                                                                                         ACCEPTED
                                                                                      13-14-512-CR
                                                                      THIRTEENTH COURT OF APPEALS
                                                                            CORPUS CHRISTI, TEXAS
                                                                                2/2/2015 7:13:40 PM
                                                                                  DORIAN RAMIREZ
                                                                                             CLERK

                               No. 13-14-512-CR

                IN THE THIRTEENTH COURT OF APPEALS FILED IN
                                            13th COURT OF APPEALS
                CORPUS CHRISTI AND EDINBURG,  TEXAS
                                         CORPUS  CHRISTI/EDINBURG, TEXAS
                                                      2/2/2015 7:13:40 PM
CHRISTOPHER MARTINEZ, Appellant                        DORIAN E. RAMIREZ
                                                              Clerk

vs.

STATE OF TEXAS, Appellee

     Appeal from Cause No. 14-CR-1676-F in the 214th Judicial District Court,
Nueces County, Texas, the Hon. Jose Longoria presiding


                             APPELLANT’S BRIEF


Respectfully submitted by:

Donald B. Edwards
State Bar No. 06469050
Law Office of Donald B. Edwards
P.O. Box 3302
Corpus Christi, TX 78463-3302
(361) 887-7007
(361) 887-7009 (fax)




            Appellant requests oral argument. Tex. R. App. P. 39.7
                                       List of Parties

Appellant

Mr. Christopher Martinez
TDCJ # 1952460
Lopez State Jail
1203 El Cibolo Road
Edinburg, TX 78542

Appellant’s Trial Counsel                           Appellant’s Appellate Counsel

Ms. Cassandra Bonilla1                              Mr. Donald B. Edwards
Bonilla & Chapa                                     Law Office of Donald B. Edwards
2727 Morgan St.                                     P.O. Box 3302
Corpus Christi, TX 78405                            Corpus Christi, TX 78463-3302


Appellee State of Texas Trial and Appellate Counsel

Ms. Ashley Earl (trial)
Mr. Matthew Manning (trial)
Mr. Doug Norman (appellate)
Asst. Nueces County District Attorneys
901 Leopard St.
Corpus Christi, TX 78401




       1
        Ms. Bonilla has since taken a position in the Nueces County District Attorney’s office
and may be contacted at the address shown above for the State’s attorneys.
                                                 Table of Contents


List of Parties.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

Index of Authorities.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

Statement of the Case. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

Issues Presented.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

Statement of Facts. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

Summary of the Argument. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

Argument. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
     I. The evidence was insufficient to support the conviction.. . . . . . . . . . . . 11
     II. Trial counsel was ineffective for failing to suppress statements taken
             through custodial interrogation.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
             A. Standards regarding counsel ineffectiveness claims. . . . . . . . . . 14
             B. Standards regarding custodial interrogation.. . . . . . . . . . . . . . . . 15
             C. Mr. Martinez was in custody.. . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
             D. Mr. Martinez was subject to interrogation for purposes of art.
                       38.22 and Miranda. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
             E. Counsel was ineffective for failing to move for the suppression of
                       the statements. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19

Prayer. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22

Certificate of Compliance and Service. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
                                          Index of Authorities

Cases

Barfield v. State, 63 S.W.3d 446 (Tex. Crim. App. 2001). . . . . . . . . . . . . . . . . . . 12

Clayton v. State, 235 S.W.3d 772 (Tex. Crim. App. 2007). . . . . . . . . . . . . . . . . . 12

Ex parte Brown, 205 S.W.3d 538 (Tex. Crim. App. 2006). . . . . . . . . . . . . . . . . . . . . . 15

Gardner v. State, 306 S.W.3d 274 (Tex. Crim. App. 2009) . . . . . . . . . . . . . . . . . 17

Herrera v. State, 241 S.W.3d 520 (Tex. Crim. App. 2007). . . . . . . . . . . . . . . 16, 18

Hooper v. State, 214 S.W.3d 9 (Tex. Crim. App. 2007). . . . . . . . . . . . . . . . . . . . . 11, 12

Jackson v. Virginia, 443 U.S. 307 (1979). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

Jones v. State, 119 S.W.3d 766 (Tex. Crim. App. 2003. . . . . . . . . . . . . . . . . . . . . 16

Jones v. State, 795 S.W.2d 171 (Tex. Crim. App. 1990). . . . . . . . . . . . . . . . . . . . 19

King v. State, 895 S.W.2d 701 (Tex. Crim. App. 1995). . . . . . . . . . . . . . . . . . . . . 11

Lopez v. State, 343 S.W.3d 137 (Tex. Crim. App. 2011) . . . . . . . . . . . . . . . . . . . . . . . 14

Martinez v. State, 313 S.W.3d 358 (Tex. App.-Houston [1st Dist.] 2009, pet. ref'd).. . . 15

McMann v. Richardson, 397 U.S. 759, 90 S. Ct. 1441, 1449 (1970). . . . . . . . . . . . . . . 14

Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). . . 16, 17

Mosley v. State, 983 S.W.2d 249 (Tex. Crim. App. 1998). . . . . . . . . . . . . . . . . . . 11

Munoz v. State, 853 S.W.2d 558 (Tex. Crim. App. 1993). . . . . . . . . . . . . . . . . . . 13

Murray v. State, 864 S.W.2d 111 (Tex. App. — Texarkana 1993, pet. ref'd). . . . 18

Powell v. Alabama, 287 U.S. 45, 53 S. Ct. 55 (1932). . . . . . . . . . . . . . . . . . . . . . . . . . 14
Powell v. State, 194 S.W.3d 503 (Tex. Crim. App. 2006). . . . . . . . . . . . . . . . . . . 12

Randon v. State, 178 S.W.3d 95 (Tex. App.-Houston [1st Dist.] 2005, no pet.). . . . . . . 15

Rhode Island v. Innis, 446 U.S. 291, 100 S. Ct. 1682, 64 L. Ed. 2d 297 (1980)
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18

Robertson v. State, 187 S.W.3d 475 (Tex. Crim. App. 2006). . . . . . . . . . . . . . . . . . . . 14

Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 2064 (1984). . . . . . . . . . 14, 15

Thompson v. State, 9 S.W.3d 808 (Tex. Crim. App. 1999). . . . . . . . . . . . . . . . . . . . . . 15

United States v. Abdulla, 294 F.3d 830 (7th Cir. 2002). . . . . . . . . . . . . . . . . . . . . 19

Williams v. State, 235 S.W.3d 742 (Tex. Crim. App. 2007).. . . . . . . . . . . . . . . . . 12

Wood v. State, 260 S.W.3d 146 (Tex. App.-Houston [1st Dist.] 2008, no pet.). . . . . . . 15

Woods v. State, 152 S.W.3d 105 (Tex. Crim. App. 2004). . . . . . . . . . . . . . . . . . . 16



Statutes

TEX. CODE CRIM. PROC. ANN. art. 38.22. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
                               Statement of the Case

      Christopher Martinez appeals from the judgment of the trial court for 15

months’ confinement in the state jail after a jury found him guilty of criminal mischief

causing damage in excess of $1,500.00. CR 68. The judgment was announced in

open court on August 26, 2014, in State of Texas vs. Christopher Martinez, Cause No.

14-CR-1676-F, in the 214th Judicial District Court, Nueces County, Texas, the

Honorable Jose Longoria presiding. RR Vol. 5, pp. 9-10.

      Mr. Martinez timely appealed on September 3, 2014. CR 66.



                                  Issues Presented

      Whether the evidence was sufficient to support the jury’s verdict.

      Whether counsel was ineffective for not seeking suppression of statements

made by defendant while in custody and not having been read his rights as required

by the Texas Code of Criminal Procedure, the Texas Constitution, or the Fifth

Amendment of the United States Constitution.
                                Statement of Facts

      Gabriel Leal was working as a bouncer at the El Dorado club on SPID near

Weber in Corpus Christi, Nueces County, Texas, on the night of May 11, 2014. RR

Vol. 3, p. 14. He asked two patrons to leave because they had been in verbal

altercations with other patrons. RR Vol. 3, p. 14-15. He did not know either man he

asked to leave, but he identified the defendant as one of the men. RR Vol. 3, p. 15.

One of the men said he had a gun in his car and would return. RR Vol. 3, p. 16. Mr.

Leal saw the two patrons to the door, then lost visual contact with them, because he

went back in to call police to report the possibility of a confrontation with an armed

patron. RR Vol. 3, p. 16.

      After two minutes to make the call, Mr. Leal went outside and looked into the

parking lot to see if he could locate the two men he ejected. Not seeing them, he

began to search the through the parking lot. RR Vol. 3, p. 18. He didn’t see them

among the cars in the parking lot, so he went to the sidewalk and looked down the

street. RR Vol. 3, p. 16. About 100 yards away he saw someone wearing black

clothes kneeling at a Hummer making swinging motions. RR Vol. 3, p. 22. That

person got into a white Ford Mustang and drove past Mr. Leal who recognized the

two people he ordered to leave El Dorado. RR Vol. 3 p. 19.

      Juanita Rangel testified she walked Appellant and his brother to the door and

saw them drive away without causing any damage to any vehicles. RR Vol. 4, pp. 6-
7. She watched them because she saw a gang of guys out in the parking lot. RR Vol.

4, p. 7. She told Mr. Leal, who was among the group in the parking lot, to just let

Appellant and his brother go. RR Vol. 4, p. 9. She knew Appellant didn’t return

because she got a phone call to join them at Entourage but didn’t go since she was at

a family gathering at El Dorado. RR Vol. 4, p. 10. There were no police at El Dorado

to take her statement that night. RR Vol. 4, p. 12. However, Leal said an officer

arrived and took a statement, including a description of the vehicle and the suspects.

RR Vol. 3, p. 20.

      Officer Casey Henry responded, took Mr. Leal’s statement, and sent bulletin

out to police to be on the lookout for a white Ford Mustang with license plate

beginning TZK or TKZ. RR Vol. 3, pp. 25-26. Police were in the vicinity

responding to a different disturbance. Officer Crystal Rodriguez saw a white Ford

Mustang pulling out of a parking lot in front of her. RR Vol. 3, ppl 39-40. Her

partner, Jerry Lockhart intercepted the Mustang, and six officers confronted the driver

and passenger. RR Vol. 3, p. 45; SX 6 JerryL@20140511002520. They ordered Mr.

Martinez out of the passenger seat and to put his hands on the top of the car. No one

read either suspect any rights. SX6 JerryL@20140511002520 (0:00–6:00).

       The officers searched Mr. Martinez and found a knife which he said he used

at work at the U&I. He was furthered questioned about what he was doing, whether

he had been at the El Dorado, what happened at the El Dorado, why they were leaving
the Entourage, why the left the El Dorado. During this interrogation he was

confronted by multiple police officers, handcuffed, and taken to the police vehicle.

SX 6, JerryL@20140500002520 (1:00-6:00).

      Ten or fifteen minutes after seeing suspects leave in the Ford Mustang, Gabriel

Leal identified them as the people he saw near the Hummer and who drove past him.

RR Vol. 3, p. 21, l.1; p. 32.

      Ruben Barrera testified he owned the vehicle. RR Vol. 3, p. 53. He said he

told his tires were slashed on May 11, 2014. He said the vehicle suffered a dent in

the window seal that was not there before he entered the El Dorado Club that night.

RR Vol. 3, p. 54. However, he did not state the tires were not cut before he went into

the club. He said the state’s photos accurately represented the condition of the

vehicle that night. RR Vol. 3, p. 55. He did not see the tires being cut. RR Vol. 3,

p. 58. He did not see defendant in the club, did not have an altercation with him, and

never met him before. RR Vol. 3, p. 58. The damage was over $3000 with his

insurance deductible being $495. RR Vol. 3, p. 56-57. An insurance adjuster

testified the tire repair was $493.44 for each tire. RR Vol. 3, p. 63.

      Appellant was indicted for criminal mischief in excess of $1,500.00. CR 5.

The jury found him guilty on August 26, 2014. CR 64. Defendant elected for

punishment to be determined by the court. CR 45. The trial court assessed

punishment at 15 months’ confinement to be amended to 13 months if restitution of
$495 was made to the victim within 30 days of the court’s order. RR Vol. 5, pp. 9-10.



                            Summary of the Argument

      The jury could not rationally find all the elements of the offense beyond a

reasonable doubt. There was no testimony or evidence regarding the condition of the

tires on the vehicle before a witness saw someone next to it. Even assuming the

witness identification of the defendant was possible, the witness was a hundred yards

away and unable to see if the person had anything in his hand or cut the tires. There

was no evidence of any residue on the knife found on Appellant or testimony

concerning whether it could have caused the damage to the tires. There was no

motive shown from which it could be inferred that Appellant intended to cause

damage to the victim’s property.

      Appellant was interrogated while in custody without being explained his rights

to counsel, to refuse to answer questions, to terminate interviews, and without being

told any statement would be used against him in court. The entire interrogation was

included in the evidence to be given to the jury, and Appellant’s statements

concerning ownership of the knife found on his person was emphasized by counsel

for the State in closing argument. It was below the standard of performance for

defense counsel to not move to suppress the statements and object to their use in trial.

Such failure was prejudicial to Appellant.
                                      Argument

I. The evidence was insufficient to support the conviction.

      When deciding whether evidence is sufficient to support a conviction, a

reviewing court must assess all the evidence in the light most favorable to the verdict

to determine whether any rational trier of fact could find the essential elements of the

crime as charged in the indictment beyond a reasonable doubt. Jackson v. Virginia,

443 U.S. 307, 318-19 (1979); Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim. App.

2007). This standard of review applies to cases involving both direct and

circumstantial evidence. King v. State, 895 S.W.2d 701, 703 (Tex. Crim. App. 1995).

Although the court of appeals is to consider all evidence presented at trial, it may not

re-weigh the evidence and substitute its judgment for that of the jury. King v. State,

29 S.W.3d 556, 562 (Tex. Crim. App. 2000). The jury is the exclusive judge of the

credibility of witnesses and of the weight to be given their testimony, and it is the

exclusive province of the jury to reconcile conflicts in the evidence. Mosley v. State,

983 S.W.2d 249, 254 (Tex. Crim. App. 1998). Evidence is insufficient under this

standard in four circumstances: (1) the record contains no evidence probative of an

element of the offense; (2) the record contains a mere "modicum" of evidence

probative of an element of the offense; (3) the evidence conclusively establishes a

reasonable doubt; and (4) the acts alleged do not constitute the criminal offense

charged. Jackson, 443 U.S. at 314, 318 n. 11, 320, 99 S.Ct. at 2786, 2789 & n. 11;
Williams v. State, 235 S.W.3d 742, 750 (Tex. Crim. App. 2007).

      In viewing the record, direct and circumstantial evidence are treated equally;

circumstantial evidence is as probative as direct evidence in establishing the guilt of

an actor, and circumstantial evidence alone can be sufficient to establish guilt.

Clayton v. State, 235 S.W.3d 772, 778 (Tex. Crim. App. 2007). In determining the

sufficiency of the evidence, a reviewing court examines "whether the necessary

inferences are reasonable based upon the combined and cumulative force of all the

evidence when viewed in the light most favorable to the verdict." Id. (quoting

Hooper v. State, 214 S.W.3d 9, 16-17 (Tex. Crim. App. 2007)). Finally, the

"cumulative force" of all the circumstantial evidence can be sufficient for a jury to

find the accused guilty beyond a reasonable doubt, even if every fact does not "point

directly and independently to the guilt of the accused." See Powell v. State, 194

S.W.3d 503, 507 (Tex. Crim. App. 2006). However, the jury’s decision must be

rational and thus cannot be upheld if it relies on evidence of physical impossibilities

or speculation.

      The sufficiency of the evidence in a bench trial is measured by the evidence

adduced at both guilt-innocence and punishment phases. Barfield v. State, 63 S.W.3d

446, 451 (Tex. Crim. App. 2001). However, the sufficiency of the evidence in a

bifurcated trial in which the jury is asked to determine guilt is to be measured solely

by the evidence adduced during the guilt-innocence phase. Id. at 450. In such
a case, the appellate court’s "consideration of the evidence is necessarily limited to

that evidence before the jury at the time it rendered its verdict of guilt." Id.; Munoz

v. State, 853 S.W.2d 558, 560 (Tex. Crim. App. 1993).2

       The state’s case relies on the testimony of a bouncer working at the El Dorado

and the testimony of police officers who effected the arrest of Mr. Martinez. No one

saw the condition of the Hummer before Mr. Leal saw Appellant next to it. All other

witnesses denied seeing the incident at the Hummer. Mr. Leal was 100 yards away

from the vehicle at the time. He was thus could not possibly see if the man next to

the Hummer had anything in his hand or was cutting tires. All he could testify to was

a swinging motion.

       A knife was found on Appellant when he was stopped later that night outside

a different club. However, there was never any testimony about residue on the knife

or whether the knife was capable of causing the damage to the tires.

       Finally, there was nothing from which the jury could find a motive for the act

that might give rise to an inference that because Appellant intended harm to the

victim’s property then the circumstances indicate he caused harm to the property.

The victim didn’t know Appellant and had no confrontation with him in El Dorado.

       There being no evidence from which a jury could rationally conclude Appellant

       2
         As a result, Appellant’s declarations during the punishment phase of the trial, including
a declaration of accepting responsibility, may not be interpreted to be a confession and used to
support the jury’s finding of guilt.
damaged any tires on the vehicle, it could not rationally conclude he was guilty of

criminal mischief, the judgment should be reversed and an acquittal ordered.



II. Trial counsel was ineffective for failing to suppress statements taken through
custodial interrogation.

      A. Standards regarding counsel ineffectiveness claims

      Both the United States Constitution and the Texas Constitution guarantee

individuals the right to assistance of counsel in a criminal prosecution. "The right to

counsel requires more than the presence of a lawyer; it necessarily requires the right

to effective assistance." Lopez v. State, 343 S.W.3d 137, 143 (Tex. Crim. App. 2011)

(citing McMann v. Richardson, 397 U.S. 759, 771 n. 14, 90 S. Ct. 1441, 1449 (1970);

Powell v. Alabama, 287 U.S. 45, 57, 53 S. Ct. 55, 77 (1932)). Effective assistance

is not errorless representation but, rather, objectively reasonable representation. Id.

To prevail on his claim of ineffective assistance of counsel, a defendant must must

show that: (1) counsel's representation fell below an objective standard of

reasonableness, and (2) the deficient performance prejudiced the defense. Id.

(repeating the test set out by the United States Supreme Court in Strickland v.

Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064 (1984)).

      Courts of appeals must make a "strong presumption that counsel's performance

fell within the wide range of reasonably professional assistance." Robertson v. State,
187 S.W.3d 475, 482 (Tex. Crim. App. 2006); Martinez v. State, 313 S.W.3d 358,

364 (Tex. App.-Houston [1st Dist.] 2009, pet. ref'd). To overcome that presumption,

a defendant must show that the challenged action could not be considered sound trial

strategy under the circumstance. Martinez, 313 S.W.3d at 364 (citing Strickland, 446

U.S. at 689, 104 S. Ct. at 2065). Allegations of ineffectiveness must be firmly

founded in the record, which must demonstrate affirmatively the alleged

ineffectiveness. Thompson v. State, 9 S.W.3d 808, 813 (Tex. Crim. App. 1999). If

the record is silent on trial counsel's reasoning or strategy, a reviewing court presume

that his action was strategic. Id. at 814. The record on direct appeal rarely provides

the reviewing court an opportunity to conduct a fair evaluation of the merits of an

ineffective assistance of counsel claim. Randon v. State, 178 S.W.3d 95, 102 (Tex.

App.-Houston [1st Dist.] 2005, no pet.). If the record does not establish that trial

counsel's conduct fell below reasonable professional standards, a reviewing court is

not to speculate to find trial counsel ineffective. See Wood v. State, 260 S.W.3d 146,

148 (Tex. App.-Houston [1st Dist.] 2008, no pet.). In the event the appellate court

finds the issue is not shown on the record, the appellant may pursue the claim by way

of a habeas petition. Ex parte Brown, 205 S.W.3d 538, 546 (Tex. Crim. App. 2006).



      B. Standards regarding custodial interrogation

      Long ago, the United States Supreme Court determined that an accused, held
in custody, must be given required warnings before questioning. Miranda v. Arizona,

384 U.S. 436, 444-45, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966); see Jones v. State, 119

S.W.3d 766, 772 (Tex. Crim. App. 2003). Law enforcement's failure to comply with

the Miranda requirements results in forfeiture of the use of any statement obtained

during that questioning by the prosecution during its case-in-chief. Id. Similarly, the

Texas Code of Criminal Procedure provides that a statement is admissible against a

defendant in a criminal proceeding if, among other things, the defendant was warned

as the statute requires before the statement was made, and the defendant "knowingly,

intelligently, and voluntarily" waived the rights set out in the warnings. Herrera v.

State, 241 S.W.3d 520, 526 (Tex. Crim. App. 2007); see also TEX. CODE CRIM. PROC.

ANN. art. 38.22, §§ 2(a), 3(a) (West 2005).



      C. Mr. Martinez was in custody

      As with the Miranda warnings, the article 38.22 warnings are required only for

custodial interrogations. Woods v. State, 152 S.W.3d 105, 116 (Tex. Crim. App.

2004); TEX. CODE CRIM. PROC. ANN. art. 38.22, § 3(a). "Custody" for purposes of

article 38.22 is consistent with the meaning of "custody" for purposes of Miranda.

Herrera, 241 S.W.3d at 526. "Custody," for purposes of Miranda and article 38.22,

includes the following: (1) the suspect is physically deprived of his freedom of action

in a significant way; (2) a law enforcement officer tells the suspect he is not free to
leave; (3) law enforcement officers create a situation that would lead a reasonable

person to believe that his freedom of movement has been significantly restricted; and

(4) probable cause exists to arrest the suspect, and law enforcement officers do not

tell the suspect he is free to leave. Gardner v. State, 306 S.W.3d 274, 294 (Tex.

Crim. App. 2009) (citing Dowthitt v. State, 931 S.W.2d 244, 254 (Tex. Crim. App.

1996)).

      Mr. Martinez was in a vehicle that was intercepted by a patrol car with flashing

lights and was immediately confronted by no less than 6 police officers who

immediately took him from the vehicle, searched his person, took a knife from him,

and kept him guarded and restrained for the entire interrogation. His freedom of

movement was considerably restricted, he had every reason to believe he was not free

to leave, and he was certainly never told he could leave.



     D. Mr. Martinez was subject to interrogation for purposes of art. 38.22 and
Miranda

      Both the Miranda line of cases and article 38.22 of the Texas Code of Criminal

Procedure provide that a statement made by the accused during a custodial

interrogation is inadmissible unless the accused was properly admonished of certain

constitutional rights. See Miranda, 384 U.S. at 444; Tex. Code Crim. Proc. art. 38.22,

§ 2 (listing admonishments that must be given).          Custodial interrogation is
"questioning initiated by law enforcement officers after a person has been taken into

custody or otherwise deprived of his freedom of action in a significant way."

Miranda, 384 U.S. at 444; see also Herrera v. State, 241 S.W.3d 520, 525 (Tex.

Crim. App. 2007) (adopting Miranda line of cases' definition of custodial

interrogation to article 38.22). However, "the special procedural safeguards outlined

in Miranda are required not where a suspect is simply taken into custody, but rather

where a suspect in custody is subjected to interrogation." Rhode Island v. Innis, 446

U.S. 291, 300, 100 S. Ct. 1682, 1689-90, 64 L. Ed. 2d 297 (1980). In this case, it is

undisputed that Garcia was in custody when Detective Smotherman asked his initial

questions. Thus, the only issue is whether those questions constituted interrogation

within the meaning of Miranda.

      "Interrogation, as conceptualized in the Miranda opinion, must reflect a

measure of compulsion above and beyond that inherent in custody itself." Id.

(internal quotations omitted). "Interrogation" is defined as any words or actions by

the police that they should have known are reasonably likely to elicit an incriminating

response. Rhode Island v. Innis, 446 U.S. 291, 301, 100 S. Ct. 1682, 1689-90, 64 L.

Ed. 2d 297 (1980). Questioning which occurs as a normal incident of arrest and

custody is not interrogation. Id. Further, offhand remarks, not designed to elicit a

response, do not constitute custodial interrogation. Id., 446 U.S. at 302, 100 S. Ct.

at 1690; Murray v. State, 864 S.W.2d 111, 114 (Tex. App. — Texarkana 1993, pet.
ref'd).     "[T]he Miranda safeguards do not exist to protect suspects from the

compulsion inherent in custody alone, nor do they protect suspects from their own

propensity to speak, absent some police conduct which knowingly tries to take

advantage of the propensity." Jones v. State, 795 S.W.2d 171, 176 n.5 (Tex. Crim.

App. 1990). Thus, certain types of questions are not considered interrogation,

including "routine inquiries, questions incident to booking, broad general questions

such as `what happened' upon arrival at the scene of a crime, and questions mandated

by public safety. . . ." Id. at 174. An objective standard is applied to determine

whether custodial questioning constituted interrogation. See United States v. Abdulla,

294 F.3d 830, 834 (7th Cir. 2002).

          As Mr. Martinez was taken from the car, he was asked questions regarding

whether they had been to the El Dorado and why they left.                       SX 6,

JerryL@20140511002520, 1:30–6:50. Placing one’s self at the scene of a crime is

obviously incriminating. Both suspects were told multiple times they were under

suspicion of a weapon incident at the El Dorado. Thus, this was interrogation for

purposes of Miranda and Tex. Code. Crim. Proc. Art. 38.22.



      E. Counsel was ineffective for failing to move for the suppression of the
statements.

          Standard operating procedure for any attorney in a criminal case is to remove
any statement made by the accused that has any tendency to make more probable his

guilt. It was below the standard of the profession to fail to move to suppress

Appellant’s statements that were the product of a custodial interrogation.

      Appellant was harmed by this failure due to the State using the Appellant’s

admission of ownership of the knife in closing argument. RR Vol. 4, p. 26. The

statements also included admissions regarding being at the El Dorado, something that

would require Appellant to respond with an explanation regarding that presence and

departure. The harmful effect of improperly admitted evidence is not cured by the

fact that the defendant sought to meet, destroy, or explain it by the introduction of

rebutting evidence, and such testimony does not act as a waiver of the right to

challenge the admissibility of the evidence originally admitted. McGlothlin v. State,

896 S.W.2d 893, 896 n. 9 (Tex. Crim. App. 1995).

      There can be no sound trial strategy in allowing incriminatory comments from

the accused to be admitted to the jury. In addition to the incriminatory comments, the

jury was prejudiced by the intoxicated appearance of Mr. Martinez, his attempts to

foist blame on his brother being “the crazy one, and the admission of being involved

in altercations at both El Dorado and Entourage. While the record is silent regarding

trial counsel’s reasoning for permitting the videos to be included in the evidence,

there can be no justification of any reasonable trial strategy.     Accordingly, the

judgment should be reversed and the case remanded for a new trial.
                                      Prayer

      Appellant, Christopher Martinez, respectfully requests this Honorable Court

to reverse the judgment of the court below and order an acquittal. Alternatively, he

requests this Honorable Court to reverse the judgment and remand for a new trial.

                                             Respectfully submitted,

                                              /s/ Donald B. Edwards
                                             Donald B. Edwards
                                             State Bar No. 06469050
                                             Law Office of Donald B. Edwards
                                             P.O. Box 3302
                                             Corpus Christi, TX 78463-3302
                                             (361) 887-7007
                                             (361) 887-7009 (fax)
                                             Attorney for Appellant

                     Certificate of Compliance and Service

      I, Donald B. Edwards, certify that this brief contains 3,597 words in those
matters not exempted under Rule 9. A copy of this brief is being delivered via copy
forwarding service of the electronic filing system to Mr. Doug Norman at his email
addresses of douglas.norman@nuecesco.com and douglas.norman@co.nueces.tx.us.

                                             /s/ Donald B. Edwards
                                             Donald B. Edwards
