












 
 
 
 
 
 
                                      COURT
OF APPEALS
                                       SECOND
DISTRICT OF TEXAS
                                                   FORT
WORTH
 
 
                                        NO.
2-07-457-CR
 
 
JOHN ALVAREZ                                                                  APPELLANT
 
                                                   V.
 
THE STATE OF TEXAS                                                                STATE
 
                                              ------------
 
              FROM
THE 355TH DISTRICT COURT OF HOOD COUNTY
 
                                              ------------
 
                                MEMORANDUM
OPINION[1]
                                                    
                                              ------------
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 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.  Factual and Procedural Background
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. 




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, AGo 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 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.  Proper Miranda Warnings Were Given
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. 




Texas Code of Criminal
Procedure article 38.21 states that A[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. 
 




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 A[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.
 




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, AYes, 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 nonverballyCby noddingCand verballyCby saying, AYes, sir@Cthat he understood the Miranda warnings that Trooper Hall was
giving him.




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 383B84 (holding that trial court was entitled to believe State=s witnessesCofficers 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 voluntarilyCrather 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.CAustin 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.CCorpus Christi 2001, pet. ref=d) (recognizing that communication between officers and appellant
solely by Ahand
gestures@ was insufficient to show understanding).  We therefore overrule Alvarez=s first point.




IV.  Defense Timely Provided With Videotape
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:




 
. . . .
 
(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 Aprovide@ in section
3(a)(5) means to Amake
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 Aproceeding@ in the
case.  Alvarez, however, did not object
on November 5, 2007, during voir dire. 
Instead, Alvarez waited until November 8 to complain of the State=s failure to comply with article 38.22, section 3(a)(5), which raises
a preservation concern.  See id.
at 516B17 (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 trialCfour months after pretrial hearingCto 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, ABut
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 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, AWell,
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, AHere=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. [RR3:2B5] 
 




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 Ain the district attorney=s office as evidence.@   These facts Can investigative report referencing a taped recording and the location
of the recording coupled with an Aopen file policy@Chave 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.CDallas 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.CWaco 2005, no pet.); Tinker v. State, 148 S.W.3d 666, 672 (Tex.
App.CHouston [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.




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.  Conclusion
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




[1]See Tex.
R. App. P. 47.4.


[2]Trooper
Hall further testified that Alvarez=s hands were shaking Apretty
bad@ when
he handed over his license, that the pulse in the side of his neck was obvious,
that he was looking around Aquite a bit,@ and
that he was not able to stand still in one place. 


