                                                                                   PD-0078-15
                                                                 COURT OF CRIMINAL APPEALS
                                                                                  AUSTIN, TEXAS
                                                                 Transmitted 5/12/2015 1:03:05 PM
                                                                   Accepted 5/12/2015 2:19:17 PM
May 12, 2015                No. PD-0078-15                                         ABEL ACOSTA
                                                                                           CLERK

                                     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 BRIEF ON DISCRETIONARY REVIEW
                          

                                                  DEVON ANDERSON
                                                  District Attorney
                                                  Harris County, Texas

                                                  ERIC KUGLER
                                                  Assistant District Attorney
                                                  Harris County, Texas
                                                  TBC No. 796910
                                                  kugler_eric@dao.hctx.net

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

                                                  Counsel for Appellee

                     ORAL ARGUMENT PERMITTED
               STATEMENT REGARDING ORAL ARGUMENT

This Court has permitted oral argument in this case.


                     IDENTIFICATION OF THE PARTIES

Counsel for the State:

      Devon Anderson  District Attorney of Harris County

      Eric Kugler  Assistant District Attorney on appeal

      Eric Devlin  Assistant District Attorney at trial

Appellant or criminal defendant:

      Jose Vasquez

Counsel for Appellant:

      Mark Kratovil  Assistant Public Defender on appeal

      James Stafford; Marcy Kurtz  Counsel at trial

Trial Judge:

      Hon. Marc Carter  Presiding Judge
                                          TABLE OF CONTENTS

STATEMENT REGARDING ORAL ARGUMENT ................................................. 1

IDENTIFICATION OF THE PARTIES .................................................................... 1

INDEX OF AUTHORITIES ...................................................................................... 3

STATEMENT OF THE CASE................................................................................... 5

ISSUES PRESENTED............................................................................................... 6

   A. The lower court’s majority opinion erred in holding that the appellant
   preserved his two-step interrogation complaint for appellate review. ...................6

   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. 6

   C. The lower court’s majority opinion erred in holding that a two-step
   interrogation technique was deliberately employed by the police. ........................6

   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. ........6

STATEMENT OF FACTS ......................................................................................... 6

SUMMARY OF THE ARGUMENT ....................................................................... 11

ARGUMENT ........................................................................................................... 11

PRAYER .................................................................................................................. 25

CERTIFICATE OF SERVICE AND COMPLIANCE............................................. 26




                                                             2
                                     INDEX OF AUTHORITIES


CASES

Barfield v. State,
  416 S.W.3d 743 (Tex. App.—
  Houston [14th Dist.] 2013, no pet.)......................................................................14
Batiste v. State,
  AP-76,600, 2013 WL 2424134 (Tex. Crim. App. June 5, 2013)
  cert. denied, 134 S. Ct. 1000 (U.S. 2014) ..................................................... 14, 18

Carmouche v. State,
  10 S.W.3d 323 (Tex. Crim. App. 2000)................................................................19

Carter v. State,
  309 S.W.3d 31 (Tex. Crim. App. 2010)................................................... 14, 21, 22

Manzi v. State,
 88 S.W.3d 240 (Tex. Crim. App. 2002)................................................................20
Maxwell v. State,
 73 S.W.3d 278 (Tex. Crim. App. 2002)................................................................19
Missouri v. Seibert,
 542 U.S. 600 (2004) .............................................................................................14
Nguyen v. State,
  292 S.W.3d 671 (Tex. Crim. App. 2009) ..............................................................15

Oregon v. Elstad,
  470 U.S. 298 (1985) .............................................................................................21

People v. Delatorre,
  B230591, 2012 WL 909659 (Cal. Ct. App. Mar. 19, 2012) .................................23
Phillips v. Bramlett,
  288 S.W.3d 876 (Tex. 2009).................................................................................17

Resendez v. State,
  256 S.W.3d 315 (Tex. App.—
  Houston [14th Dist.] 2007)...................................................................................16

                                                         3
State v. Hughes,
  272 S.W.3d 246 (Mo. Ct. App. 2008) ..................................................................23

Vasquez v. State,
  397 S.W.3d 850 (Tex. App.—
  Houston [14th Dist.] March 28, 2013, pet. granted) ..............................................5

Vasquez v. State,
  411 S.W.3d 918 (Tex. Crim. App. 2013) ................................................................5
Vasquez v. State,
  453 S.W.3d 555 (Tex. App.—
  Houston [14th Dist.] 2014, pet. granted)............................................. 5, 14, 19, 22

STATUTES

TEX. CODE CRIM. PROC. art. 38.22 §3 (West 2010) .......................................... 15, 16

RULES

TEX. R. APP. P. 33.1(a) ....................................................................................... 17, 18




                                                          4
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 (CR – 159).        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 in a published case over a strong dissent. Vasquez v. State, 453 S.W.3d

555 (Tex. App.—Houston [14th Dist.] 2014, pet. granted). This Court granted

review.




                                        5
                             ISSUES PRESENTED

      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.




                           STATEMENT OF FACTS

      Walter Gallo was a security guard from Miami; but he was working in

Houston in 2010 (RR. III – 188-189). One of his friends from high school was

Luis Ollevera (RR. III – 191, 257-258). Another friend was Walter Martinez,

whom Gallo had met through his boss, Martinez’s mother (RR. III – 192-193).

The appellant was a very close friend of Martinez (RR. IV – 35).

      On April 1, 2010, Gallo and Ollevera wanted some marijuana, so Gallo

called Martinez 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).


                                        6
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 on Carvel Lane, 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). The

appellant was not sure whether he emptied the gun or not (St. Ex. 150) (RR. V –

52). The appellant or his accomplices then stole the marijuana and the Infiniti G35

(RR. III – 224, 269-270) (RR. V – 52, 55) (St. Ex. 35-38).

      Lobos sustained two gunshot wounds (St. Ex. 108) (RR. IV – 156). The first

bullet entered near the base of his skull, caused extensive disruption and

hemorrhaging to his brain, and exited through the top of his forehead (St. Ex. 108)

(RR. IV – 58, 157-160). The second bullet entered on the upper right side of his

chest, perforated his right clavicle, right lung, and left rib, and caused bleeding

around his heart (St. Ex. 108) (RR. IV – 163-165). One bullet also grazed his right

hand (St. Ex. 108) (RR. IV – 165). No drugs were detected in his system (St. Ex.

108). Nguyen suffered two gunshot wounds (St. Ex. 109). One was to the back of



                                         7
his head; the bullet sent a cone of bone fragments through his brain (St. Ex. 109)

(RR. IV – 138-142). The gun was fired anywhere from two inches to four feet

from Nguyen’s head (RR. IV – 142-144). The second bullet went through his right

shoulder blade, perforated his right lung, fractured his third rib, and was lodged in

his pericardial sac (St. Ex. 109) (RR. IV – 145-147). There was a small amount of

cocaine metabolite in Nguyen’s blood, but it would not have been affecting his

behavior at the time of the murder (RR. IV – 183).

      Joe Christie lived near the intersection of Baneway and Carvel Lane (RR. III

– 161). When he heard the gunshots, he rolled off his bed, grabbed his AR-15

assault rifle, and headed outside to provide assistance (RR. III – 162-163). When

he got outside, he saw a Toyota Scion parked at the end of the block with its hazard

lights on (RR. III – 164, 301-303). He also saw a man stumbling toward the bayou

(RR. III – 164). Christie jumped in his pickup truck and drove down to the Scion

(RR. III – 165). He noticed that the vehicle had been shot up with bullets and that

there were two dead bodies inside, so he drove back home to call 911 (RR. III –

165-166). On the way back to his house, Christie saw a number of people running

on the street and trying to hide underneath cars that were parked in driveways (RR.

III – 167-168). The people ran into Martinez’s house on Carvel Lane (RR. III –

168-169) (St. Ex. 6).    Christie saw there was an Infiniti G35 parked in the

driveway, and the garage door was open (RR. III – 169).



                                         8
      After the shooting, the appellant ran down along the bayou, pulled out the

gun, and threw it away (St. Ex. 150). He then allegedly took a turn on Boone

Street, ran to a gas station, and called a friend (St. Ex. 150). Meanwhile, Martinez

told Gallo to be at his house off of the bayou on Carvel Lane 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).

      Gallo and Ollevera entered Martinez’s house through the back door as

instructed, and 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). The appellant 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 G35 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 killings (RR. III – 272).

      Darren Chippi with the Houston Police Department was dispatched to the

scene after Christie called 911 (RR. III – 300). He saw that Nguyen and Lobos

were lying dead in the Scion and talked to Christie about what he had seen (RR. III

– 301-303). There was a lot of blood inside the Scion, and three marijuana bulbs



                                          9
were in the gearshift console (RR. III – 118, 122). The lead core of a bullet was

near the gearshift console, and a copper jacket fragment was in the back seat (RR.

III – 123). Christie pointed out Martinez’s house to the police (RR. III – 170-171).

      Gallo had been inside Martinez’s house for about ten minutes before 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 the same result (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). A police dog named Rocket was brought to the scene to look

for the murder weapon (RR. III – 145). He followed a trail down the bayou but

never found the gun (RR. III – 147-151) (RR. IV – 36-39) (St. Ex. 96-106).

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

an apartment complex on South Post Oak (RR. IV – 65, 81). They knocked on the

front door to the apartment, and a woman answered a few minutes later (RR. IV –

68). As the officers entered 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



                                         10
detective Richard Bolton in which he admitted to shooting both of the victims (St.

Ex. 150).




                      SUMMARY OF THE ARGUMENT

      The majority opinion below mistakenly 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.




                                  ARGUMENT

      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).



                                        11
The trial court carried the motion with the trial; when Detective Bolton was called

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.




                                          12
            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?

             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).

      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


                                         13
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, 453 S.W.3d

at 563 (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.

      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



                                         14
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

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


                                        15
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,

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



                                         16
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).

      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



                                          17
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. On

appeal, the appellant complained about the improper argument.            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

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);



                                         18
Phillips, 288 S.W.3d at 883; Vasquez, 453 S.W.3d at 577-580 (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 court of appeals cited Carmouche v. State, 10 S.W.3d 323 (Tex. Crim.

App. 2000), in support of its holding that there was “indisputable” evidence to the

contrary of the trial court’s findings. But the Carmouche court stated that “the

videotape presents indisputable visual evidence contradicting essential portions of

Williams’ testimony. In these narrow circumstances, we cannot blind ourselves to

the videotape evidence simply because Williams’ testimony may, by itself, be read

to support the Court of Appeals’ holding.” Carmouche, 10 S.W.3d at 332



                                          19
(emphasis added). In the present case, there was no indisputable visual evidence

contradicting essential portions of Bolton’s testimony. Therefore, the trial court

could not have abused its discretion in making the credibility findings based on its

observations of the witnesses’ credibility and demeanor. See Manzi v. State, 88

S.W.3d 240, 244 (Tex. Crim. App. 2002) (“Trial courts are the traditional finders

of fact, and their determinations of historical fact are entitled to deference.”).

      There is no need for this Court to “blind itself” to indisputable visual

evidence contradicting Bolton’s testimony that Padilla “read the defendant…his

legal warnings.” (RR. IV – 87). While Bolton’s later testimony may have been

inconsistent with the cited statement regarding Padilla’s warnings, it was not

indisputable visual evidence. Rather, it was merely additional testimony subject to

credibility determinations, and the trial court explicitly found that such testimony

was not credible (CR Supp – 23). Therefore, Carmouche did not allow the lower

court to brush aside the trial court’s findings that are based on the trial court’s

observation of the witnesses’ demeanor and its evaluation of their credibility.

      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



                                           20
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



                                          21
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, 453 S.W.3d at 572. 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.



                                         22
      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,



                                         23
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.




                                         24
                                     PRAYER

      It is respectfully requested that the opinion of the court of appeals should be

reversed and the conviction affirmed.


                                                DEVON ANDERSON
                                                District Attorney
                                                Harris County, Texas


                                                /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




                                         25
             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 5,581 words in it; 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                Lisa.McMinn@SPA.texas.gov
     Mark.kratovil@pdo.hctx.net


                                               /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: May 12, 2015




                                       26
