                                   NO. 07-08-0475-CR

                             IN THE COURT OF APPEALS

                      FOR THE SEVENTH DISTRICT OF TEXAS

                                     AT AMARILLO

                                        PANEL C

                                     JULY 26, 2010


                                   JOSEPH G. NUNEZ,

                                                                  Appellant
                                             v.

                                 THE STATE OF TEXAS,

                                                                   Appellee
                           ___________________________

           FROM THE 140TH DISTRICT COURT OF LUBBOCK COUNTY;

          NO. 2007-415,790; HONORABLE JIM BOB DARNELL, PRESIDING


                                 Memorandum Opinion


Before QUINN, C.J., and HANCOCK and PIRTLE, JJ.

       Joseph G. Nunez was sentenced to life imprisonment after being convicted of

capital murder. In seven issues, he challenges 1) the trial court’s denial of his motion to

suppress his statement, 2) the legal and factual sufficiency of the evidence, and 3) the

cruel and unusual nature of his punishment. We reverse the judgment.
       Background

       On October 22, 2006, Richard Ramirez and appellant, his sixteen-year-old

nephew,1 and appellant’s friend Christopher Crittendon went to the Boom Boom

Cabaret in Lubbock. They spent some time there and decided to rob it. As Gilbert

Victor, general manager of the club, and Anthony Lopez, a bouncer, locked up and left

the club, appellant and Crittendon approached them with guns and forced them to lie on

their stomachs on the ground. Kim Suddeth, a dancer at the club who was being given

a ride home by Lopez, was already seated in his vehicle. She observed the actions of

the youths and called 911 on her cell phone. While doing so, Ramirez appeared at the

window of the vehicle and threatened to shoot her if she did not hang up the phone and

get out of the vehicle. She did so and Ramirez threw her to the ground. Ramirez then

walked over and shot both Gilbert and Lopez. He walked back to Suddeth and shot her

three times. After doing so, Ramirez returned to Gilbert and Lopez and shot each of

them again and then shot Suddeth one more time. The robbers left with two briefcases

which contained money and other items. Both Gilbert and Lopez died at the scene, but

Suddeth survived.

       Issues 1-3 – Suppression of Appellant’s Statement

       Appellant argues that his confession should have been suppressed because it

was involuntary and he had previously invoked his Fifth Amendment right to counsel

when questioned about another robbery.2 Though the State disputes that the statement


       1
        Appellant was certified to stand trial as an adult.
       2
        The alleged Fifth Amendment violation is based on his prior utterance to law enforcement
personnel investigating another robbery that he wished to “talk with an attorney before giving a
statement.” This utterance occurred two days prior to the date he gave the statement here at issue.
                                                      2
was involuntary, it concedes that appellant’s Fifth Amendment right to counsel was

violated. To avoid reversal, however, it attempts to argue that the complaint was not

preserved for review and that the law should be changed.                      Regarding the latter

argument, we are bound to follow the interpretation given the Fifth Amendment by the

United States Supreme Court and Court of Criminal Appeals. Ex parte Graves, 271

S.W.3d 801, 806 (Tex. App.–Waco 2008, pet. ref’d), cert. denied, __ U.S. __, 130 S.Ct.

261, 175 L.Ed.2d 176 (2009). Should one care to have the Amendment reinterpreted,

he must seek that from those courts.

        Regarding the issue of preservation, appellant averred in his motion to suppress

that his confession was obtained in violation of multiple constitutional rights including

the Fifth Amendment. When requesting a hearing on that motion, he mentioned both

the Fifth and Sixth Amendments. Furthermore, his brief, filed in support of the motion,

contained the following passages: 1) “any statement given as the result of custodial

interrogation of a juvenile conducted outside the presence of an attorney already

representing that juvenile on another matter is involuntary under art. I, sec. 10 of the

Texas Constitution and the Fifth and Sixth Amendments of the United States

Constitution . . .” and 2) “[a]s Defendant was a juvenile and was already represented by

counsel on the matter for which Defendant was in custody, his statement was

involuntary when law enforcement did not first contact Defendant’s attorney prior to

questioning him about the instant cause.”              These circumstances, when considered

together, were ample to apprize a reasonable jurist in the same situation that appellant

claimed the State violated his Fifth Amendment right to counsel by subjecting him to

Allegedly, Deputy Stephens did not know that appellant had made the utterance when he initially met with
appellant.
                                                   3
interrogation outside the presence of legal counsel. Consequently, appellant perfected

the issue for review. See Pena v. State, 285 S.W.3d 459, 464 (Tex. Crim. App. 2009)

(stating that an issue has been preserved when a party lets the trial judge know what he

wants and why he thinks he is entitled to it clearly enough for the judge to understand

him at a time when the judge is in a proper position to do something about it).

          The State having conceded error, we next determine whether the mistake was

harmless. Since the error was of constitutional magnitude, it can be disregarded only if

we conclude, beyond reasonable doubt, that it did not contribute to the conviction or

punishment.       TEX. R. APP. P. 44.2(a).         While it is true that evidence other than

appellant’s statement illustrates his complicity in the crime, one cannot discount the

impact of a detailed confession like that at bar. Hearing the accused clearly inculpate

himself, purportedly in a voluntarily manner, can hardly be ignored by a rational jury.

McCarthy v. State, 65 S.W.3d 47, 56 (Tex. Crim. App. 2001) (noting the impact that a

confession has on the outcome). Given this, we cannot say beyond reasonable doubt

that appellant’s statement did not contribute to his conviction or sentence.

          The trial court erred in refusing to suppress the confession, and the error was

harmful.      Thus, the judgment is reversed and the cause remanded for further

proceedings.3 See id. at 56.



                                                        Per Curiam
Do not publish.



          3
          Our disposition of this issue precludes the necessity for us to discuss appellant’s remaining
issues.

                                                   4
