                           COURT OF APPEALS
                            SECOND DISTRICT OF TEXAS
                                 FORT WORTH


                                 NOS. 02-08-287-CR
                                     02-08-288-CR
                                     02-08-289-CR

JOSE MONTOYA                                                               APPELLANT

                                            V.

THE STATE OF TEXAS                                                                STATE

                                        ------------

            FROM THE 362ND DISTRICT COURT OF DENTON COUNTY

                                        ------------

                          MEMORANDUM OPINION 1

                                        ------------

                                    I. Introduction

      Appellant Jose Montoya appeals his convictions for two counts of aggravated

assault and one count of murder. In two points, Montoya contends that (1) the trial

court erred by failing to give proper jury instructions and (2) the trial court abused its

discretion by admitting a videotape recording of his oral confession. W e affirm.




      1
           See Tex. R. App. P. 47.4.
                      II. Factual and Procedural Background

A. The Incident

      In June 2007, Montoya lived in an apartment with Rosa Lopez, Rosa’s adult

daughter Claudia Escoto, and another man named Isaac Scott. 2 On the night of

June 2, Rosa and Claudia were in one of the apartment’s bedrooms, 3 discussing the

need to move out if Montoya would not leave, when they heard a knock at the

bedroom door. Rosa opened the door to see Montoya standing there.

      After a brief discussion, in which Rosa told Montoya that he needed to move

out, Montoya grabbed Rosa by the neck and hit her in the face multiple times. Rosa

fell back onto the bed and attempted to defend herself with her feet. Montoya then

pulled a knife from behind his back and stabbed Rosa a total of nine times on her

hands, arms, and back. In an effort to protect her mother, Claudia interceded and

Montoya stabbed her a total of seven times on her arms and stomach. Claudia

yelled for Isaac, who was asleep in the kitchen, to come and help. W hen Isaac

came into the room, he asked, “W hat’s happening, [Montoya]?” Montoya turned and

fatally stabbed Isaac in the chest. 4 As Montoya approached Rosa again, Rosa said,



      2
       Rosa’s son and Claudia’s eight-month-old daughter also lived in the
apartment.
      3
           Claudia’s eight-month-old daughter was also in the room.
      4
        Medical evidence showed that Isaac died from a stab wound that
penetrated five inches into his chest, through the fourth left rib, the top left lung, and
the aorta.

                                            2
“By God’s love, what have we done to you? Be fearful of God. Think about your

children. You are getting yourself into a big problem.” W hile Rosa was speaking,

Claudia managed to take the knife from Montoya. Montoya then left the apartment.

      Officers with the Carrollton Police Department apprehended Montoya later that

night, arrested him, and took him to jail. After taking Montoya’s fingerprints and

photograph, detention officers placed him into the jail’s detox center. About sixteen

hours later, Carrollton Police Detective Angela Lundy interviewed him, using an

interpreter. After Detective Lundy read Montoya his Miranda 5 rights, he confessed

on videotape to the details of the attacks.

      During the interview, Montoya confessed to the following. He and Claudia

were in a relationship that Rosa did not approve of. Rosa wanted Montoya to move

out of the apartment. On the night of the incident, he had drunk six or seven beers

and done “about 20“ in cocaine. 6 He had overheard Rosa and Claudia making plans

to get him out of the apartment and responded by taking a knife from the kitchen.

After being admitted into the bedroom, he had asked Rosa why she was “trying to

kick [him] out of the apartment.” Rosa responded that “that was what [he] deserved

. . . .” Rosa’s response made him angry, so he attacked her. He attacked Claudia

and Isaac when they tried to intervene. He did not have any problems with Isaac



      5
           Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602 (1966).
      6
         It is unclear from the record whether “about 20“ is referring to weight or
dollars.

                                          3
and only stabbed him because Isaac had tried to stop him from attacking Rosa and

Claudia. He “regret[ted] not having done what [he] wanted to do with whom [he]

wanted to instead [he] did it to the person who did not deserve it.” Finally, when

asked if he wanted to kill Rosa, Montoya responded, “The problem was with Rosa,

maybe not kill her, I don’t know.”

      The State charged Montoya with two counts of aggravated assault and one

count of murder.

B. Trial on the Merits

      At trial, in addition to Rosa and Claudia both testifying to the facts stated

above, Sergeant Joel Payne with the Carrollton Police Department testified that on

June 2, he responded to a dispatch call regarding an aggravated assault. On his

way to the location of the assault, he stopped a vehicle matching the description of

the suspect’s vehicle. W hen he ordered the driver, later identified as Montoya, to

step out of the car, Montoya refused, asking in English, “W hy are you stopping me?”

At some point, Montoya drove off, and Sergeant Payne pursued him in his patrol

unit. During the chase, Montoya’s vehicle collided with a wall. Montoya then took

off on foot. Police officers gave chase, apprehended Montoya, and placed him

under arrest.

      James Robertson, a detention officer for the Carrollton Police Department,

testified that he assisted in Montoya’s book in process. He stated that during intake,

Montoya smiled, laughed, and said, “I stabbed them, and I killed him” and “[s]he


                                          4
deserved this.” W hen asked if he spoke Spanish, Robertson responded, “No.”

W hen asked if he had any difficulty communicating in English with Montoya,

Robertson again responded, “No.”

      Detective Lundy testified that she spoke with Montoya about sixteen hours

after the offense occurred. She stated that she read Montoya his Miranda rights

before questioning him. W hen asked about her interaction with Montoya during

questioning, Detective Lundy responded:

            Q. Now, do you—did you make any promises to [] Montoya?

            A. No, I did not.

            Q. Did you threaten him in any way?

            A. No.

            Q. Did he ever ask to speak to an attorney?

            A. No, he didn’t.

            Q. Did he ever ask to terminate the interview in any fashion?

            A. No, he did not.

            Q. Do you believe that when you read him his rights that he
            fully understood them?

            A. Yes, I do.

            Q. And how did you make sure he understood them?

            A. W ell, I believe that Mr. Montoya spoke English; but just
            to make sure that he understood fully what was going on,
            because these charges were very serious, I provided an
            interpreter to interpret our interview.


                                       5
Detective Lundy also testified that the interpreter was “an experienced interpreter”

who interpreted for the local municipal court. Finally, Detective Lundy stated that

Montoya did not seem to be intoxicated or under the influence of drugs when she

questioned him.

      Outside the presence of the jury, Montoya objected to the admission of the

videotaped recording and transcription of his confession, claiming that his confession

was not voluntary because he had not waived his Miranda rights knowingly,

intelligently, and voluntarily. The trial court overruled Montoya’s objection, and it

allowed the videotape and transcript to be admitted as evidence.

      At the close of evidence, Montoya did not request a jury instruction on the

voluntariness of his confession, and none was given. A jury found Montoya guilty

on all three counts and assessed punishment at fifteen years’ confinement for each

count of aggravated assault and seventy-five years’ confinement for the murder.

The trial court sentenced Montoya accordingly.

C. Procedural History

      Montoya filed his notice of appeal and then filed an “Appellant’s Motion to

Abate for Trial Court’s Entry of Mandatory Findings of Fact and Conclusions of Law

Regarding Voluntariness of the Appellant’s Confession.” W e abated, and the trial

court entered the following findings of fact and conclusions of law:

            I find that the defendant was given all of his rights by Detective
      Lundy, per Texas Code of Criminal Procedure Article 38.22 Sec. 2 as
      required for custodial interrogation, and that the rights are contained on


                                          6
the video. These rights were given prior to any questions by Detective
Lundy. I find that the defendant understood these rights in a knowing
and intelligent way. I find the defendant appeared alert and aware on
the video. He did not appear intoxicated or confused in any way. I find
that the interview was taken approximately at 4 p.m. and over 16 hours
after the offense and arrest of the defendant. He communicated back
and forth with Detective Lundy, through the interpreter, a great deal
during the interview. There was never a moment where communication
broke down or that the defendant appeared confused. He answered
appropriately, in proper context, to all the questions he was asked;
indicating knowledge and understanding.

       I find that the defendant knowingly, intelligently, and voluntarily
waived the rights set out in Article 38.22. I find that after a full and
complete reading of his 38.22 rights, Detective Lundy sought a waiver
of these rights. Detective Lundy asked the defendant, through the
interpreter, “Are you willing to tell the detective what happened last
night?” I find that the defendant responded precisely, and directly to
that question: “Si,” translated to ‘yes’. I find that the defendant’s 1st
waiver answer was soft spoken and that Detective Lundy appeared to
not have heard the defendant. Therefore she asked again, through the
interpreter, for a waiver of his 38.22 rights, “Do you want to tell the
detective what happened?” I find that the defendant answered
precisely and directly to that request for a waiver of rights, “Si,”
translated as ‘yes’. I find these two questions legally sufficient for a
waiver request of 38.22 rights. I find that the defendant understood
these two questions as a request for a waiver of his rights. I find the
defendant then waived his rights.

         I find that the defendant’s statement to Detective Lundy, what
became State’s #102, was voluntarily made. From my viewing of the
video, I do not find the interview to be coercive in any fashion. The
interview was calm and without confrontation. All the voices were of
regular conversational tone. I find the body language of the parties in
the interview room to be inconsistent with tension, threats, or coercion.
No one yelled at the defendant. No one demanded answers from him.
The defendant was not threatened in any way. I find Detective Lundy
credible when she testified that no one made any promises to the
defendant, or threatened him in any way, and that the defendant did not
request an attorney, or request to terminate the interview. In the video
itself I find there are no threats, no promises, no request of counsel, or
request to terminate the interview. I find that the defendant waived his

                                    7
      rights of his own free will. His will was not overcome by the State,
      indeed the State made no effort to coerce the defendant in any way.
      I find that the defendant made his statement; State’s #102, freely and
      voluntarily, without threat or promise.

             From the totality of the circumstances, I find that the defendant’s
      statement, exhibit #102, was freely and voluntarily made. The
      statement was made after he received a complete and accurate
      reading of his rights under TXCCP 38.22, sec. 2, and the warnings are
      contained in the electronic recording, the video. I find that the
      defendant knowingly, intelligently, and voluntarily waived the rights set
      out in 38.22, before any questioning. I find that the defendant gave the
      statement of his own free will.

This appeal was reinstated following the entry of these findings and conclusions.

                                III. Jury Instruction

      In his first point, Montoya claims he suffered egregious harm because the trial

court did not instruct the jury under sections 6 and 7 of article 38.22 of the Texas

Code of Criminal Procedure as to the voluntariness of his statements to Detective

Lundy. In response, the State concedes that a section 6 general voluntariness

instruction should have been given but argues that Montoya failed to raise any

evidence that would have entitled him to a section 7 instruction. W e disagree with

the State’s concession as to the section 6 instruction but agree with its argument as

to the section 7 instruction.

A. Standard of Review

      Appellate review of error in a jury charge involves a two-step process. Abdnor

v. State, 871 S.W .2d 726, 731 (Tex. Crim. App. 1994); see also Sakil v. State, 287

S.W .3d 23, 25–26 (Tex. Crim. App. 2009). Initially, we must determine whether error


                                          8
occurred. If it did, we must then evaluate whether sufficient harm resulted from the

error to require reversal. Abdnor, 871 S.W .2d at 731–32.

B. Applicable Law

      A statement of an accused may be used as evidence against him if it appears

that it was freely and voluntarily made without compulsion or persuasion. Tex. Crim.

Proc. Ann. art. 38.21 (Vernon 2005). There are several theories that a defendant

may use to argue his statement was not freely and voluntarily made and thus may

not be used as evidence against him:           (1) article 38.22, section 6 (“general

voluntariness”); (2) Miranda as codified in Texas Code of Criminal Procedure article

38.22, sections 2 and 3; or (3) the due process clause. Oursbourn v. State, 259

S.W .3d 159, 169 (Tex. Crim. App. 2008). The theory of involuntariness determines

whether and what type of a jury instruction is appropriate. Id. Article 38.22 of the

code of criminal procedure governs the admissibility of an accused’s written and oral

statement that results from custodial interrogation. Id. at 171. However, section 6

of article 38.22 applies to both an accused’s custodial and noncustodial statements,

requiring that even noncustodial statements must be voluntary to be admitted. Id.

W hen a claim is raised under article 38.22, a “general” voluntariness instruction may

be appropriate.    Id. at 174.    The types of “general” instructions that may be

appropriate include an article 38.22, section 6 voluntariness instruction and an article

38.22, section 7 warnings instruction (regarding the warnings required by sections

2 and 3). Id. at 173. It is the defendant’s responsibility to delineate which type of


                                           9
“involuntariness” he is claiming so that the judge can determine the appropriate

instruction. Id. at 174.

        A trial court “has an absolute sua sponte duty to prepare a jury charge that

accurately sets out the law applicable to the specific offense charged.” Delgado v.

State, 235 S.W .3d 244, 249 (Tex. Crim. App. 2007); see Tex. Code Crim. Proc. Ann.

art. 36.14 (Vernon 2007).     W hen a statute, such as article 38.22, requires an

instruction under certain circumstances, that instruction is “law applicable to the

case,” and the trial court must instruct the jury on what is required under the statute.

Oursbourn, 259 S.W .3d at 180.

C. Discussion

        At trial, Montoya made the following objection, outside the presence of the

jury:

              [M]y objection is under 38.22, section 3(a)(2), wherein the
              oral statement is required to demonstrate that the accused
              knowingly, intelligently, and voluntarily waived any rights
              set out.

              W e hear the Miranda warning read to the—to Mr.
              Montoya. However, the question that he answers “yes” to
              is, “do you want to speak to me?” There is never any
              indication that [Montoya] directly understood, that he
              acknowledged that he understood Miranda and its
              consequences.
              W hen [Montoya] is asked initially, immediately after the
              Miranda warning is given, he does not answer, and the
              officer begins to have further discussion—discussions with
              him that I think can be taken almost as if it’s a—some sort
              of promise of leniency or something of that nature.”



                                          10
      1. Article 38.22, section 6

      Article 38.22, section 6 becomes “law applicable to a case” once a question

is raised and actually litigated as to the general voluntariness of an accused’s

statement; however, a factual dispute is not necessary. Id. at 175–76, 180. A

question of voluntariness is raised when a party notifies the trial court or the trial

court raises the issue on its own. Id. at 175. A claim under section 6 that an

accused’s statement was made involuntarily may include situations involving police

overreaching, youth, intoxication, illness or medication, mental incapacitation, or

other disabilities. Id. at 172–73. Although, these fact scenarios alone are not enough

to render a statement inadmissible, they are factors a jury is entitled to consider

when armed with a proper instruction. Id. at 173.

      The court of criminal appeals has stated that the sequence of events

contemplated by section 6 is as follows:

             (1) a party notifies the trial judge that there is an issue
             about the voluntariness of the confession (or the trial judge
             raises the issue on his own); (2) the trial judge holds a
             hearing outside the presence of the jury; (3) the trial judge
             decides whether the confession was voluntary; (4) if the
             trial judge decides that the confession was voluntary, it will
             be admitted, and a party may offer evidence before the
             jury suggesting that the confession was not in fact
             voluntary; (5) if such evidence is offered before the jury,
             the trial judge shall give the jury a voluntariness
             instruction.

Id. at 175 (emphasis added).




                                          11
      Here, we agree with Montoya’s assertion that he raised the issue of

voluntariness to the trial court when he objected, outside the presence of the jury,

to the voluntariness of his statement under article 38.22. 7 W e disagree, however,

with his conclusion that he offered evidence before the jury, thereby mandating the

requested jury charge instruction.

      Under article 38.22, there is no error in refusing to include a jury instruction

when there is no evidence before the jury to raise the issue. Miniel v. State, 831

S.W .2d 310, 316–17 (Tex. Crim. App. 1992); Hernandez v. State, 819 S.W .2d 806,

812 (Tex. Crim. App. 1991) (citing Wagner v. State, 687 S.W .2d 303, 307 (Tex.

Crim. App. 1984)), overruled on other grounds by Fuller v. State, 829 S.W .2d 191

(Tex. Crim. App. 1992). Some evidence must have been presented to the jury that

the defendant’s confession was not given voluntarily. Alvarado v. State, 912 S.W .2d

199, 211 n.9 (Tex. Crim. App. 1995); Hernandez, 819 S.W .2d at 812 (citing Brooks

v. State, 567 S.W .2d 2 (Tex. Crim. App. 1978)).

      W e note that Montoya does not discuss, or provide a citation to, any evidence

before the jury showing that the issue of voluntariness was actually litigated.

Instead, he cites only to the arguments that he raised outside the presence of the



      7
         At trial, Montoya objected to the voluntariness of his statement on two
grounds—failure to acknowledge his understanding of Miranda and Detective
Lundy’s alleged promise of leniency. Thus, to the extent Montoya asserts that his
statement was involuntary because “he was still under the influence of cocaine
and/or alcohol at the time of his interrogation,” he has failed to preserve this issue
for review. See Tex. R. App. P. 33.1(a)

                                         12
jury. Upon independent review of the record, we cannot find where Montoya testified

before the jury, called witnesses, or cross-examined the State’s witnesses on the

issue of voluntariness—that is, there is no testimony pertaining to Detective Lundy’s

alleged promise of leniency. 8      In fact, the only testimony pertaining to the

voluntariness of Montoya’s statement came during the State’s direct examination of

Detective Lundy. See Brooks, 567 S.W .2d at 3 (holding that evidence presented by

the State in anticipation of an attack upon the voluntariness of a confession does not

put voluntariness in issue).      Thus, because the parties did not litigate the

voluntariness of Montoya’s statement before the jury, the trial court did not err by not

including a section 6 instruction sua sponte in the jury charge. See Hernandez, 819

S.W .2d at 812–13 (holding appellant was not entitled to a section 6 instruction

because he failed to present evidence to the jury that his statements were not given

voluntarily); see also Aldaba v. State, No. 14-08-00417-CR, 2009 W L 1057685, at

*3 (Tex. App.—Houston [14th Dist.] Apr. 16, 2009, pet. ref’d) (concluding trial court

was not on notice that a section 6 instruction might be required where the parties did

not litigate the voluntariness of appellant’s statements in some manner).




      8
        Although section 6 does not require that there be a fact dispute, it does
require that evidence pertaining to the issue of voluntariness be submitted to the
jury. See Oursbourn, 259 S.W .3d at 175. How else is the jury to know that there is
a voluntariness issue if, as in this case, it does not receive any evidence as to the
alleged promise of leniency?

                                          13
      2. Article 38.22, section 7

      Article 38.22, section 7 becomes “law applicable to a case” when the evidence

raises an issue regarding (1) law enforcement’s compliance with the statutory

warnings set out in Texas Code of Criminal Procedure article 38.22, sections 2–3

and (2) the voluntariness of a defendant’s waiver of his rights. Oursbourn, 259

S.W .3d at 176. An issue is “raised by the evidence” if there is a genuine factual

dispute. Id. A genuine factual dispute occurs when the defendant offers evidence

that would create a reasonable doubt as to a specific factual matter that relates to

compliance with the statutory warnings of sections 2 or 3 of article 38.22 and is,

therefore, essential to the voluntariness of the statement. See id. at 177. W hen

there is no disputed factual issue, the legality of compliance with the statutory

warnings regarding the statement is determined by the trial court alone, and a

section 7 instruction is not required. Id. at 177–78.

      Section 3 of article 38.22 provides that no oral statement of an accused made

as a result of custodial interrogation shall be admissible against the accused in a

criminal proceeding unless (1) the statement was recorded and (2) prior to the

statement but during the recording, the accused was warned of his rights and

knowingly, intelligently, and voluntarily waived those rights. Tex. Code Crim. Proc.

Ann. art. 38.22, § 3 (Vernon 2005). The warning must inform a defendant of the

following rights:




                                          14
       (1) [H]e has the right to remain silent and not make any statement at all
       and that any statement he makes may be used against him at his trial;

       (2) any statement he makes may be used as evidence against him in
       court;

       (3) he has the right to have a lawyer present to advise him prior to and
       during any questioning;

       (4) if he is unable to employ a lawyer, he has the right to have a lawyer
       appointed to advise him prior to and during any questioning; and

       (5) he has the right to terminate the interview at any time[.]

Id. art. 38.22, § 2.

       Here, although Montoya’s statement was clearly made as a result of a

custodial interrogation, he cites no facts to support his argument that the trial court

should have included a section 7 instruction. Rather, Montoya states only that the

“issue was raised.” After an independent review, however, we can find no evidence

disputing Detective Lundy’s compliance with the statutory warnings set out in article

38.22, sections 2 and 3 or the voluntariness of Montoya’s waiver of those rights.

Thus, the trial court did not err by failing to include a section 7 instruction sua sponte

in the jury charge.

D. Conclusion

       Because Montoya was not entitled to instructions under sections 6 and 7 of

article 38.22, the trial court did not err by failing to submit a jury charge on the

question of voluntariness. See White v. State, 779 S.W .2d 809, 827 (Tex. Crim.

App. 1989) (concluding appellant was not entitled to section 6 instruction); see also


                                           15
Brownlee v. State, 944 S.W .2d 463, 467–68 (Tex. App.—Houston [14th Dist.] 1997,

pet. ref’d) (concluding no error occurred in failing to submit a section 7 instruction on

voluntariness). Accordingly, we overrule Montoya’s first point.

                            IV. Admission of Evidence

      In his second point, Montoya asserts that the trial court abused its discretion

by admitting the videotape of his oral confession after he timely objected on the

ground that the confession had been obtained in violation of article 38.22 of the code

of criminal procedure.

A. Standard of Review

      An appellate court may not disturb a trial court’s evidentiary ruling absent an

abuse of discretion. Winegarner v. State, 235 S.W .3d 787, 790 (Tex. Crim. App.

2007). In other words, as long as the trial court’s decision was within the zone of

reasonable disagreement and was correct under any theory of law applicable to the

case, it must be upheld. Id. (citing Montgomery v. State, 810 S.W .2d 372, 391 (Tex.

Crim. App. 1990) (op. on reh’g)). This is so because trial courts are usually in the

best position to make the call on whether certain evidence should be admitted or

excluded. Id.

B. Applicable Law

      As discussed above, under article 38.22, section 3, an oral statement resulting

from a custodial interrogation is admissible only if an officer warns the defendant of

his Miranda rights and the accused executes a knowing, intelligent, and voluntary


                                           16
waiver of those rights. See Tex. Code Crim. Proc. Ann. art. 38.22, § 3; see also

Penry v. State, 903 S.W .2d 715, 744 n.24 (Tex. Crim. App. 1995) (stating that Texas

statutory warnings codified in article 38.22 comply with Miranda).

        To determine whether an accused effectively executed a valid waiver of rights,

we must decide whether the waiver was a “product of a free and deliberate choice

rather than intimidation, coercion, or deception.” Moran v. Burbine, 475 U.S. 412,

421, 106 S. Ct. 1135, 1141 (1986); Ripkowski v. State, 61 S.W .3d 378, 384 (Tex.

Crim. App. 2001). W e must also determine whether the waiver was given “with a full

awareness of both the nature of the right being abandoned and the consequences

of the decision to abandon it.” Moran, 475 U.S. at 421, 106 S. Ct. at 1141;

Ripkowski, 61 S.W .3d at 384. An express waiver is not necessary, and the trial court

may find facts and evidence sufficient to support an inference of waiver. See Rocha

v. State, 16 S.W .3d 1, 12 (Tex. Crim. App. 2000). W e consider the totality of the

circumstances when determining whether an accused effectively waived his rights

and thereby made a statement voluntarily. Moran, 475 U.S. at 421, 106 S. Ct. at

1141.

C. Discussion




        The pertinent portions of Detective Lundy’s interview, along with what the

interpreter said translated into English, are as follows:




                                          17
Lundy: Before we talk I need to read you your Miranda
warning.

Interpreter: Before you talk she needs to tell you your rights.

Lundy: OK. Says you have the right to remain silent and
not make any statement.

Interpreter: Says you have the right to remain quiet and
not make any statement.

Lundy: And any statement you make may be used
against you at your trial.

Interpreter: And if you make a statement it can be used
against you as evidence in a trial.

Lundy: Any statement you make may be used as
evidence against you in court.

Interpreter: Any statement you make can be [sic] as
evidence to go to court.

Lundy: You have the right to have a lawyer present to
advise you

Interpreter: You have the right to hire an attorney to
advise you

Lundy: prior to and during any questioning.

Interpreter: prior to and during any interview or
questioning.

Lundy: If you’re unable to employ a lawyer

Interpreter: If you’re unable to employ a lawyer

Lundy: you have the right to have a lawyer appointed to
advise you



                           18
Interpreter: you have the right to have a lawyer assigned
to advise you.

Lundy: prior to and during any questioning

Interpreter:    prior to and during any interview or
questioning

Lundy: and you have the right to terminate this interview
at any time.

Interpreter: and you also have the right to stop this
interview at any moment.

Lundy: Are you willing to talk to me?

Interpreter: Are you willing to talk to the detective?

Lundy: I just want to hear your side of the story. I know
what happened last night. I just want to hear what you
have to say about that ‘cause I know there’s got to be an
explanation for you getting so upset and so angry last
night.

Interpreter: The detective is saying that she already
knows what happened last night. She only wants to hear
your side of the story. She understands that maybe
something happened to you that bothered you very much.

Lundy: I want to hear your side of the story.

Interpreter: She only wants to hear your side of the story.

Lundy: Are you willing to tell me what happened?

Interpreter: Are you willing to tell the detective what
happened last night?

Lundy: Rosa and Claudia, they’re going to be fine.

Interpreter: Rosa [and] Claudia are going to be fine.

                            19
             [Montoya:] Yes.

             Lundy: But you know that Isaac . . . died last night.

             Interpreter: But you know that Isaac . . . um . . . died last
             night.

             Lundy: The baby, the baby is fine.

             Interpreter: The baby is fine.

             Lundy: So, can you tell me what happened?

             Interpreter:    Do you want to tell the detective what
             happened?

             [Montoya:] Yes.

      Montoya claims that, because he “never gave any verbal or nonverbal

indication that he either understood [his] rights or wished to waive them,” he did not

intelligently, knowingly, and voluntarily waive those rights. [Emphasis in original.] In

addition, Montoya asserts that the interpreter’s imprecise translations led to

miscommunications regarding his rights. Because Montoya does not challenge the

validity of his waiver on the ground that it was the product of intimidation, coercion,

or deception, we need only determine whether Montoya’s waiver was given “with a

full awareness of both the nature of the right being abandoned and the

consequences of the decision to abandon it.” Moran, 475 U.S. at 421, 106 S. Ct. at

1141; Ripkowski, 61 S.W .3d at 384.

      1. Warnings: Fully Effective Equivalent




                                          20
      First, we note that warnings do not have to be given verbatim to be valid. See

Bible v. State, 162 S.W .3d 234, 240 (Tex. Crim. App. 2005) (explaining that a

warning is sufficient if it is the “fully effective equivalent” of the warning outlined in

article 38.22, section 2). Montoya claims that the interpreter’s translation of “read

you your Miranda warning” into “she needs to tell you your rights,” among other

translations, led to miscommunications of his rights. This particular statement by

Detective Lundy, however, is not part of the warning recited in section 2 of article

38.22 and, therefore, is not required to meet the “fully effective equivalent” standard.

Moreover, in analyzing the portion of the interview that does contain the warning

recited in section 2 of article 38.22, we conclude that the interpreter’s word choices

do not convey a different meaning from those used by Detective Lundy or the

statute. See Bennett v. State, 742 S.W .2d 664, 677 (Tex. Crim. App. 1987), vacated

on other grounds, 486 U.S. 1051 (1988) (concluding that the substitution of the word

“trial” for “court” and the word “may” for “can” in the warning given to appellant did

not dilute the meaning or import of the warning recited in section 2 of article 38.22).

Thus, the interpreter’s translation of Montoya’s rights are the fully effective equivalent

of those stated in the statute.

      2. Waiver of Rights

      W e next address the validity of Montoya’s waiver. The record shows that no

express waiver of Montoya’s rights appears on the recording. However, “the law

does not require that the recording reflect an express waiver of [] rights.” Rocha, 16


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S.W .3d at 12 (citing Etheridge v. State, 903 S.W .2d 1, 16 (Tex. Crim. App. 1994),

cert. denied, 516 U.S. 920 (1995)). A waiver of rights may be inferred from the

actions and words of the person interrogated. State v. Oliver, 29 S.W .3d 190,

191–92 (Tex. App.—San Antonio 2000, pet. ref’d) (citing Barefield v. State, 784

S.W .2d 38, 40–41 (Tex. Crim. App. 1989), overruled on other grounds by

Zimmerman v. State, 860 S.W .2d 89 (Tex. Crim. App. 1993)).

      Montoya argues that in the cases in which courts have held that an express

waiver is unnecessary, there was, however, at least evidence that the defendant

acknowledged his understanding of his rights, which is not the case here. See, e.g.,

Cubas v. State, No. AP-74953, 2005 W L 3956312, at *3 (Tex. Crim. App. Apr. 12,

2006) (not designated for publication) (reasoning voluntary waiver existed when

defendant indicated that he understood his rights and declined to ask any questions

about them); Alvarez v. State, No. 02-07-00457-CR, 2009 W L 112783, at *3 (Tex.

App.—Fort W orth Jan. 15, 2009, no pet.) (mem. op., not designated for publication)

(concluding voluntary waiver existed when record demonstrated that the defendant

indicated understanding of the warnings by nodding twice during the warnings and

by responding “yes, sir” when informed that by answering, he would be doing so of

his own free will); Solis-Reyes v. State, No. 13-07-00322-CR, 2008 W L 1822636, at

*4 (Tex. App.—Corpus Christi Apr. 24, 2008, no pet.) (mem. op., not designated for

publication) (declaring voluntary waiver when the defendant was read the warnings

in Spanish and indicated he understood the warnings). Montoya seems to argue


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that, because he did not expressly waive his rights or expressly acknowledge that

he understood his rights, his waiver is invalid. W e disagree.

      The test for determining the validity of a waiver is not whether the defendant

expressly waived his rights or expressly acknowledged his understanding of his

rights; instead, the test is whether, based on the totality of the circumstances, waiver

was given “with a full awareness of both the nature of the right being abandoned and

the consequences of the decision to abandon it.” See Moran, 475 U.S. at 421, 106

S. Ct. at 1141.

      Our review of the video indicates that immediately after a full and complete

reading of his 38.22 rights, Detective Lundy sought a waiver of these rights by asking

Montoya, “Are you willing to tell [me] what happened last night?” Although Montoya

did not respond until after the second request, he did respond “yes” and appears to

have willingly discussed the events with Detective Lundy.

      Moreover, the trial court found, and we agree, that Montoya “communicated

back and forth with Detective Lundy, through the interpreter, a great deal during the

interview. There was never a moment where communication broke down or [where

Montoya] appeared confused. He answered appropriately, in proper context, to all

the questions he was asked; indicating knowledge and understanding.” One could

reasonably infer that if Montoya understood the questions being asked of him during

the interview, he also understood the reading of his rights and the consequences of

abandoning those rights—namely, that he had the right to remain silent and that


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anything he said could be used against him at his trial. Thus, based on the totality

of the circumstances, the trial court did not abuse its discretion by finding that

Montoya’s waiver was given with a full awareness of both the nature of the right

being abandoned and the consequences of the decision to abandon it.

D. Conclusion

      Because the interpreter’s translation of Montoya’s rights is the fully effective

equivalent of those stated in the statute and because Montoya intelligently,

knowingly, and voluntarily waived his rights, we hold that the trial court did not abuse

its discretion by admitting the videotape of Montoya’s confession. Accordingly, we

overrule Montoya’s second point.

                                   V. Conclusion

      Having overruled both of Montoya’s points, we affirm the trial court’s judgment.




                                                      BOB MCCOY
                                                      JUSTICE

PANEL: LIVINGSTON, C.J.; DAUPHINOT and MCCOY, JJ.

DAUPHINOT, J. concurs in part and dissents in part without opinion.

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

DELIVERED: April 22, 2010




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