


NUMBER 13-98-465-CR

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI
____________________________________________________________________


JOSE BERNARDO JIMENEZ,						Appellant,


v.

THE STATE OF TEXAS,							Appellee.

____________________________________________________________________


On appeal from the 107th District Court of Cameron

County, Texas.

____________________________________________________________________


O P I N I O N

Before Justices Hinojosa, Chavez, and Rodriguez
Opinion by Justice Hinojosa


	A jury found appellant, Jose Bernardo Jimenez, guilty of the
offense of murder,(1) and the trial court assessed his punishment at forty
years imprisonment.  By twelve points of error, appellant contends: (1)
the evidence is legally insufficient to show the 

truck alleged to have been stolen by appellant had a market value of
more than $750.00; (2) the evidence is legally insufficient to prove the
felony theft element; (3) the trial court erred in making an affirmative
deadly weapon finding; (4) the trial court erred in admitting appellant's
written confession; (5) the trial court abused its discretion by finding
appellant knowingly, intelligently, and voluntarily waived his right to a
lawyer when he made a written confession; (6) the trial court erred in
denying appellant's motion for new trial; and (7) appellant was
subjected to double jeopardy.  We reverse and remand for a new trial.

A.  Background
	On June 4, 1989, Candelario Rivera traveled to South Padre Island
to fish with some friends.  About 7:30 p.m., he returned to his Ford
pickup truck to retrieve some gear.  As he and a friend were
approaching the vehicle, the truck was backing out of the parking
space.  Someone was stealing his truck.  Candelario ran toward the
truck and hit the window, but was unable to see who was in the
vehicle.  Candelario then called 911 and reported that someone was
stealing his vehicle.

	After the truck had been reported stolen, police officers in the area
were notified to be on the look out for the truck.  Upon receiving the
dispatch call around 7:48 p.m., Deputy Arnold Flores proceeded to the
intersection of State Highway 48 and Farm to Market Road (FM) 511
because most stolen vehicles head toward the Brownsville Gateway
Bridge which goes into Mexico, and Highway 48 is "one of the only
roads that heads that way" from the Island.  When a truck, matching
the description of the stolen vehicle first approached Deputy Flores
position, it was traveling at a normal rate of speed.  As the vehicle
passed Deputy Flores, he began to follow it with his lights and sirens
on, the vehicle began to travel at a high rate of speed.  During the
pursuit, the driver of the stolen vehicle traveled at speeds in excess of
seventy to eighty-five miles per hour and drove in lanes against the
traffic.(2)
	As the stolen vehicle entered the intersection of Highway 48 and
Price Road, the vehicle went through the intersection, ignoring the red
light.  As the truck traveled into the intersection, it collided with a
yellow vehicle that was turning from Price Road into the intersection.(3) 
The collision flipped the truck over onto its roof.  The yellow vehicle split
in half.  There were five individuals in the vehicle that was hit; two were
killed in the accident, including Brenda Lee Alvarado, a two-year-old
child in the backseat of the vehicle.  Brenda Lee is the subject of the
indictment in this case.  The other person who died in the collision was
Maria de Jesus Alvarado.

	As Deputy Flores proceeded into the intersection toward the
overturned truck, he saw an individual climbing out of the driver's side
window.  The individual ran from the intersection to a residential area. 
Deputy Flores began to chase after him, but lost the individual in the
residential area.  Other officers, including Lieutenant George Gavito,
joined the search for the individual.  Appellant was found hiding on the
roof of a house by Deputy George Delgado.  Appellant was then
transported to the Cameron County Sheriff's Department where he gave
a written confession.

B.  Procedural History
	On October 25, 1989, appellant was indicted for the felony murder
of Brenda Lee Alvarado in cause number 89-CR-1060.  Appellant was
separately indicted for the felony murder of Maria de Jesus Alvarado in
cause number 89-CR-1059.(4)
	On February 1, 1990, appellant filed a motion to suppress his
confession.  On February 9, 1990, the State informed the court that the
cases would be tried separately.  On February 9, 1990, after a pretrial
hearing, the trial court denied appellant's motion to suppress his
confession.  

	The trial in cause number 89-CR-1060 began on February 20,
1990, and the jury found appellant guilty of murder as charged in the
indictment on February 22, 1990.  On April 5, 1990, the trial judge
assessed punishment at forty years imprisonment.  

	On May 14, 1990, appellant pleaded guilty to the indictment in
cause number 89-CR-1059.  The trial court found him guilty and
assessed his punishment at sixty years imprisonment.  The judgment
in cause number 89-CR-1059 was rendered on May 18, 1990.  The
judgment in cause number 89-CR-1060 was rendered on May 20,
1990.  

	On June 2, 1998, cause number 89-CR-1060 was transferred from
the 107th District Court of Cameron County to the 197th District Court
of Cameron County.  On July 15, 1998, the Texas Court of Criminal
Appeals granted appellant's writ of habeas corpus allowing him an out-of-time appeal because his trial counsel had failed to file a notice of
appeal or withdraw as counsel.  On August 25, 1998, appellant filed his
notice of appeal.  On August 31, 1998, appellant filed a motion for new
trial.  On September 14, 1998, the trial court denied appellant's motion
for new trial.

C.  The Suppression Hearing
	In his fourth, fifth, and sixth points of error, appellant contends the
trial court erred in failing to suppress his written confession.  Appellant
argues the statement was obtained after he invoked his right to
counsel, and the trial court abused its discretion in finding that
appellant had knowingly, intelligently, and voluntarily waived his right
to counsel.

	Appellant, in his pretrial motion to suppress, alleged that his
confession resulted from: (1) inadequate warning of statutory and
constitutional rights; (2) involuntariness because at the time the
confession was made appellant was still under the influence of alcohol
and in a state of shock; (3) improper inducements by law enforcement
officers; (4) coercion through the "acore tactics" of law enforcement
officers immediately before making his confession; (5) the lack of advice
concerning the nature of the offense that the interrogation related to;
and (6) denial of the right to counsel because the statement was
obtained by continuing interrogation after appellant had requested to
speak to an attorney.

	At the hearing on the motion to suppress appellant's confession,
Sergeant Luis Martinez and appellant testified.

	Martinez testified he first contacted appellant on June 4, 1989, at
approximately 8:20 p.m.  Martinez had been called by Lieutenant
George Gavito to come to the Sheriff's Department to interview a
suspect apprehended in a traffic accident.  Appellant had been arrested
for his involvement in a fatal traffic accident.  Before interviewing
appellant, Martinez warned him of his constitutional rights.  Appellant
was cooperative and never indicated he wanted to terminate the
interview or talk to a lawyer.  Martinez made no promises to appellant,
did not coerce him, and was not wearing a gun during the interview. 
Martinez believed that appellant was not intoxicated during the
interview, and appellant did not exhibit the symptoms of shock.  After
giving a statement, appellant was afforded the opportunity to read it
before he signed it.  The signing of the statement was witnessed by
Deputy Roy Armendariz and Elsie Guerra.

	On cross-examination, Martinez testified he did not know how
long appellant had been in custody before the interview.  He questioned
appellant for about forty minutes, but knew nothing about the
conditions under which appellant was kept before or after the interview. 
Martinez did not know if anyone else had talked to appellant before he
arrived to interview him.  Roy Armendariz and Elsie Guerra were present
during the entire interview.   

	Appellant testified that Lieutenant Gavito took him from the scene
of the accident to the Sheriff's Department.  While in the car, Gavito
mistreated him and continually asked him questions, but at no time did
Gavito inform appellant of his rights.  Appellant told Gavito that he
needed an attorney.  Once at the Sheriff's Department, Gavito continued
to beat appellant in the presence of two other deputies.  Before
Martinez came to question appellant, Gavito told appellant "to say
everything, to testify.  And he kept telling [him], 'Yes, you are the one
that stole the cars and he would beat up on [him]."  Appellant told
Gavito that "[he] didn't know anything."  Appellant intended that to
mean that he did not want to say anything to the officers.  Gavito told
appellant to say anything that could help him.

	When appellant made the statement to Martinez, Elsie Guerra and
Roy Armendariz were not present.  Martinez spoke to appellant in
English and appellant "[did] not understand much English."  Appellant
did not read the statement he made before he signed it.  Appellant
made the statement because he was scared as a result of the treatment
he received from Gavito.  Gavito said to him, "You're going to go with
[Martinez].  You're going to talk to him, and you're going to tell him
everything he tells you to say."

	At the suppression hearing, the trial court ruled that appellant's
statement was voluntarily and freely made by appellant, without
compulsion or coercion.  The court further found that appellant waived
his rights to counsel and to remain silent.

D.  Analysis
	Appellant, in his motion to suppress, through evidence produced
at the hearing, and in his appellate brief, has continued to assert that
police continued to interrogate him after he invoked his right to counsel. 
The State, in its evidence at the hearing and in its brief on appeal,
continues to rely solely on Martinez's assertion that appellant did not
invoke his right to counsel and, in fact, waived his rights before
confessing.  

	Martinez's testimony rebuts the assertion that appellant requested
counsel from him before and during his interrogation.  As a general rule,
the appellate courts should afford almost total deference to a trial
court's determination of the historical facts that the record supports,
especially when the trial court's fact findings are based on an evaluation
of credibility and demeanor.  Guzman v. State, 955 S.W.2d 85, 89 (Tex.
Crim. App. 1997).  Accordingly, because the trial court's ruling in this
respect is supported by the record, it will not be disturbed.

	However, appellant's testimony that he told Gavito he needed a
lawyer was not contradicted by the State.  In addition, the State did not
explain the absence of Gavito who could have contradicted appellant's
assertion.  Whenever the accused's testimony reflects that he was
unlawfully caused to make a written confession, and his testimony is
uncontradicted, then the accused's written confession is inadmissible
as a matter of law.  Moore v. State, 700 S.W.2d 193, 202 (Tex. Crim.
App. 1985); Sherman v. State, 532 S.W.2d 634, 636 (Tex. Crim. App.
1976); McKenna v. State, 797 S.W.2d 216, 220 (Tex. App.--Corpus
Christi 1990, no pet.).  The State's failure to refute a defendant's
allegations lends support to the conclusion that the State cannot refute
the allegations.  See Barton v. State, 605 S.W.2d 605, 607-08 (Tex.
Crim. App. 1980); Sherman, 532 S.W.2d at 636; Farr v. State, 519
S.W.2d 876, 879 (Tex. Crim. App. 1975).

	Since the uncontradicted evidence shows appellant told Gavito
that he needed an attorney before Martinez interrogated him, we must
determine what effect, if any, appellant's invocation of his right to
counsel had on the legality of the confession.  

	Although Martinez testified that appellant waived his rights, and
although the confession contains a written waiver of rights, we find
that these "waivers" are invalid.  When a defendant informs police or
a magistrate of his desire to invoke his right to counsel, any subsequent
"waiver" of that right will be invalid when such a waiver is prompted
by further police questioning.  See Edwards v. Arizona, 451 U.S. 477
(1981); Holloway v. State, 780 S.W.2d 787, 798 (Tex. Crim. App. 1989). 
In Edwards, the United States Supreme Court held that once a suspect
has invoked his right to counsel, the police may not question him in the
absence of counsel unless the suspect initiates the contact.  Edwards,
451 U.S. at 484-85.  See Tanner v. State, 712 S.W.2d 523, 525 (Tex.
Crim. App. 1986).  The uncontradicted evidence shows that appellant
did not initiate the conversation with Martinez.  Accordingly, appellant's
"waiver" of his right to counsel was invalid.  Appellant's prior assertion
of his right to counsel to Gavito restricted Martinez's ability to
interrogate him.  See Arizona v. Roberson, 486 U.S. 675 (1988) (officer
who proposes to initiate an interrogation needs to determine whether
the suspect has previously requested counsel).  

	Martinez had a duty, before interrogating appellant, to determine
whether he had previously invoked his right to counsel.  The record
does not show that Martinez made this inquiry.  In fact, Martinez's
testimony shows that he did not know the circumstances of appellant's
custody prior to his interrogation.

	Under these uncontroverted facts, we must find that the police did
not honor appellant's request to speak with an attorney.  Accordingly,
the trial court erred in finding that the confession was admissible. 
Appellant's fourth, fifth, and sixth points of error are sustained.  

	Based on our determination that the trial court erred in finding that
appellant's confession was admissible, we need not address appellant's
remaining points of error.  See Tex. R. App. P. 47.1. 


	The judgment of the trial court is reversed, and the cause is
remanded to the trial court for further proceedings consistent with this
opinion.

							FEDERICO G. HINOJOSA

							Justice


Publish.  Tex. R. App. P. 47.3.


Opinion delivered and filed this the

24th day of August, 2000.

1.  Appellant was convicted under Tex. Pen. Code Ann. § 19.02(a)(3) (Vernon
1989).  The penal code has since changed and the offense is now found at Tex. Pen.
Code Ann. § 19.02(b)(3) (Vernon 1994).
2.  Highway 48 is a four-lane road with a turning lane in the middle.  The speed
limit on Highway 48 in this area was 55 mph.
3.  The victim's vehicle had the green light and the right of way.
4.  Cause number 89-CR-1059 is not the subject of this appeal.  

