                          COURT OF APPEALS
                          SECOND DISTRICT OF TEXAS
                               FORT WORTH


                               NO. 2-07-457-CR


JOHN ALVAREZ                                                       APPELLANT

                                        V.

THE STATE OF TEXAS                                                      STATE

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             FROM THE 355TH DISTRICT COURT OF HOOD COUNTY

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                         MEMORANDUM OPINION 1

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                                I. INTRODUCTION

      Appellant John Alvarez appeals his conviction for possession of

methamphetamine of less than one gram. In two points, Alvarez complains that

the trial court erred by admitting statements he made without proper Miranda

warnings and that the trial court erred when it overruled Alvarez’s objection to




      1
          … See Tex. R. App. P. 47.4.
a videotape because the State had failed to provide the defense with a copy of

the videotape within twenty days of the proceedings. We will affirm.

                   II. F ACTUAL AND P ROCEDURAL B ACKGROUND

      On October 7, 2006, Kristopher S. Hall, a trooper with the Texas

Department of Public Safety, noticed that a white Chevy pickup traveling on

Farm Road 51 in Hood County had what appeared to be an expired registration

sticker. As Trooper Hall slowed and pulled onto the shoulder, he saw in his rear

view mirror that the pickup was stopping.        Trooper Hall turned around,

activated his lights, and pulled in behind the pickup.        As Trooper Hall

approached the pickup, the driver leaned his head out of the window and asked

why he was being stopped. Trooper Hall noticed upon further inspection that

the vehicle had two registration stickers and no vehicle inspection sticker.

      Trooper Hall explained to the driver that he was stopped because he was

required to have an inspection sticker, and the driver seemed to understand.

After explaining the offense to the driver, Trooper Hall noticed that the driver

maintained a level of nervousness that made Trooper Hall suspicious. 2 Trooper

Hall identified Alvarez as the driver that he saw on the date in question.


      2
       … Trooper Hall further testified that Alvarez’s hands were shaking
“pretty bad” when he handed over his license, that the pulse in the side of his
neck was obvious, that he was looking around “quite a bit,” and that he was
not able to stand still in one place.

                                       2
      Trooper Hall wrote Alvarez a citation for the vehicle inspection violation

and then asked Alvarez if there was anything illegal inside the vehicle. When

Alvarez responded that there was nothing illegal inside the vehicle, Trooper Hall

asked for permission to search the vehicle, and Alvarez replied, “Go ahead.”

During the search of the vehicle, Trooper Hall found in the console a small tin

that contained pieces of a meth pipe. Trooper Hall thereafter placed Alvarez in

handcuffs, advised him that he was under arrest, and read him his Miranda

warnings.

      Alvarez told Trooper Hall that he did not know anything about the pipe,

but later Alvarez said that he had found the pipe on Fort Worth ISD school

grounds and had picked it up. Alvarez said that he did not know where he

should dispose of the pipe; he later admitted that he had previously used

methamphetamine.

      The State played a videotape of the stop, which had been recorded by a

camera mounted to the windshield in Trooper Hall’s patrol car. Afterwards, a

forensic scientist from the Texas Department of Public Safety testified that she

had scraped the pipe and that the residue contained a trace amount of

methamphetamine.

      After hearing the above evidence, the jury found Alvarez guilty of the

offense of possession of a controlled substance, namely methamphetamine of

                                       3
less than one gram. The trial court sentenced Alvarez to twenty-four months’

confinement; fined him $2,500; suspended imposition of the punishment as it

related to the confinement; and placed him on community supervision for five

years. This appeal followed.

                   III. P ROPER M IRANDA W ARNINGS W ERE G IVEN

      In his first point, Alvarez argues that the trial court erred by admitting

statements he made because the Miranda warnings he received were improper.

Specifically, Alvarez argues that Trooper Hall failed to question Alvarez as to

whether he understood his rights and whether he wished to waive his rights.

The State responds that the trial court did not err by admitting Alvarez’s

videotaped statements into evidence because Alvarez received proper Miranda

warnings and voluntarily waived his rights.

      In reviewing claims of Miranda violations, we conduct the bifurcated

review articulated in Guzman v. State. Ripkowski v. State, 61 S.W.3d 378,

381 (Tex. Crim. App. 2001), cert. denied, 539 U.S. 916 (2003). We afford

almost total deference to the trial court’s rulings on questions of historical fact

and on application-of-law-to-fact questions that turn upon credibility and

demeanor while we review de novo the trial court’s rulings on application-of-

law-to-fact questions that do not turn on credibility and demeanor. Id.




                                        4
      Texas Code of Criminal Procedure article 38.21 states that “[a] statement

of an accused may be used in evidence against him if it appears that the same

was freely and voluntarily made without compulsion or persuasion. Tex. Code

Crim. Proc. Ann. art. 38.21 (Vernon 2005). Texas Code of Criminal Procedure

article 38.22 states the following:

            Sec. 3. (a) 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:

            ....

             (2) prior to the statement but during the recording the
      accused is given the warning in Subsection (a) of Section 2 above
      and the accused knowingly, intelligently, and voluntarily waives any
      rights set out in the warning[.]

Id. art. 38.22, § 3(a)(2) (Vernon 2005).

      Trooper Hall testified that he told Alvarez the following:

            I advised him that he had the right to remain silent, not to
      make any statement at all, and any statement that he made could
      be used against him in court, and any oral or written statement he
      made could be used against him at his trial. I advised him that he
      had a right to have an attorney present to advise him before and
      during any questioning by peace officers or attorneys representing
      the State, and then if he was too poor to hire an attorney, one
      would be appointed by the court to represent him. I then informed
      Mr. Alvarez that if he chose to answer any questions that I had for
      him, he was doing so freely and voluntarily, and that he didn’t have
      to answer any questions.




                                       5
Trooper Hall said that he did not ask Alvarez if he wanted to waive his rights

because he is not required to and that he did not ask Alvarez if he understood

his rights. Trooper Hall said that Alvarez voluntarily waived his rights because

“[h]e was informed of his rights, he knew he didn’t have to answer questions,

and he answered questions.”

      The jury also watched the videotape of the stop and heard the following:

      Trooper Hall:     Turn around. Put your hands behind you.

      Alvarez:          What did I do?

      Trooper Hall:     Don’t move. You have the right to remain silent.
                        Anything you say can and will be used against
                        you in court. Any oral or written statement you
                        make may be used as evidence against you at
                        your trial.   You have the right to have an
                        attorney present before you’re asked any
                        questions or make any statements to peace
                        officers or attorneys representing the State. If
                        you can’t afford to hire one, one will be
                        appointed by the court to represent you. You
                        have the right to terminate the interview at any
                        time. Which means you don’t have to answer
                        questions.

      Alvarez:          [Nodding]

      Trooper Hall:     If I ask you questions and you choose to answer
                        them, you’ve done so freely. OK?

      Alvarez:          [Nodding] Yes, sir.




                                       6
      Here, Alvarez does not appear to argue that Trooper Hall failed to give

Alvarez the Miranda warnings. Instead, Alvarez argues that the trooper never

asked him if he understood these rights or was opting to waive these rights by

answering questions and that it was impossible to assume that he understood

and waived these rights because he is Hispanic.          Although Trooper Hall

admitted, and the record reflects, that he did not explicitly ask Alvarez if he

understood the warnings, the record demonstrates that Trooper Hall received

indications that Alvarez understood the Miranda warnings because Alvarez

nodded twice during the warnings and then responded, “Yes, sir,” when

Trooper Hall explained that by choosing to answer questions, he would be doing

so of his own free will. Trooper Hall also testified, and the video reflects, that

Alvarez spoke very good English.

      Other than the fact pointed out by Alvarez that he is of Hispanic descent,

no facts exist in the record to indicate that Alvarez did not understand the

warnings or did not waive the rights mentioned in the warnings. Alvarez never

requested a translator or otherwise indicated that he did not comprehend the

statements Trooper Hall made. On the contrary, he indicated nonverbally—by

nodding—and verbally—by saying, “Yes, sir”—that he understood the Miranda

warnings that Trooper Hall was giving him.




                                        7
      It was for the trial court to view the videotaped stop, hear Trooper Hall’s

testimony, determine the witnesses’ credibility, weigh the testimony given by

each witness, and then resolve conflicts between their testimony. We will not

second-guess the trial court’s determination that Alvarez understood his rights

and knowingly and voluntarily gave his statement to Trooper Hall.            See

Ripkowski, 61 S.W.3d at 383–84 (holding that trial court was entitled to

believe State’s witnesses—officers who testified that they read appellant the

required warnings, that appellant nodded his head after each warning was read,

and that appellant appeared to understand his rights and to waive those rights

voluntarily—rather than appellant’s expert, who testified that a combination of

stressful conditions, bipolar disorder, and cocaine binging rendered appellant

incompetent to understand and waive his rights); Lopez v. State, No. 03-02-

00453-CR, 2003 WL 1922430, at *2 (Tex. App.—Austin Apr. 24, 2003, no

pet.) (mem. op., not designated for publication) (holding that appellant, who

spoke limited English, understood his rights when detective explained

appellant’s rights to him, asked if he understood, and appellant paused and then

nodded his head). But see Reyes-Perez v. State, 45 S.W.3d 312, 319 (Tex.

App.—Corpus Christi 2001, pet. ref’d) (recognizing that communication

between officers and appellant solely by “hand gestures” was insufficient to

show understanding). We therefore overrule Alvarez’s first point.

                                       8
                 IV. D EFENSE T IMELY P ROVIDED W ITH V IDEOTAPE

      In his second point, Alvarez contends that the trial court abused its

discretion by denying his motion to suppress the videotape because the State

had failed to provide the defense with a copy of the videotape within twenty

days of the proceedings. The State responds that the trial court did not abuse

its discretion by admitting the videotape of Alvarez’s statement because the

State made the video recording available to the defense in May 2007 through

the State’s open file policy, which was months before the case went to trial.

      We review a trial court’s admission or exclusion of evidence for an abuse

of discretion. Rankin v. State, 974 S.W.2d 707, 718 (Tex. Crim. App. 1996)

(op. on reh’g); Montgomery v. State, 810 S.W.2d 372, 391 (Tex. Crim. App.

1991) (op. on reh’g). A trial court does not abuse its discretion, and we will

not reverse a trial court’s ruling, unless the ruling falls outside the zone of

reasonable disagreement. Rankin, 974 S.W.2d at 718. A trial court abuses its

discretion when it acts without reference to any guiding rules and principles or

acts arbitrarily or unreasonably. Montgomery, 810 S.W.2d at 380.

      Texas Code of Criminal Procedure article 38.22, section 3 states the

following:

            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:

                                       9
            ....

            (5) not later than the 20th day before the date of the
      proceeding, the attorney representing the defendant is provided
      with a true, complete, and accurate copy of all recordings of the
      defendant made under this article.

Tex. Code Crim. Proc. Ann. art. 38.22, § 3(a)(5). The object of the provision

appears to be bound with the circumstances surrounding its enactment: §

3(a)(5) was designed to offset the disadvantages to the defense caused by

permitting recordings to be surreptitious. Lane v. State, 933 S.W.2d 504, 516

(Tex. Crim. App. 1996). Affording defense counsel access to the recordings

effectuates this purpose as much as requiring actual delivery. Id. So long as

defense counsel is informed of the existence of the recording and permitted

reasonable access to a copy, the purpose of § 3(a)(5) has been met because

the word “provide” in section 3(a)(5) means to “make available or furnish.” Id.

In order to preserve error on a failure to provide a copy of a recording, however,

it is incumbent upon an appellant at the pretrial hearing to object to the State’s

failure to comply with the statute. Id.

      Here, the record reveals that the hearing on the motion to suppress was

not heard prior to the commencement of voir dire; thus, voir dire was the first

“proceeding” in the case. Alvarez, however, did not object on November 5,

2007, during voir dire. Instead, Alvarez waited until November 8 to complain

                                       10
of the State’s failure to comply with article 38.22, section 3(a)(5), which raises

a preservation concern. See id. at 516–17 (holding that trial court was not

placed on notice at pretrial hearing that defense counsel did not possess copies

of the recording because defense counsel waited until trial—four months after

pretrial hearing—to object).

      But assuming that Alvarez timely objected, the record reveals that the

State did comply with article 38.22, section 3(a)(5). When Alvarez brought up

his motion to suppress on the day after the voir dire concluded, the following

exchange took place on the record:

            [DISTRICT ATTORNEY]: The VHS tape -- I’m sorry -- the --
      the DVD, the original recording, is referenced in the offense report,
      and -- and, in fact, even states that it’s in the district attorney’s
      office as evidence, and then the DVD was not in the evidence
      room, so-to-speak, but was in an envelope and has been in an
      envelope in the district attorney’s file as long as the district
      attorney has had a file, and that has been certainly since May of
      2007, and probably before then. This case has been set for trial
      twice, once October 22nd, and then, of course, this setting. I
      know Mr. Platt’s been in my office I can remember distinctly at
      least on one occasion. The file, this file, like all other files, has
      been made available to Mr. Platt. I believe that -- that I have
      provided a copy.

            I have a case here, Lane versus State, 933 SW 2d 504, that
      basically says that if the legis -- that -- that -- the Code of Criminal
      Procedure does not require actual delivery of a recorded oral
      statement, and -- and if I could read from this case, says, “But if
      the legislature had intended to require actual delivery, they could
      have used the word, quote, ‘served,’ ‘given,’ or ‘delivered’ instead
      of ‘provide.’ Giving the object sought by the statute and the

                                        11
      consequences of the differing constructions, we hold that the word
      ‘provide’ in section 3(a)5 means to make available or furnish.”

             Your Honor, I think that one thing that is different with the
      way that VHS tapes are handled at least in my office and probably
      in most offices and DVDs is that often VHS tapes, because they’re
      bulky, are kept in a different place, and I think it’s sometimes
      disingenuous to -- for the State to argue, “Well, Your Honor, I
      provided this,” when, Your Honor, I really haven’t. But in this
      case, because the DVD is in a manila envelope and in the court’s
      file, has been available to the defense from the very beginning of
      this whole process, I believe that the State has complied with the
      dictates of the Code of Criminal Procedure. . . .

             [DEFENSE COUNSEL]: I think that the case law is also clear,
      Your Honor, that that [sic] mentioning in -- in an open file that a
      tape exists doesn’t comply with the statute. And there’s a couple
      of cases here that -- that say, telling the -- the defendant and the
      defense attorney that there is a video and that, “Here’s a transcript
      of it” didn’t comply with it. The first time I was told that -- that
      this tape existed was in Rob’s office on October 22nd, and on
      which day I couldn’t find it, and that’s -- that’s the -- the day I
      thought you had a -- you had a video there, but it was -- it was --
      it was on a disk. So October 22nd still isn’t twenty days before
      our proceeding, which our -- since we did not have a pretrial motion
      day, our proceeding would be when we picked the jury. And the --
      the statute’s also very clear on my not having to request it. You
      have to request things under 37.07 and 404(b), but other than
      that, I don’t request it, it has to be provided to me. [RR3:2–5]

      As shown by the record, this is not a case involving a surreptitious

recording, nor is it a case in which the State attempted to offer the defense a

transcript of the recording in lieu of a copy of the tape. Instead, as the District

Attorney pointed out, the offense report from the traffic stop referenced the

recording and explicitly stated that the recording was “in the district attorney’s

                                        12
office as evidence.”   These facts —an investigative report referencing a taped

recording and the location of the recording coupled with an “open file

policy”—have been held to meet the State’s burden to provide the defense

access to the recording. See Monroe v. State, Nos. 05-07-00164-CR, 05-07-

165-CR, 05-07-00166-CR, 05-07-00167-CR, 05-07-00168-CR, 05-07-00169-

CR, 2008 WL 2376990, at *3 (Tex. App.—Dallas June 12, 2008, no pet.) (not

designated for publication) (holding that trial court’s decision was not outside

the zone of reasonable disagreement when it denied appellant’s objection and

admitted the videotape; the record indicated that the State met its burden under

section 3(a)(5) because appellant did not controvert State’s argument that

police reports mentioned video recording of confession); see also McClenton v.

State, 167 S.W.3d 86, 90 (Tex. App.—Waco 2005, no pet.); Tinker v. State,

148 S.W.3d 666, 672 (Tex. App.—Houston [1st Dist.] 2004, no pet.) (both

involving open file policies and holding that the State had satisfied the

requirements of article 38.22, section 3(a)(5)). The fact that Alvarez’s counsel

here looked for a videotape on October 22 instead of a DVD does not alter the

fact that the State made the recording available in a manilla envelope, as part

of its open file, from the beginning of the case.




                                      13
     Applying the appropriate standard of review, we cannot say that the trial

court’s decision to deny Alvarez’s motion to suppress was outside the zone of

reasonable disagreement. We overrule Alvarez’s second point.

                               V. C ONCLUSION

     Having overruled both of Alvarez’s points, we affirm the trial court’s

judgment.




                                                SUE WALKER
                                                JUSTICE

PANEL: DAUPHINOT, WALKER, and MCCOY, JJ.

DO NOT PUBLISH
Tex. R. App. P. 47.2(b)

DELIVERED: January 15, 2009




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