigrant from El Salvador some five years

prior, and did not graduate high school. He made two custodial post-arrest statements. He made

the first to Detective Thayer shortly after arrest, around 3:00 a.m., and made the second to

Detective Garcia the next day, around dinner time. The record includes video recordings of both

statements. The State sought to admit only the second statement.

         Detective Thayer began the first interrogation by saying, “I’m working on this case . . . kind

of a mess, huh? Kind of a mess. We’ll talk about it here in a minute.” Shortly thereafter, Detective

Thayer was authoritative, using gestures as he spoke: he told Castanedanieto, “take your arms out




     4
       When the record is silent on the reasons for the trial court’s ruling, or when there are no explicit fact findings
and neither party timely requested findings and conclusions from the trial court, we imply the necessary factual
findings that support the trial court’s ruling if the evidence, viewed in the light most favorable to the ruling, supports
those implied findings. See Garcia-Cantu, 253 S.W.3d at 241 (citing Kelly, 204 S.W.3d at 819). The dissent seeks to
apply its interpretation of the evidence below instead of implying the necessary findings to support the trial court’s
ruling.
of your shirt . . . it’s a respect thing though, right, cause we’re gonna have a conversation and

we’re gonna be truthful with each other.”

         During the first four minutes of the video, Detective Thayer asked Castanedanieto several

background questions. Thayer then read Castanedanieto his Miranda rights in English. When he

asked Castanedanieto if he understood the rights he read to him, Castanedanieto tilted his hand

back and forth. The detective asked, “A little bit?” to which Castanedanieto nodded his head and

explained that he did not speak a lot of English. When Castanedanieto indicated that he could read

Spanish, Detective Thayer had him read the Miranda card in Spanish.5

         After Castanedanieto read the card out loud and was asked if he understood,

Castanedanieto, looking down at the table, moved his head slightly. The detective then asked

Castanedanieto if he was willing to talk to him, at which point he looked up at Detective Thayer

and uttered “um.” As Castanedanieto looked back down at the table, Detective Thayer continued,

saying, “to try to figure this all out.” Castanedanieto then looked up at the detective while tapping

and rubbing his cheek with his hand and said, “It’s ’cause—um—I don’t understand.” Detective

Thayer then declared, “Ok, let’s talk about what happened tonight,” to which Castanedanieto

responded, “Yes, sir.” Castanedanieto answered Detective Thayer’s questions for the next twenty-

two minutes.

         The next day Detective Garcia took his turn interrogating Castanedanieto. Garcia testified

he was investigating crimes similar to those for which Castanedanieto and his cohort were arrested.

Detective Garcia went to the jail and asked Castanedanieto if he would come to police headquarters

for an interview. Castanedanieto agreed. Detective Garcia got him food from McDonald’s and


    5
       The dissent seems to divine meaning from the circumstances that Castanedanieto seemed to understand English
well enough before the Miranda warnings, that he spoke in English, and that his lawyer did not require an interpreter
at the suppression hearing. In doing so, the dissent steps outside the proper standard of review and works to reweigh
and recategorize the evidence before the trial court piece by piece. If that were our function here, we may well agree
with the dissent. But in this case, we must defer to the trial court’s factual conclusions to the extent they implicate
these circumstances, even if implied.
brought him back to the interrogation room, where he was allowed to eat before the detective

conducted the interrogation. They spoke in English. It is not clear what Detective Garcia knew of

Castandanieto’s prior interrogation, though he certainly knew it had occurred and that

Castanedanieto had confessed to certain things.

       As the video played at the hearing, Garcia explained to the trial court that during the initial

questioning while he was trying to get to know Castanedanieto, he had no concerns about

Castanedanieto’s understanding of what he was saying and that Castanedanieto responded properly

to his questions. The video depicts Garcia asking Castanedanieto about the police in El Salvador.

Castanedanieto responded they are “not good.” Garcia then declared, “Basically, we’re gonna go

over everything that you talked about with the other detective and now that you’ve had a couple

of days to think about stuff, maybe you might remember something that you didn’t, or you might

have some questions of your own for me that I’ll try to answer.”

       After Garcia finished reading Castanedanieto his Miranda rights and asked him if he

understood the rights he read to him, Castanedanieto responded “Yes” and nodded his head.

Detective Garcia also testified he did not promise Castanedanieto anything in exchange for the

statement, nor did he threaten or coerce him into giving him a statement. That said, Garcia bought

Castanedanieto McDonald’s for dinner, which was not insignificant to the eighteen-year-old.

Castanedanieto ate the food and commented that he hoped it would not prove to be his last

hamburger for awhile. Garcia attempted to downplay Castanedanieto’s concern and continued with

his interrogation.

       After watching the two interrogation videos, and after hearing Garcia testify regarding his

interaction with Castanedanieto, the trial court suppressed the second video interrogation.

Application of law to facts
          The State asserts in its issue that the trial court erred in suppressing Castanedanieto’s

second statement because that statement “was given knowingly, intelligently, and voluntarily,”

and Castanedanieto’s “Fifth and Sixth Amendment rights to counsel were not violated.” Based on

our abuse-of-discretion review, we conclude the trial court’s ruling is supported by the record.

          The trial court could have based its suppression in part on the continued behavior of law

enforcement figures declaring to Castanedanieto that he would speak to them in the interrogation

setting. The evidence supports an inference that Detective Thayer’s declarative statements set the

tone for an expectation that Castanedanieto would speak to authorities that overbore

Castanedanieto’s will and made his statements involuntary. Thayer told Castanedanieto twice that

he would be talking to the detective and then, despite going through the motion of providing

Miranda warnings in English and Spanish, despite Castanedanieto expressing hesitation by acts

and words, failed to elicit any verbal or non-verbal assent to waiving those rights. Instead, he said,

“Ok, let’s talk about what happened tonight.” Castanedanieto responded “Yes, sir” and went on to

tell on himself extensively. The very next day, Detective Garcia came calling and, though to a

lesser extent than Thayer, he too declared to Castanedanieto that he would talk. Further, Detective

Garcia reminded Castanedanieto of his interrogation and confession the day before, suggesting he

may have more to tell the second time around. This reference to the former confession gave the

trial court sufficient basis to have concluded that Castanedanieto’s second confession was

motivated, if only in part, by so-called cat-out-of-the-bag thinking.6



   6
       In United States v. Bayer, 331 U.S. 532, 540–41 (1947), Justice Jackson wrote,

          [A]fter an accused has once let the cat out of the bag by confessing, no matter what the inducement,
          he is never thereafter free of the psychological and practical disadvantages of having confessed. He
          can never get the cat back in the bag. The secret is out for good. In such a sense, a later confession
          may always be looked upon as fruit of the first. But this Court has never gone so far as to hold that
          making a confession under circumstances which preclude its use, perpetually disables the confessor
          from making a usable one after those conditions have been removed.
         The court of criminal appeals has set forth a list of factors and guiding principles to govern

courts’ analysis of the situation we have here, when a criminal defendant complains a latter

confession was tainted by a prior one. See Sterling v. State, 800 S.W.2d 513, 519–20 (Tex. Crim.

App. 1990) (factors to be considered when determining whether a former confession’s illegality

tainted a later one are: (1) whether the condition rendering the first confession inadmissible

persisted through later questioning; (2) the length of the break in time between the two confessions;

(3) whether the defendant was given renewed Miranda warnings; (4) whether the defendant

initiated the interrogation which resulted in the later confession; and (5) “any other relevant

circumstances,” including whether a magistrate warned defendant of his rights between

confessions, whether the defendant’s latter confession was motivated by earlier improper

influences brought to bear on him, whether the defendant remained in custody between the

confessions, whether the defendant conferred with counsel between confessions or requested

counsel, and whether the defendant gave the second confession when he otherwise might not have

because he had already given the first one).7

         From an analytical standpoint, Sterling involved the opposite (and much more common)

procedural situation from this case—a criminal defendant’s appeal from the denial of his motion

to suppress. The CCA held the trial court’s denial of suppression of Sterling’s first confession to

be error that, upon further analysis, was harmless in light of the proper admission of his subsequent

confession. Id. at 518. The first detective in that case unquestionably misled Sterling in a way

clearly prohibited by law. Id. at 515, 518. The second detective in Sterling did not compound the



     We refer to this line of cases as a potential basis for the trial court’s action, as we must in our role as an appellate
court. It is not to be read as some broadening of the cat-out-of-the-bag theory, which is distinctly cabined as a basis in
Texas law for either (1) suppression in the trial court or (2) reversing the denial of suppression.
     7
       The CCA borrowed this framework from the Seventh Circuit, which formulated it in response to a criminal
appellant’s complaint that, “had he known that his first confession would be suppressed he would not have made the
later incriminating statements, but having once let ‘the cat out of the bag’ remaining silent during the later interrogation
appeared to be an exercise in futility.” Holleman v. Duckworth, 700 F.2d 391, 396 (7th Cir. 1983).
error the first detective made by making similar promises to Sterling. Also, he came from a

different law enforcement agency, did not question Sterling about the prior confession, nor “did

he use this confession to elicit the latter confession from appellant.” The second detective said he

knew nothing about the earlier improper statements to Sterling. And, finally, Sterling never

invoked his Miranda rights, clearly waiving them each time he was warned. Id. at 515, 520.

         Here, the trial court granted the motion to suppress. We could easily write the opinion

affirming the trial court’s action had it denied Castanedanieto’s motion to suppress. But we just as

easily affirm the grant of the motion to suppress because of the wide discretion a trial court has in

making this decision. We stress that the video is not the only piece of evidence the trial court

evaluated here. Detective Garcia testified at the hearing, providing testimony regarding his visit to

Castanedanieto at the county jail, his invitation back to police headquarters, his offer to buy

Castanedanieto dinner, and the substance of their conversation during those events. Garcia

discussed their lack of speaking any Spanish to one another, as well as his perception that

Castanedanieto knew and understood English.8 The trial court had full discretion to assess Garcia’s

credibility and to view his demeanor. And, nothing in either video goes so far as to become

“indisputable video evidence” of Castanedanieto’s voluntariness to speak, given what we infer the


    8
       Garcia testified, and the dissent notes, that Castanedanieto used the slang word, “strap” in place of “gun” as
some indication he was ingrained into the culture of the United States. In the procedural posture of reviewing the grant
of suppression, though we consider the use of English, we believe it is not dispositive of the State’s claim that the trial
court abused its discretion. See also note 5 supra. There is a legitimate view of the evidence supporting affirmance,
expressed by Castanedanieto’s relatively recent immigration, his education level, and his lawyer’s explanation that
this was a comprehension issue, which was borne out by Castanedanieto’s on-the-spot statement in the first interview:
“it’s ’cause—um—I don’t understand.” Separately, the trial court would not have abused its discretion to minimize
the importance of Castanedanieto using slang and conclude that the young man perhaps latched on to slang as a way
of inculcating himself into a new culture.
          If, in five years after moving to a foreign country whose primary language was not one’s mother tongue, a
young man finds himself in police custody in that foreign country, we cannot say it would be unreasonable to conclude
one did not feel he fully comprehended a legal warning like the Miranda warning. The facts of this case at least allow,
though they may not demand, a conclusion that this is what courts refer to when they speak of the “compulsion inherent
in custodial surroundings.” See Miranda v. Arizona, 384 U.S. 436, 458 (1966). Nothing in this record indisputably
overcomes a conclusion that Castanedanieto felt this inherent compulsion and attempted, but was thwarted in his
attempt, to remain silent.
trial court concluded about the first confession and what it could have inferred about Garcia and

the second confession. Nothing in the second video indisputably demonstrates Castanedanieto was

not under the influence of the detectives’ declarations that he would speak to them or that he was

not motivated at least in part by cat-out-of-the-bag thinking.9

         We note that in Oregon v. Elstad, the Supreme Court walked back its recognition of the

cat-out-of-the-bag theory as a basis for excluding confessions. See 470 U.S. 298, 314 (1985). The

Court in Elstad said “the mere fact that a suspect has made an unwarned admission does not

warrant a presumption of compulsion.” Id. And, administering Miranda warnings to a “suspect

who has given a voluntary but unwarned statement ordinarily should suffice to remove the

conditions that precluded admission of the earlier statement.” Id. In those circumstances, the

“finder of fact may reasonably conclude that the suspect made a rational and intelligent choice

whether to waive or invoke his rights.” Id.

         But Elstad’s “may reasonably” language does not require appellate courts reviewing a

grant of suppression to reverse if the court can reweigh the facts in a way that may warrant a

conclusion that denying the motion was possible.10 Our function in this case is to review the trial

court’s actions for an abuse of discretion. We must examine the video evidence to determine if it

renders certain facts or circumstances indisputable, but are not to act as if the trial court




    9
       Again, we need not approve the trial court’s conclusion as the one we necessarily would have made, but cite
this path of legal analysis as a potential basis for suppressing the confession that was not an abuse of discretion. See
Stevens, 235 S.W.3d at 740 (courts of appeals may affirm for any applicable legal theory if trial court’s decision is
supported by the record); see also note 6 supra. The dissent reweighs each Sterling factor, suggesting a different
answer to the analysis. That is not our job here.
    10
        We note that case law suggesting limited application of a sound theory of human behavior does not render it
forever impotent. We suggest the cat-out-of-the-bag theory here only as one potential alternate basis a trial court could
have relied on in this situation where we affirm its order. Thus, in this case, we conclude the trial court did not abuse
its discretion by suppressing the second confession and that cat-out-of-the-bag thinking was an acceptable part of the
reason for that conclusion.
proceedings were just a tryout. See Montanez, 195 S.W.3d at 109 (citing and quoting Anderson,

470 U.S. at 574–75).11

         On this record, we conclude the trial court did not abuse its discretion by granting

Castanedanieto’s motion to suppress his second statement. We affirm the trial court’s order.


                                                                      /Cory L. Carlyle/
                                                                      CORY L. CARLYLE
                                                                      JUSTICE
Bridges, J., dissenting

Publish
TEX. R. APP. P. 47.2(b)
180870F.P05




    11
       See McPherson v. Rudman, No. 05-16-00719-CV, 2019 WL 3315453, at *3 (Tex. App.—Dallas July 24, 2019,
order) (Schenck, J., concurring on denial of en banc reconsideration) (“[W]e cannot function like an instant replay
booth.” (citing Michigan v. Lucas, 500 U.S. 145, 155 (1991) (Stevens, J., dissenting) (“We sit, not as an editorial
board of review, but rather as an appellate court. Our task is limited to reviewing ‘judgments, not opinions.’”))).
                               Court of Appeals
                        Fifth District of Texas at Dallas
                                      JUDGMENT

 THE STATE OF TEXAS, Appellant                    On Appeal from the Criminal District Court
                                                  No. 6, Dallas County, Texas
 No. 05-18-00870-CR        V.                     Trial Court Cause No. F17-57212-X.
                                                  Opinion delivered by Justice Carlyle,
 KEVIN CASTANEDANIETO, Appellee                   Justices Bridges and Partida-Kipness
                                                  participating.

       Based on the Court’s opinion of this date, the trial court’s order is AFFIRMED.


Judgment entered this 3rd day of October, 2019.
                               Court of Appeals
                        Fifth District of Texas at Dallas
                                      JUDGMENT

 THE STATE OF TEXAS, Appellant                    On Appeal from the Criminal District Court
                                                  No. 6, Dallas County, Texas
 No. 05-18-00871-CR        V.                     Trial Court Cause No. F17-57213-X.
                                                  Opinion delivered by Justice Carlyle,
 KEVIN CASTANEDANIETO, Appellee                   Justices Bridges and Partida-Kipness
                                                  participating.

       Based on the Court’s opinion of this date, the trial court’s order is AFFIRMED.


Judgment entered this 3rd day of October, 2019.
                               Court of Appeals
                        Fifth District of Texas at Dallas
                                      JUDGMENT

 THE STATE OF TEXAS, Appellant                    On Appeal from the Criminal District Court
                                                  No. 6, Dallas County, Texas
 No. 05-18-00872-CR        V.                     Trial Court Cause No. F18-00407-X.
                                                  Opinion delivered by Justice Carlyle,
 KEVIN CASTANEDANIETO, Appellee                   Justices Bridges and Partida-Kipness
                                                  participating.

       Based on the Court’s opinion of this date, the trial court’s order is AFFIRMED.


Judgment entered this 3rd day of October, 2019.
