                    PD-0078-15
                       No.____________                       January 22, 2015

                                In the
                      Court of Criminal Appeals

                       
                         No. 14-12-00096-CR
In the Court of Appeals for the Fourteenth District of Texas at Houston
                       
                             No. 1333231
                    th
          In the 228 District Court of Harris County, Texas
                       

                       JOSE VASQUEZ
                              Appellant
                                 V.
                  THE STATE OF TEXAS
                               Appellee

                      
STATE’S PETITION FOR DISCRETIONARY REVIEW
               AFTER REMAND
                      

                                              DEVON ANDERSON
                                              District Attorney
                                              Harris County, Texas

                                              ERIC KUGLER
                                              Assistant District Attorney
                                              Harris County, Texas
                                              TBC No. 796910

                                              1201 Franklin, Suite 600
                                              Houston, Texas 77002
                                              Tel.: 713-755-5826
                                              FAX: 713-755-5809

                                              Counsel for Appellee

                 ORAL ARGUMENT REQUESTED
                                        TABLE OF CONTENTS

INDEX OF AUTHORITIES ..................................................................................... ii

STATEMENT REGARDING ORAL ARGUMENT ................................................iv

STATEMENT OF THE CASE................................................................................... v

STATEMENT OF PROCEDURAL HISTORY ......................................................... v

STATEMENT OF FACTS ......................................................................................... 1

GROUNDS FOR REVIEW ....................................................................................... 3

   A. The lower court’s majority opinion erred in holding that the appellant
   preserved his two-step interrogation complaint for appellate review. ...................3

   B. The lower court’s majority opinion erred in holding that the appellant was
   subject to custodial interrogation prior to receiving and waiving his legal rights. 3

   C. The lower court’s majority opinion erred in holding that a two-step
   interrogation technique was deliberately employed by the police. ........................3

   D. The lower court’s majority opinion erred in holding that the appellant was
   harmed by the admission of his statement when there was overwhelming
   evidence of the appellant’s guilt independent of his statement to the police. ........3

ARGUMENT ............................................................................................................. 4

PRAYER FOR RELIEF ........................................................................................... 17

CERTIFICATE OF SERVICE AND COMPLIANCE............................................. 18




                                                           i
                                     INDEX OF AUTHORITIES


CASES

Barfield v. State,
  416 S.W.3d 743 (Tex. App.—
  Houston [14th Dist.] 2013, no pet.)........................................................................7
Batiste v. State,
  AP-76,600, 2013 WL 2424134 (Tex. Crim. App. June 5, 2013)
  cert. denied, 134 S. Ct. 1000 (U.S. 2014) ........................................................ 7, 11

Carter v. State,
  309 S.W.3d 31 (Tex. Crim. App. 2010)..................................................... 7, 13, 14

Maxwell v. State,
 73 S.W.3d 278 (Tex. Crim. App. 2002)................................................................12
Missouri v. Seibert,
 542 U.S. 600 (2004) ...............................................................................................7
Nguyen v. State,
  292 S.W.3d 671 (Tex. Crim. App. 2009) ................................................................8
Oregon v. Elstad,
  470 U.S. 298 (1985) .............................................................................................13
People v. Delatorre,
  B230591, 2012 WL 909659 (Cal. Ct. App. Mar. 19, 2012) .................................15

Phillips v. Bramlett,
  288 S.W.3d 876 (Tex. 2009)................................................................................. 11

Resendez v. State,
  256 S.W.3d 315 (Tex. App.—
  Houston [14th Dist.] 2007)...................................................................................10

State v. Hughes,
  272 S.W.3d 246 (Mo. Ct. App. 2008) ..................................................................15




                                                         ii
Vasquez v. State,
  14-12-00096-CR, 2014 WL 7365945 (Tex. App.—
  Houston [14th Dist.] Dec. 23, 2014, pet. filed) ......................................................v

Vasquez v. State,
  397 S.W.3d 850 (Tex. App.—
  Houston [14th Dist.] March 28, 2013, pet. granted) ..............................................v

Vasquez v. State,
  411 S.W.3d 918 (Tex. Crim. App. 2013) ................................................................v




STATUTES

TEX. CODE CRIM. PROC. art. 38.22 §3 (West 2010) ...............................................8, 9




RULES

TEX. R. APP. P. 33.1(a) ....................................................................................... 10, 12
TEX. R. APP. P. 66.3 ....................................................................................................4
TEX. R. APP. P. 68.2 ....................................................................................................v
TEX. R. APP. P. 68.4 (c) ............................................................................................. iv




                                                           iii
               STATEMENT REGARDING ORAL ARGUMENT

      Pursuant to TEX. R. APP. P. 68.4 (c), the State requests oral argument because

the fact-finding by the majority opinion of the court of appeals played a decisive

role in the outcome of this case, and an oral argument may help to further clarify

the factual issues.




                                        iv
TO THE HONORABLE COURT OF CRIMINAL APPEALS OF TEXAS:


                          STATEMENT OF THE CASE

      The appellant was charged with the capital murder of Suu Nguyen and

Aleksander Lobos (CR – 2). He pled “not guilty” to the charge, and the case was

tried to a jury (CR – 159). The jury found the appellant guilty, and the court

thereafter assessed punishment at life in prison.




                 STATEMENT OF PROCEDURAL HISTORY

      The appellant appealed, and the court of appeals reversed the conviction,

finding that the appellant’s statement to the police was the result of a two-step

interrogation and that he was harmed by the admission of that statement. Vasquez v.

State, 397 S.W.3d 850 (Tex. App.—Houston [14th Dist.] March 28, 2013, pet.

granted). This Court vacated and remanded for the trial court to make factual

findings. Vasquez v. State, 411 S.W.3d 918 (Tex. Crim. App. 2013). After the trial

court made findings supporting the admission of the statement, the court of appeals

again reversed the conviction over a strong dissent. Vasquez v. State, 14-12-00096-

CR, 2014 WL 7365945 (Tex. App.—Houston [14th Dist.] Dec. 23, 2014, pet. filed)

(attached as Appendix A). This petition for discretionary review is timely if filed

on or before January 22, 2015. TEX. R. APP. P. 68.2.



                                          v
                           STATEMENT OF FACTS

      In April 2010, Walter Gallo and Luis Ollevera wanted some marijuana; so

Gallo called Walter Martinez, one of the appellant’s close friends, in order to get

one pound of “hydro,” a higher-quality type of marijuana (RR. III – 193-195, 263-

264). Martinez apparently set up a meeting with Suu Nguyen and Aleksander

Lobos to acquire the marijuana (St. Ex. 150). Nguyen drove a Toyota Scion, and

Lobos owned an Infiniti G35 (RR. IV – 32) (St. Ex. 77).

      When Martinez went to meet Nguyen and Lobos, the appellant and some

other friends accompanied him (St. Ex. 150). There were two cars parked on the

street at the meeting place: Lobos’s Infiniti and Nguyen’s Scion; both Nguyen and

Lobos were sitting in the Scion (St. Ex. 59-78, 150). The appellant was carrying a

revolver in his waistband (St. Ex. 150). At some point during the transaction, the

appellant pulled out his revolver, pushed open the Scion’s door, and shot both

Nguyen and Lobos (St. Ex. 150) (RR. V – 52) (St. Ex. 150). Lobos sustained two

fatal gunshot wounds: one to his head and the other to his chest (St. Ex. 108) (RR.

IV – 156-160). Nguyen also suffered two fatal gunshot wounds: one to the back of

his head and the other to his back (St. Ex. 109) (RR. IV – 138-147). The appellant

or his accomplices stole the marijuana and the Infiniti (RR. III – 224, 269-270)

(RR. V – 52, 55) (St. Ex. 35-38).
      Martinez told Gallo to be at his house at around 11:00 p.m. that evening

(RR. III – 199, 262, 264). He also told Gallo to enter the house through the back

yard (RR. III – 201-202, 265). When Gallo and Ollevera arrived, they saw about

ten guys, including the appellant, who appeared to be “hyped up,” jumpy, and

celebrating (RR. III – 204-205, 211, 219, 261, 266-267, 305).

      The appellant stated that he had shot and killed two people for a bag of weed

(RR. III – 205, 214, 268) (RR. IV – 34-35). He was holding a bag of marijuana,

and he showed it to Gallo (RR. III – 211, 223, 269). Gallo stated, “Y’all murdered

these people for that, for that bag?” (RR. III – 225). But Gallo also saw the Infiniti

inside the garage and learned that the car had been taken during the murders (RR.

III – 224, 269-270) (St. Ex. 35-38). The appellant did not appear to be remorseful

over the murders (RR. III – 272).

      Gallo had been inside Martinez’s house for about ten minutes when the

police arrived (RR. III – 225, 272). He was so paranoid that he jumped the fence

into the neighbor’s yard and ran away, but he was eventually caught (RR. III –

226-228). Ollevera did the same with similar results (RR. III – 273-275). The

officers entered Martinez’s house and found a large bag of marijuana on top of the

living-room sofa (RR. IV – 30). The Infiniti parked in the garage belonged to

Lobos (RR. IV – 32).




                                          2
      More than two weeks after the murders, the police tracked the appellant to

an apartment complex on South Post Oak (RR. IV – 65, 81). As the officers were

attempting to enter the apartment, a neighbor yelled that some guys were jumping

off of the second-story balcony at the back of the apartment (RR. IV – 70). The

suspects, including the appellant, started running down Post Oak, but the police

chased them to a nearby gas station where the appellant was finally detained (RR.

IV – 70-71). The appellant then gave a videotaped statement to homicide detective

Richard Bolton in which he admitted to shooting both of the victims (St. Ex. 150).




                           GROUNDS FOR REVIEW

      A.    The lower court’s majority opinion erred in holding that the
            appellant preserved his two-step interrogation complaint
            for appellate review.

      B.    The lower court’s majority opinion erred in holding that the
            appellant was subject to custodial interrogation prior to
            receiving and waiving his legal rights.
      C.    The lower court’s majority opinion erred in holding that a
            two-step interrogation technique was deliberately employed
            by the police.

      D.    The lower court’s majority opinion erred in holding that the
            appellant was harmed by the admission of his statement
            when there was overwhelming evidence of the appellant’s
            guilt independent of his statement to the police.




                                         3
                                  ARGUMENT

      This petition for discretionary review should be granted because the justices

of the court of appeals disagreed on a material question of law necessary to the

court’s decision and because the analysis used by the majority opinion has so far

departed from the accepted and usual course of judicial proceedings so as to call

for an exercise of this Court’s power of supervision. TEX. R. APP. P. 66.3.

Specifically, the majority opinion held that the two-step-interrogation issue was

preserved for appellate review when the trial court thought that the appellant was

making a different objection. Furthermore, the majority opinion failed to defer to

the explicit factual findings of the trial court where there was evidence in the

record that the appellant was not subject to custodial interrogation prior to

receiving his legal rights. The majority opinion also erred in finding deliberate

misconduct by the police when there was no support in the record for such a

conclusion. Finally, the majority opinion erred in holding that the appellant was

harmed by the admission of his statement to the police when he bragged of his

crime to numerous friends, showed the fruits of the crime, and ran from the police.

      The appellant filed a written pre-trial motion to suppress his confession,

claiming that his statement was taken without a proper warning of his

constitutional and statutory rights and that he was illegally arrested (CR – 54-55).

The trial court carried the motion with the trial; when Detective Bolton was called



                                         4
to testify, the trial court held a hearing outside the presence of the jury at which the

appellant and Bolton were the only witnesses (RR. IV – 79, 95). The trial court

apparently believed that the only purpose of the hearing was to address the

voluntariness of the appellant’s statement (RR. IV – 80-81).

      Detective Bolton testified that the appellant was initially interviewed on

April 16 and that Bolton was called in to conduct the formal interview that evening

(RR. IV – 81, 85). Bolton testified that his partner, Investigator Padilla, had

interviewed the appellant prior to the formal statement and that Bolton had

monitored the interview, although there was conflicting evidence on that issue

(RR. IV – 86, 87, 89).       During the following exchange with the appellant’s

counsel, Bolton testified that Padilla had given the appellant his legal warnings

prior to questioning him:

            Q. So, there was a time when both individuals were telling you
      they were not involved and didn’t know what you were talking about.

             A. The defendants?

             Q. Yes.

             A. Yes.

             Q. That be fair to say?

             A. Yes, sir.

            Q. And when any other officers read them their Miranda
      warnings, you don’t know or if they were read at all ‘cause you
      weren’t there?


                                           5
             A. Yes, I was there. I was in the monitoring room. When they
      entered the room, you know, they read the defendant – and when they
      interviewed Mr. Martinez, they also read him his legal warnings as
      well.

(RR. IV – 87). The trial court found, based on its evaluation of the witnesses’

testimony and credibility, that “Bolton credibly testified that Padilla had given the

defendant his legal warnings prior to questioning him,” and that “any statements

indicating that Padilla had not given the defendant his legal warnings prior to

questioning him are not credible.” (CR Supp. – 23) (attached as Appendix B).

      Bolton did not start talking to the appellant until 10:00 or 10:30 p.m., and

did not take the formal videotaped statement until around midnight (RR. IV – 90-

91). He stated that he gave the appellant his legal warnings, and indeed the video

begins with Bolton stating, “I’m gonna read your rights to you like I did a little

earlier.” (St. Ex. 150). He testified that the delay in taking the formal interview

was an effort to build rapport with the appellant (RR. IV – 88).

      The appellant testified during the suppression hearing that the officers never

read him his legal warnings when they first started talking to him (RR. IV – 97-

98). The appellant further claimed that he repeatedly told the officers that he did

not want to talk to them (RR. IV – 99). He admitted that he knew his rights

because he had been placed in a homicide office once before (RR. IV – 99). But




                                         6
the trial court found that the appellant’s testimony was not credible (CR Supp. –

23-24).

      The appellant’s argument on appeal, and the basis for the lower court’s

reversal, was Missouri v. Seibert, 542 U.S. 600 (2004). See Vasquez, 2014 WL

7365945, *4 (citing Seibert and Carter v. State, 309 S.W.3d 31, 36–37 (Tex. Crim.

App. 2010)).    But the appellant’s two pre-trial motions to suppress made no

mention of Seibert or “midstream warnings” or a “two-step interrogation.” (CR –

54, 76). See Barfield v. State, 416 S.W.3d 743, 749 (Tex. App.—Houston [14th

Dist.] 2013, no pet.) (citing Batiste v. State, AP-76,600, 2013 WL 2424134, *16

(Tex. Crim. App. June 5, 2013) cert. denied, 134 S. Ct. 1000 (U.S. 2014) (“At trial,

appellant did not make any reference to Seibert, Carter, “two-step questioning,”

“question first, warn later,” or any other argument that might raise an issue under

Seibert.”)).

      It was not until closing argument at the suppression hearing, after the trial

court had already ruled on the briefed suppression issue, that the appellant first

mentioned a “two-step interview.” (RR. IV – 105).          Even at that point, the

appellant made no mention of Seibert, and it was clear that the trial court did not

understand the nature of the objection. Rather, the trial court believed that it was

merely another aspect of the briefed issue.




                                         7
      The focus of the written suppression motions was the voluntariness of the

appellant’s statement and the State’s compliance with Article 38.22 of the Code of

Criminal Procedure, which governs the admission of oral statements. See TEX.

CODE CRIM. PROC. art. 38.22 §3 (West 2010). The appellant began his closing

argument at the suppression hearing by citing Nguyen v. State, 292 S.W.3d 671

(Tex. Crim. App. 2009), which deals with Article 38.22 but makes no mention of

Seibert and is not a “midstream warnings” case (RR. IV – 104-105). The trial

court overruled the appellant’s complaint, and the appellant then claimed that it

was a “two-step interview.” (RR. IV – 105-106). The trial court responded,

            All right. Only the video statements are admissible. Statements
      that he made that were not videoed are not admissible in the State’s
      case in chief. But any statements that he made outside the video still
      could fall under, you know, 613 impeachment, in the event that he
      should testify. And then he could be impeached on inconsistency
      under 613. Otherwise, they don’t come in.

            All right. So, I guess what I’m doing is I’m granting your
      motion in part. All right. So, any statements that he makes outside the
      video, outside of the Miranda warnings that were stated on the video
      do not come in. I’m still leaving it open in the event that it might be
      inconsistent. It could come in for some other purpose.

(RR. IV – 106) (emphasis added). The trial prosecutor then confirmed that he only

intended to “introduce the officer, circumstances and play the video.” (RR. IV –

107) (emphasis added).

      Neither the trial court nor the trial prosecutor understood the nature of the

appellant’s new Seibert objection, which was being raised for the first time at the


                                        8
end of the suppression hearing. The trial court thought that the appellant’s “two-

step” objection referred to the fact that some of the interview was videotaped and

some of the interview was not because Article 38.22 requires that the entire

statement be recorded. See TEX. CODE CRIM. PROC. art. 38.22 §3 (West 2010).

      The trial court’s response focused on the videotape, which is crucial to an

Article 38.22 Section 3 challenge. See TEX. CODE CRIM. PROC. art. 38.22 §3 (West

2010) (“No oral or sign language statement of an accused made as a result of

custodial interrogation shall be admissible against the accused in a criminal

proceeding unless: (1) an electronic recording, which may include motion picture,

video tape, or other visual recording, is made of the statement.”). But the presence

of a videotape is irrelevant in a Seibert analysis. See Carter, 309 S.W.3d at 38

(“We therefore join numerous state and federal jurisdictions in adopting Justice

Kennedy’s concurrence in Seibert because it is narrower in scope than the plurality

opinion and applies only to two-step interrogations involving deliberate police

misconduct.”).

      Furthermore, the trial court believed that it was “granting [the] motion in

part,” which makes sense in the context of Article 38.22 but makes absolutely no

sense in the context of a Seibert motion. If there were a violation of Article 38.22,

then the trial court could suppress that portion of the statement that was

involuntary or that was not recorded. See, e.g., Resendez v. State, 256 S.W.3d 315,



                                         9
327 (Tex. App.—Houston [14th Dist.] 2007) rev’d on other grounds, 306 S.W.3d

308 (Tex. Crim. App. 2009) (“Because the interrogation of appellant was custodial

from the point after which appellant admitted he shot the complainant, the trial

court erred in denying appellant’s motion to suppress this part of appellant’s

statement based on appellant’s failure to receive the required warnings from the

law enforcement officers or waive his rights.”) (citing TEX. CRIM. PROC. CODE art.

38.22, § 3). But if there were a Seibert violation, then the entire statement should

be suppressed. Carter, 309 S.W.3d at 37 (“the interrogation technique used with

Seibert undermined the goals of Miranda and thus required suppression.”).

      The appellant did nothing to correct the trial court’s mistaken impression

concerning the nature of the second objection, and the trial prosecutor did not

recognize it as a veiled Seibert issue. Fortunately, the appellant cannot profit by

his failure to clarify the issue for the trial court. See TEX. R. APP. P. 33.1(a) (“As a

prerequisite to presenting a complaint for appellate review, the record must show

that: (1) the complaint was made to the trial court by a timely request, objection, or

motion that: (A) stated the grounds for the ruling that the complaining party sought

from the trial court with sufficient specificity to make the trial court aware of the

complaint, unless the specific grounds were apparent from the context…”)

(emphasis added).




                                          10
      In Phillips v. Bramlett, 288 S.W.3d 876, 882-83 (Tex. 2009), the defense

counsel objected to closing argument as follows: “Judge, I object to any testimony

about the propriety of other trials and the verdicts reached by other juries in

Lubbock.” The trial court responded: “This is his argument, and it is not

testimony.” The defense counsel did not offer any further explanation of his

objection, and the plaintiffs’ counsel thereafter continued to argue that the jury

needed to send a message to the doctors of Lubbock without further objection. The

Texas Supreme Court cited Rule 33.1 and agreed that “the asserted error was not

preserved because the trial court’s response indicated that it did not understand the

objection, and counsel made no further attempt to clarify the court’s understanding

or obtain a ruling on his objection.” Phillips, 288 S.W.3d at 883.

      In the present case, the appellant never referenced Seibert, Carter, “question

first, warn later,” or “mid-stream warnings” in either of his written motions to

suppress or at any time during the proceedings. See Batiste, 2013 WL 2424134,

*16 (“At trial, appellant did not make any reference to Seibert, Carter, “two-step

questioning,” “question first, warn later,” or any other argument that might raise an

issue under Seibert.”). He waited until after the trial court had overruled his

Article 38.22 argument to finally mention the term “two-step interview.” (RR. IV –

105). But the trial court’s response showed that it mistakenly believed that the

appellant was still objecting based on Article 38.22. Therefore, the appellant failed



                                         11
to object with sufficient specificity to make the trial court aware of the complaint,

and his sole point of error should have been overruled. See TEX. R. APP. P. 33.1(a);

Phillips, 288 S.W.3d at 883; Vasquez, 2014 WL 7365945, *16-18 (Frost, J.,

dissenting) (“Because appellant did not timely raise the ‘question first, warn later’

complaint, he failed to preserve error in the trial court, and this court may not

reverse the trial court’s judgment based on this complaint.”).

      Even if the appellant had properly preserved his appellate complaint, the

majority opinion nevertheless erred in finding a Seibert violation.       As stated

previously, the trial court made the factual finding that Padilla had given the

defendant his legal warnings prior to questioning and that any statements to the

contrary were not credible. (CR. Supp. – 23). The majority opinion erred in failing

to respect the trial court’s authority to make such findings. Maxwell v. State, 73

S.W.3d 278, 281 (Tex. Crim. App. 2002) (“At a suppression hearing, the trial

judge is the sole and exclusive trier of fact and judge of the credibility of the

witnesses and their testimony.”).

      The majority opinion also failed to respect the trial court’s discretion in

finding that “any delay in the administration of Miranda warnings was due to an

effort to build rapport with the defendant rather than to intentionally circumvent

the protections of Miranda.” (CR. Supp. – 25-26). The central question when

determining the admissibility of post-Miranda warning confessions made after



                                         12
Miranda violations is whether the evidence shows that the officer deliberately

employed a two-step “question first, warn later” interrogation technique to

circumvent the suspect’s Miranda protections. Carter v. State, 309 S.W.3d 31, 36–

37 (Tex. Crim. App. 2010). Because the question of whether the interrogating

officer deliberately employed such a technique “will invariably turn on the

credibility of the officer’s testimony in light of the totality of the circumstances

surrounding the interrogation,” a factual finding regarding the officer’s credibility

is entitled to “highly deferential review.” Id., 309 S.W.3d at 40.

      When a two-step questioning tactic has not been deliberately employed, “a

suspect who has once responded to unwarned yet uncoercive questioning is not

thereby disabled from waiving his rights and confessing after he has been given the

requisite Miranda warnings.” Oregon v. Elstad, 470 U.S. 298, 318 (1985). When

the first statement is unwarned but not coerced, the admissibility of any subsequent

statement turns on whether it is knowingly and voluntarily made. Id., 470 U.S. at

309; Carter, 309 S.W.3d at 32.

      In the present case, the only evidence that the appellant was subject to

custodial interrogation prior to receiving his legal warnings came from the

appellant’s mouth (RR. IV – 97-98). But the trial court explicitly disbelieved the

appellant’s testimony at the suppression hearing (CR. Supp. 23-24). See Guzman,

955 S.W.2d at 89; Ervin, 333 S.W.3d at 213–14 (“Because the trial court found



                                          13
credible the officers’ testimony that appellant was not in custody ... even if the

officers erred in their belief that she was not in custody, that error does not amount

to a deliberate tactic to circumvent Miranda.”).

      The majority opinion concluded, contrary to the trial court’s findings, that

the fact that the appellant was in custody and gave both statements to officers at a

police station “indicates that the absence of Miranda warnings before the

beginning of the interrogation process was not a mistake but rather a conscious

choice.” Vasquez, 2014 WL 7365945, at *11. But as this Court has related, “the

trial judge’s assessment of the interrogating officer’s subjective intent is especially

important under Justice Kennedy’s approach in Seibert…We therefore adopt the

position of those federal and state courts that have applied a highly deferential

review—similar to our Guzman standard—of the question of an officer’s

subjective ‘deliberateness’ in the ‘question first, warn later’ context.” Carter, 309

S.W.3d at 40.

      In Seibert, the interrogating officer testified at the suppression hearing that

he made a “conscious decision” to withhold Miranda warnings, thus resorting to an

interrogation technique he had been taught: question first, then give the warnings,

and then repeat the question “until I get the answer that she’s already provided

once.” Seibert, 542 U.S. at 605-06. That was sufficient to show a deliberate intent

to circumvent the protections of Miranda. Id.



                                          14
      In the present case, Detective Bolton testified that the delay in taking the

appellant’s formal interview was an effort to build rapport with the appellant (RR.

IV – 88). He stated that, ““sometimes it’s like hours, you know, just to get – to

build rapport with the individual. You know, we talk to them about a number of

things, about family.” (RR. IV – 88). Furthermore, the trial court explicitly found

that “any delay in the administration of Miranda warnings was due to an effort to

build rapport with the defendant rather than to intentionally circumvent the

protections of Miranda.” (CR. Supp. – 25-26).             Therefore, any delay in

administering legal warnings to the appellant in the present case was due to

permissible rapport-building rather than to the impermissible activity of Seibert.

See, e.g., People v. Delatorre, B230591, 2012 WL 909659, *5 (Cal. Ct. App. Mar.

19, 2012) (finding no Seibert violation where officer testified that the

“conversation began, we began talking, a rapport was built, and it wasn’t until

some facts started to come out that I realized I had forgotten to Miranda.”); State v.

Hughes, 272 S.W.3d 246, 255 (Mo. Ct. App. 2008) (finding no Seibert violation

where officers’ pre-waiver questioning was to build a rapport). The trial court’s

ruling should have been upheld.

      Finally, even if the majority opinion below were correct on the Seibert

violation, it nevertheless erred in determining that the appellant was harmed by the

admission of his statement.       The evidence supporting the appellant’s guilt,



                                         15
independent of his recorded statement, was overwhelming.           Both Gallo and

Ollevera testified that the appellant was at Martinez’s house shortly after the

murder, and the appellant was bragging about having shot and killed two people

for a bag of weed (RR. III – 204-205, 211, 214, 219, 261, 266-268, 305) (RR. IV –

34-35). The appellant was holding a bag of marijuana; he showed it to Gallo and

did not appear to be remorseful over the murders (RR. III – 211, 223, 269, 272).

Furthermore, the appellant fled from the police who were investigating these

murders (RR. IV – 70-71). Finally, even the appellant’s own witness admitted that

the appellant had taken the marijuana from Nguyen and Lobos (RR. V – 49-50).

Thus, it is unlikely that the admission of the appellant’s videotaped statement had

more than a slight effect on the jury’s verdict, and the majority opinion below erred

in holding otherwise.




                                         16
                             PRAYER FOR RELIEF

      It is respectfully requested that this petition should be granted and that the

majority opinion of the court of appeals should be reversed.

                                                  DEVON ANDERSON
                                                  District Attorney
                                                  Harris County, Texas

                                                  /s/ Eric Kugler
                                                  ERIC KUGLER
                                                  Assistant District Attorney
                                                  Harris County, Texas
                                                  1201 Franklin, Suite 600
                                                  Houston, Texas 77002
                                                  (713) 755-5826
                                                  kugler_eric@dao.hctx.net
                                                  TBC No. 796910




                                          17
             CERTIFICATE OF SERVICE AND COMPLIANCE

        This is to certify that: (a) the word count function of the computer program
used to prepare this document reports that there are 3,765 words in the relevant
sections; and (b) a copy of the foregoing instrument will be served by
efile.txcourts.gov to:

      Mark Kratovil                       Lisa McMinn
      Assistant Public Defender           State Prosecuting Attorney
      Harris County, Texas                P.O. Box 13046
      1201 Franklin, 13th Floor           Austin, Texas 78711
      Houston, Texas 77002


                                                /s/ Eric Kugler
                                                ERIC KUGLER
                                                Assistant District Attorney
                                                Harris County, Texas
                                                1201 Franklin, Suite 600
                                                Houston, Texas 77002
                                                (713) 755-5826
                                                TBC No. 796910

Date: January 22, 2015




                                        18
19
                       Appendix A

                    Vasquez v. State,
           14-12-00096-CR, 2014 WL 7365945
(Tex. App.—Houston [14th Dist.] Dec. 23, 2014, pet. filed))
                                                                   Officers chased, apprehended, and handcuffed appellant
                2014 WL 7365945
  Only the Westlaw citation is currently available.                at a gas station, placed him in a squad car, and transported
                                                                   him to the police station for questioning. Another suspect
     NOTICE: THIS OPINION HAS NOT BEEN                             named Martinez had been with appellant and was arrested
     RELEASED FOR PUBLICATION IN THE                               at the same time. Officers placed appellant in an interview
PERMANENT LAW REPORTS. UNTIL RELEASED,                             room, where he remained for nearly eight hours while
IT IS SUBJECT TO REVISION OR WITHDRAWAL.                           being interrogated by three or four investigating officers,
             MAJORITY OPINION                                      including Officers Padilla and Evans. The officer who last
           Court of Appeals of Texas,                              questioned appellant, Officer Bolton, ultimately obtained
              Houston (14th Dist.                                  a confession that was not captured on videotape. Soon
                                                                   thereafter, Bolton asked permission to videotape
           Jose Vasquez, Appellant                                 appellant’s confession. Appellant complied with the
                        v.                                         request and repeated his confession.2
          The State of Texas, Appellee
 NO. 14–12–00096–CR | Opinions filed December                      Appellant filed a written pretrial motion to suppress his
                    23, 2014                                       confession on grounds that he was not given Miranda3
                                                                   warnings and he did not validly waive his rights before he
On Appeal from the 228th District Court, Harris                    confessed. Appellant subsequently filed another pretrial
County, Texas, Trial Court Cause No. 1333231                       motion to suppress his oral statements on the sole ground
                                                                   that using the oral statements at trial would be prohibited
Attorneys and Law Firms                                            by Texas Code of Criminal Procedure article 38.22,
Eric Kugler, for State Bar of Texas.                               section 3.4 The trial court carried the motions with trial
                                                                   and held a hearing outside the presence of the jury to
Mark Kratovil, for Jose Vasquez.                                   determine the admissibility of the statements.
Panel consists of Chief Justice Frost and Justices
                                                                   *2 At the hearing, only Bolton testified. He testified as
Christopher and Jamison.
                                                                   follows:

                                                                        [Defense counsel:] And when you got involved ...
                                                                        Padilla ... and Evans had been going back and forth
                                                                        interviewing ... Martinez and [appellant], correct?
                 MAJORITY OPINION
                                                                        [Bolton:] I believe they were interviewing the two
Martha Hill Jamison, Justice                                            defendants in the case. And also I think there was a
*1 Appellant Jose Vasquez appeals his conviction for                    witness that they interviewed.
capital murder. After the jury found him guilty, the trial
court assessed punishment at life in prison. On appeal, we              [Defense counsel:] ... And you were in ... a room
held the trial court erred in admitting appellant’s                     where you could look inside while they were talking
videotaped confession and such error was harmful,                       to [appellant].
reversed appellant’s conviction, and remanded the case to
                                                                        [Bolton:] Yes, sir.
the trial court. The Court of Criminal Appeals granted the
State’s petition for review, vacated our judgment, and                  [Defense counsel:] And you could hear what Evans
remanded the case to our court with instructions to                     and Padilla [were] telling them.... You could ... see
remand the case to the trial court for findings of fact and             them and hear ... ?
conclusions of law.1 The trial court rendered findings of
fact. Appellant reasserts his complaint that the trial court            [Bolton:] Both
erred in denying appellant’s motion to suppress the
videotaped confession he made to an investigating officer               [Defense counsel:] And when any other officers read
during custodial interrogation. Appellant argues that his               them their Miranda warnings, you don’t know or if
statement was obtained by an impermissible two-step                     they were read at all ‘cause you weren’t there?
interrogation technique. We again reverse the trial court’s
judgment and remand for a new trial.                                    [Bolton:] Yes, I was there. I was in the monitoring
                                                                        room. When [Evans and Padilla] entered the room,
                                                                        you know, they read [appellant]—and when they
                                                                        interviewed ... Martinez, they also read him his legal
                                                                        warnings as well.
                     Background
On April 16, 2010, appellant was arrested pursuant to a                 [Defense counsel:] ... [W]here was [appellant]
warrant and charged with two counts of capital murder.                  located when you saw Evans and Padilla talking to

                                                               2
    him?                                                           (Emphasis added). Bolton did not clarify what he meant
                                                                   by “at the end.”
    [Bolton:] ... I was not present when ... Padilla talked
    to [appellant]. I was in an interview room talking to          At the beginning of the videotape recording, Bolton
    ... Martinez. I was conducting an interview there              stated, “I’m going to read your rights to you like I did a
    while ... Padilla was speaking to [appellant]. So, I           little earlier,” but he did not indicate on the videotape or
    was not present when he spoke to him, you know....             in his testimony whether the “earlier” reading of his rights
                                                                   occurred before or after the previous confession had been
    [Defense counsel:] ... [Y]ou stayed in the little              made. Bolton further testified that appellant never
    anteroom listening to somebody talking to                      invoked his rights to remain silent or have counsel
    [appellant] for a while. How long did you stay in              present.
    there and listen to that?
                                                                   *3 Appellant testified he invoked his right to remain silent
    [Bolton:] ... I didn’t watch that interview. While ...         before custodial interrogation began and no officer gave
    Padilla or ... Evans, either one, was interviewing             him Miranda warnings until after he confessed off-
    [appellant] ... I was interviewing ... Martinez.               camera. The trial court suppressed the statements that
                                                                   were not captured on videotape but admitted the
    [Defense counsel:] Okay. So what ... they said and
                                                                   videotaped confession.
    what they did, you don’t know other than what they
    told you he was saying.
                                                                   On appeal, we concluded that the State did not meet its
    [Bolton:] Yes, sir....                                         burden to present evidence that (1) officers read appellant
                                                                   his Miranda rights before appellant made off-camera
    [Defense counsel:] And then eventually you decided             incriminating statements; and (2) officers did not employ
    to go talk to [appellant].                                     a two-step interrogation technique in a deliberate,
                                                                   calculated way to undermine Miranda warnings or take
    [Bolton:] After [I] interview[ed] Martinez, ... Padilla        curative measures to ensure appellant would understand
    had already concluded whatever interview he had                the import and effect of the Miranda warning and waiver.
    with [appellant].... And [Padilla] asked me ... to talk        Vasquez v. State, 397 S.W.3d 850, 854–58 (Tex.App.—
    to [appellant]. So, at that time I went to the interview       Houston [14th Dist.] 2013), vacated, 411 S.W.3d 918
    room and ... began the interview with [appellant].             (Tex.Crim.App.2013). We held that the trial court erred in
                                                                   admitting appellant’s videotaped statement and such error
Bolton testified that he gave appellant Miranda warnings,          was harmful. Id. at 858–59. We reversed the trial court’s
as reflected on the videotape, but did not testify that he         judgment and remanded the case for a new trial. Id. at
had previously done so before appellant confessed off-             859.
camera:
                                                                   The Court of Criminal Appeals ordered the trial court to
    [Prosecutor:] ... Did you advise him of his legal              determine on remand: (1) whether the original,
    rights and warnings?                                           unrecorded interview was custodial in nature; (2) whether
                                                                   appellant was Mirandized prior to his original
    [Bolton:] Yes, sir, I did.                                     interrogation; (3) if not, whether the police deliberately
                                                                   employed a two-step interrogation process; and (4) if they
    [Prosecutor:] Did he appear—did you go through                 did, whether any curative measures were taken before the
    each individual legal right and warning with him?              second confession. Vasquez, 411 S.W.3d at 920. The trial
                                                                   court made the following findings of fact, in relevant part,
    [Bolton:] Yes, sir, I did.                                     expressly “based upon the reporter’s record in this case
                                                                   and based upon th[e] Court’s evaluation of the witnesses’
    [Prosecutor:] Did he appear to understand each
                                                                   testimony and credibility”5:
    individual legal right and warning?
                                                                        • Detective Bolton credibly stated that he gave the
    [Bolton:] Yes, he did.
                                                                        defendant his legal warnings, and that the defendant
    [Prosecutor:] Did he waive each individual legal                    waived his rights prior to giving the statements, all of
    right and warning that you gave him?                                which is reflected on the video.

    [Bolton:] Yes, sir, at the end.                                     • Bolton credibly testified that his partner,
                                                                        Investigator Padilla, had interviewed the defendant
    [Prosecutor:] ... And did he agree to speak with you                prior to the formal statement and that Bolton had
    having waived those rights?                                         monitored the interview.

    [Bolton:] Yes, sir, he did.                                         • Bolton credibly testified that Padilla had given the

                                                               3
    defendant his legal warnings prior to questioning            officers interrogating a suspect and obtaining a confession
    him.                                                         without first providing Miranda warnings; then, after the
                                                                 inculpatory statements are made, officers provide
    • [A]ny statements indicating that Padilla had not           Miranda warnings and obtain a waiver of the warnings.
    given the defendant his legal warnings prior to              See Seibert, 542 U.S. at 604–05, 124 S.Ct. 2601. Officers
    questioning him are not credible.                            then have the suspect repeat the inculpatory statements in
                                                                 an attempt to cure the lack of Miranda warnings.6 See id.
    • [T]he defendant was not credible when he testified         at 605, 124 S.Ct. 2601.
    during the suppression hearing that the officers never
    read him his legal warnings when they first started          In reviewing a trial court’s ruling on a motion to suppress,
    talking to him.                                              appellate courts must view all of the evidence in the light
                                                                 most favorable to the ruling. State v. Garcia–Cantu, 253
    • [T]he defendant was not credible when he claimed           S.W.3d 236, 241 (Tex.Crim.App.2008). At a suppression
    that he repeatedly told the officers that he did not         hearing, the trial judge is the sole factfinder. St. George v.
    want to talk to them.                                        State, 237 S.W.3d 720, 725 (Tex.Crim.App.2007). We
                                                                 give almost total deference to a trial court’s express
    • Bolton credibly testified that the delay in taking a
                                                                 determination of historical facts when supported by the
    formal interview of the defendant was due to an
                                                                 record. State v. Dixon, 206 S.W.3d 587, 590
    effort to build rapport with the defendant.
                                                                 (Tex.Crim.App.2006); State v. Ross, 32 S.W.3d 853, 855–
    • [T]he defendant’s original, unrecorded interview           56 (Tex.Crim.App.2000). The same deference is accorded
    was custodial in nature.                                     to determinations of mixed questions of law and fact if
                                                                 their resolution depends upon witness credibility and
    • [T]he defendant was Mirandized prior to his                demeanor. Ross, 32 S.W.3d at 856.
    original interrogation.
    • [E]ven if the defendant had not been Mirandized            Issues that present purely legal questions are considered
    prior to his original interrogation, there was no            under a de novo standard. Dixon, 206 S.W.3d at 590;
    evidence that the police deliberately employed a             Ross, 32 S.W.3d at 856. We will sustain the trial court’s
    two-step interrogation process in order to circumvent        ruling if it is reasonably supported by the record and is
    the protections of Miranda and [there was evidence]          correct on any theory of law applicable to the case.
    that the police did not deliberately employ such a           Villarreal v. State, 935 S.W.2d 134, 138
    two-step interrogation process. Rather, any delay in         (Tex.Crim.App.1996). In this connection, when the trial
    the administration of Miranda warnings was due to            court files findings of fact with its ruling on a motion to
    an effort to build rapport with the defendant rather         suppress, we do not engage in our own factual review, but
    than to intentionally circumvent the protections of          determine only whether the record supports the trial
    Miranda.                                                     court’s fact findings. Paolilla v. State, 342 S.W.3d 783,
                                                                 792 (Tex.App.—Houston [14th Dist.] 2011, pet. ref’d).
    *4 • [C]urative measures were taken before the
    second confession by the following procedures: (1)           Under Miranda and article 38.22 of the Code of Criminal
    there was minimal reference to the original                  Procedure, an oral statement of an accused made as a
    interrogation in the defendant’s recorded statement,         result of custodial interrogation is not admissible at trial
    (2) different officers conducted the two interviews,         unless the accused was warned of his rights and
    (3) a substantial amount of time elapsed between the         knowingly, intelligently, and voluntarily waived those
    original interrogation at 5:15 p.m. and the formal           rights. Miranda v. Arizona, 384 U.S. 436, 478–79, 86
    recorded statement after midnight, and (4) Miranda           S.Ct. 1602, 16 L.Ed.2d 694 (1966); Tex. Code Crim.
    warnings were again given and waived prior to the            Proc. art. 38.22 § 3. If the record shows the warnings
    second statement, which was recorded.                        were received and understood by the accused and he did
                                                                 not invoke his rights, the accused waives the right to
                                                                 remain silent by making an uncoerced statement to the
                                                                 police. Umana v. State, 447 S.W.3d 346, ––––, 2014 WL
                                                                 4199116, at *7 (Tex.App.—Houston [14th Dist.] Aug. 26,
                       Discussion                                2014, pet. filed). We review the totality of the
In his sole issue, appellant argues the trial court              circumstances as reflected in the record to determine
erroneously admitted the videotaped confession because it        whether the trial court’s finding or conclusion that an
was obtained by an improper two-step “question first,            accused voluntarily waived his rights finds support in the
warn later” interrogation technique. See Missouri v.             record. Id. at –––– – ––––, at *8–9.
Seibert, 542 U.S. 600, 622, 124 S.Ct. 2601, 159 L.Ed.2d
643 (2003) (Kennedy, J., concurring); Carter v. State, 309       *5 In the plurality opinion Missouri v. Seibert, four
S.W.3d 31, 35–36 (Tex.Crim.App.2010). A “question                justices of the Supreme Court concluded that a “question
first, warn later” interrogation technique consists of           first, warn later” interrogation technique circumvented the

                                                             4
objective of Miranda by rendering any warnings given                              a statement.
ineffective. Seibert, 542 U.S. at 611–13, 124 S.Ct. 2601;
see also Martinez v. State, 272 S.W.3d 615, 619–20                    In his second motion to suppress, appellant contended that
(Tex.Crim.App.2008). The Seibert plurality found that the             he “may have made oral statements after his arrest and the
purpose of this interrogation technique was to obtain a               use of [such statements] is prohibited by the Texas Code
confession the suspect may not have made if he had                    of Criminal Procedure, Article 38.22, Section 3.” Under
understood his rights at the outset. Seibert, 542 U.S. at             article 38.22, unrecorded statements of an accused
611, 124 S.Ct. 2601. In his concurring opinion in Seibert,            obtained through custodial interrogation are not
Justice Kennedy determined that when a two-step                       admissible in a criminal proceeding. Tex.Code Crim.
interrogation technique is used in a deliberate, calculated           Proc. art. 38.22 § 3. Recorded statements are admissible
way to undermine Miranda warnings, absent “curative                   only if the voices on the recording are identified. Id. art.
measures,” the post-warning statements must be excluded.              38.22 § 3(a)(4).
Seibert, 542 U.S. at 622, 124 S.Ct. 2601 (Kennedy, J.,
concurring). In Carter, the Court of Criminal Appeals                 We agree that the focus of the second motion to suppress
expressly adopted Justice Kennedy’s concurrence in                    was on the admissibility of appellant’s unrecorded
Seibert. Carter, 309 S.W.3d at 38.                                    statements under article 38.22. However, the first motion
                                                                      was focused on the voluntariness of appellant’s statement,
                                                                      purportedly taken after officers did not give appellant
                                                                      Miranda warnings, “persistently and coercively
I. Issue Preserved for Appellate Review                               interviewed him[,] wore down his resistance[,] and
The State filed a supplemental brief, arguing for the first           force[d] him to make a statement.”7
time on remand that appellant did not preserve error on
his appellate issue because neither of his two pretrial               *6 At the suppression hearing, Bolton testified he
motions to suppress mentioned “Seibert or ‘midstream                  Mirandized appellant “at the end” before recording his
warnings’ or a ‘two-step interrogation’ ” and appellant’s             statement. Thus, the issue regarding voluntariness of
counsel did not mention a “two-step interview” until                  appellant’s confession in the context of midstream
closing argument at the suppression hearing. The State                warnings was before the trial court. Also at the close of
contends that the focus of the suppression motions was                the hearing, appellant’s counsel asserted the recorded
the “voluntariness of the appellant’s statement and the               statement was inadmissible under article 38.22, section 3
State’s compliance with Article 38.22 of the Code of                  because the voices on the recording were not identified,
Criminal Procedure, which governs the admission of oral               but he then presented a second argument:
statements.”
                                                                                  And my next approach ... is I’m
To preserve an issue for appellate review, a defendant                            contending this is a two-step
must first raise that issue in the trial court. Tex. R. App. P.                   interview.... And once they got him
33.1(a). Eschewing hyper-technical requirements for
                                                                                  to say what they wanted him to say,
preservation, the Court of Criminal Appeals stated, “[A]ll
                                                                                  they took him in and videoed him
a party has to do to avoid the forfeiture of a complaint on
                                                                                  and gave his Miranda warning and
appeal is to let the trial judge know what he wants, why
                                                                                  he told the story again. And I’m
he thinks himself entitled to it, and to do so clearly                            suggesting under the existing case
enough for the judge to understand him at a time when the                         law, that’s illegal and the statement
trial court is in a proper position to do something about
                                                                                  should be suppressed.
it.” Lankston v. State, 827 S.W.2d 907, 909
(Tex.Crim.App.1992); see also Bedolla v. State, 442
                                                                      The trial court suppressed the unrecorded statements but
S.W.3d 313, 316 (Tex.Crim.App.2014).
                                                                      not the video statement.
In his first motion to suppress, appellant asserted that his:
                                                                      Terms such as “two-step questioning,” “two-step
                                                                      interrogation technique,” and “two-step question first,
             confession was involuntary and
                                                                      warn later” all refer to the practice of obtaining a
             was coerced and enticed from
                                                                      confession and then giving Miranda warnings midstream
             [appellant].     [Appellant]    was
                                                                      during an interview of a suspect. See, e.g., Carter, 309
             arrested around 11 a.m. and he
                                                                      S.W.3d at 37 (referencing “two-step interrogation
             didn’t give a video statement until                      technique,” “two-step strategy,” and “two-step, ‘question
             almost twelve hours later. He was                        first, warn later’ strategy” as potential violations of a
             not given his Miranda warnings
                                                                      suspect’s Miranda protections). As set forth above, this
             and had requested an attorney. The
                                                                      interrogation technique is improper when employed in a
             officers persistently and coercively
                                                                      deliberate, calculated way to undermine Miranda
             interviewed him and wore down his
                                                                      warnings, absent curative measures. Id. at 37–38. We
             resistance and force[d] him to make                      conclude appellant’s references to “two-step interview”
                                                                  5
and officers’ Mirandizing appellant only after “they got                 given the defendant his legal warnings prior to
him to say what they wanted him to say” sufficiently                     questioning him are not credible.
apprised the trial court of appellant’s objection that police
violated his Miranda protections by employing an                         • [T]he defendant was not credible when he testified
improper two-step interrogation technique.8                              during the suppression hearing that the officers never
                                                                         read him his legal warnings when they first started
Moreover, the trial court’s findings are directed toward                 talking to him.
the issues relevant to a Seibert challenge. The trial court
found appellant was Mirandized before his original                       • [T]he defendant was Mirandized prior to his
interrogation, there was no evidence the police                          original interrogation.
deliberately employed a two-step interrogation process in
order to circumvent the protections of Miranda, and                 We shall analyze these findings to determine whether they
curative measures were taken by the officers.9 See Carter,          are supported by the record.
309 S.W.3d at 37–38.
                                                                    Warnings by Bolton. Bolton did not testify that he
We conclude appellant’s objection was clear enough for              Mirandized appellant before appellant made off-camera
the trial court to understand the Seibert objection because         incriminating statements. On the video, Bolton stated,
appellant raised the issue of voluntariness in his first            “I’m going to read your rights to you like I did a little
suppression motion and objected at the hearing to the               earlier.” However, he did not testify or otherwise indicate
officers’ purported “two-step interview” and the trial              on the video that he had done so before appellant
court’s findings were directed toward the Seibert                   confessed off-camera. In fact, he testified that appellant
challenge. Accordingly, appellant preserved the issue for           waived his Miranda rights “at the end,” but he did not
our review.                                                         explain what he meant by that phrase. We conclude the
                                                                    trial court’s finding that “Bolton credibly stated that he
                                                                    gave the defendant his legal warnings” is supported by the
                                                                    record. But the finding that “Bolton credibly stated that ...
II. No evidence that officers read appellant his                    the defendant waived his rights prior to giving the
Miranda warnings before appellant made off-camera                   statements, all of which is reflected on the video” is not
incriminating statements                                            supported by the record (emphasis added).
The State, as the proponent of the evidence of appellant’s
confession, bears the burden of establishing its                    Evans’ and Padilla’s Interview of Appellant. Bolton
admissibility. See Martinez, 272 S.W.3d at 623 (citing              testified that he did not monitor Evans’ or Padilla’s
Tex. R. Evid. 104(a), De la Paz v. State, 273 S.W.3d 671,           interview of appellant. As set forth above, the following
680 (Tex.Crim.App.2008), and Cofield v. State, 891                  exchange occurred upon defense counsel’s cross-
S.W.2d 952, 954 (Tex.Crim.App.1994)). It is also the                examination of Bolton:
State’s burden to establish a valid waiver of Miranda
rights by a preponderance of the evidence. See id. at 619                [Defense counsel:] ... [W]here was [appellant]
n. 10; see also Seibert, 542 U.S. at 608 n. 1, 124 S.Ct.                 located when you saw Evans and Padilla talking to
2601 (“The prosecution bears the burden of proving, at                   him?
least by a preponderance of the evidence, the Miranda
                                                                         [Bolton:] ... I was not present when ... Padilla talked
waiver.”).
                                                                         to [appellant]. I was in an interview room talking to
                                                                         ... Martinez. I was conducting an interview there
*7 The trial court made the following findings relevant to
                                                                         while ... Padilla was speaking to [appellant]. So, I
this issue:
                                                                         was not present when he spoke to him, you know....
     • Detective Bolton credibly stated that he gave the
                                                                         [Defense counsel:] ... [Y]ou stayed in the little
     defendant his legal warnings, and that the defendant
                                                                         anteroom listening to somebody talking to
     waived his rights prior to giving the statements, all of
                                                                         [appellant] for a while. How long did you stay in
     which is reflected on the video.
                                                                         there and listen to that?
     • Bolton credibly testified that his partner,
                                                                         [Bolton:] ... I didn’t watch that interview. While ...
     Investigator Padilla, had interviewed the defendant
                                                                         Padilla or ... Evans, either one, was interviewing
     prior to the formal statement and that Bolton had
                                                                         [appellant] ... I was interviewing ... Martinez.
     monitored the interview.
                                                                         [Defense counsel:] Okay. So what ... they said and
     • Bolton credibly testified that Padilla had given the
                                                                         what they did, you don’t know other than what they
     defendant his legal warnings prior to questioning
                                                                         told you he was saying.
     him.
                                                                         [Bolton:] Yes, sir....
     • [A]ny statements indicating that Padilla had not
                                                                6
Accordingly, the trial court’s finding that “Bolton               that the officers never read him his legal warnings when
credibly testified that ... Padilla ... had interviewed the       they first started talking to him,” the trial court was
defendant prior to the formal statement and that Bolton           allowed to disbelieve appellant’s testimony on these
had monitored the interview” is not supported by the              points. See Amador, 275 S.W.3d at 878. However, the
record.                                                           State was still required to meet its burden to show
                                                                  appellant received Miranda warnings before making the
*8 Bolton had testified, however, as follows: “I was in the       off-camera incriminating statements, which it failed to do.
monitoring room. When [Evans and Padilla] entered the             See Martinez, 272 S.W.3d at 619 n. 10.
room, you know, they read [appellant]—and when they
interviewed ... Martinez, they also read him his legal            We conclude the trial court’s finding that appellant
warnings.” This testimony is unclear and inconsistent             received his Miranda warnings before making
with Bolton’s later testimony clarifying that he did not          incriminating statements is not supported by the record.
monitor appellant’s interview.                                    To the contrary, the State failed to present evidence that
                                                                  appellant received such warnings. Therefore, we must
The trial court is the sole factfinder at a suppression           address whether the State established that it did not
hearing and may believe or disbelieve some or all of a            employ a two-step interrogation technique in a deliberate
witness’s testimony. Amador v. State, 275 S.W.3d 872,             way to undermine appellant’s Miranda protections.
878 (Tex.Crim.App.2009). However, the trial court’s
account of the evidence must be plausible in light of the
record viewed in its entirety and must be reasonably
supported by the evidence. See id. at 878–80 (concluding,         III. No evidence that the two-step interrogation
after considering facts “taken as a whole” and reasonable         technique was not deliberately employed
inferences therefrom that the State carried its burden to         *9 Courts should determine “whether the evidence shows
show warrantless arrest was supported by probable                 that [the interrogating officer] deliberately employed a
cause); see also Miller v. State, 393 S.W.3d 255, 263             two-step ‘question-first, warn later’ interrogation
(Tex.Crim.App.2012) (“[A]ny trial-court findings                  technique to circumvent [the] appellant’s Miranda
inconsistent with ... conclusive evidence may be                  protections.” Carter, 309 S.W.3d at 38; Ervin v. State,
disregarded as unsupported by the record, even when that          333 S.W.3d 187, 213 (Tex.App.—Houston [1st Dist.]
record is viewed in a light most favorable to the trial           2010, pet. ref d). Because the “question of whether the
court’s ruling.”); Carmouche v. State, 10 S.W.3d 323,             interrogating officer deliberately withheld Miranda
332–33 (Tex.Crim.App.2000) (concluding trial court’s              warnings will invariably turn on the credibility of the
finding that defendant voluntarily consented to search was        officer’s testimony in light of the totality of the
not supported by record when “indisputable” video                 circumstances surrounding the interrogation,” a factual
evidence contradicted essential portions of ranger’s              finding regarding the officer’s credibility is entitled to
testimony).                                                       deference on appeal and is reviewed only for clear error.11
                                                                  Carter, 309 S.W.3d at 39; Ervin, 333 S.W.3d at 213.
Although Bolton initially stated that Evans and Padilla
Mirandized appellant, Bolton clarified he was not present         The following findings by the trial court are relevant to
when Evans and Padilla interviewed appellant. Bolton              this issue:
further testified he was not present when appellant was
arrested at 2:00 p.m. Bolton had been asked to assist in               • [T]he defendant was not credible when he claimed
the interrogation around 5:15 p.m. and could “really just              that he repeatedly told the officers that he did not
testify to anything that happened after 5:15.” Bolton                  want to talk to them.
testified he interviewed another suspect and did not begin
interviewing appellant until 10:00 or 10:30 p.m. Thus, he              • Bolton credibly testified that the delay in taking a
was not aware of what transpired with appellant from                   formal interview of the defendant was due to an
2:00 p.m. until he started his interview at 10:00 or 10:30             effort to build rapport with the defendant.
p.m. Reviewing the entirety of Bolton’s testimony, we                  • [E]ven if the defendant had not been Mirandized
conclude the trial court’s findings that “Bolton credibly              prior to his original interrogation, there was no
testified that Padilla had given the defendant his legal               evidence that the police deliberately employed a
warnings prior to questioning him” and appellant “was                  two-step interrogation process in order to circumvent
Mirandized prior to his original interrogation” are not                the protections of Miranda and [there was evidence]
plausible or reasonably supported by the evidence.                     that the police did not deliberately employ such a
                                                                       two-step interrogation process. Rather, any delay in
Appellant’s Testimony. With regard to the other two                    the administration of Miranda warnings was due to
findings, that “any statements indicating that Padilla had             an effort to build rapport with the defendant than to
not given the defendant his legal warnings prior to                    intentionally circumvent the protections of Miranda.
questioning him are not credible”10 and appellant “was not
                                                                  We may set aside these findings only if they are clearly
credible when he testified during the suppression hearing
                                                                  erroneous. See Carter, 309 S.W.3d at 39–41; McCulley v.
                                                              7
State, 352 S.W.3d 107, 118 (Tex.App.—Fort Worth 2011,                             interrogating officers’ mistaken
pet. ref’d).                                                                      belief that [the defendant] was not
                                                                                  in custody, but rather a conscious
In Martinez, the Court of Criminal Appeals held that the                          choice.
State has the burden of proving that a two-step
interrogation technique was not deliberately employed in            Id. at 624.
light of the State’s burden to show a confession is
admissible. 272 S.W.3d at 623–24. No other Texas cases              In his concurrence, Judge Price stated, “I do not know
have addressed this issue directly.12 In Martinez, police           whether [the State’s] burden should extend to disproving
officers questioned the defendant about a robbery and               circumstances that precede the Miranda warnings that
murder before the defendant was given Miranda                       might suffice, in contemplation of Seibert, to call the
warnings. Id. at 618. Thereafter, a polygraph test was              efficacy of those warnings into doubt.” Id. at 628 (Price,
administered to the defendant, which took three to four             J., concurring). But he noted without regard to which
hours. Id. The questions asked during the polygraph test            party carried the burden, the defendant “prove[d]
were not in the record. Id. After the polygraph test, an            circumstances that would impugn the efficacy of
officer informed the defendant that he had failed the test.         otherwise valid Miranda warnings.” Id. Despite these
Id. Appellant was then taken to municipal court, where a            statements and other statements that appear to conflict
magistrate read him his Miranda warnings. Id. Upon his              with the analysis in the opinion authored by Judge
return to the police station, an officer again read appellant       Johnson, Judge Price joined Judge Johnson’s opinion,
his Miranda warnings, and appellant was again                       making it a five-judge majority opinion of the court. See
questioned about the robbery and murder. Id. Appellant              id. at 617 (noting that Judge Price joins Judge Johnson’s
then gave incriminating statements on videotape. Id. The            opinion); Id. at 630 (Price, J., concurring) (stating that
State argued appellant had the burden of producing an               Judge Price joins Judge Johnson’s opinion).
adequate record regarding what questions were asked
during the polygraph test and any unwarned                          Justice Hervey dissented, and three justices joined her
conversations. Id. at 623.                                          dissent. She stated she would require the defendant to
                                                                    present a sufficient record showing a police officer
*10 The Court of Criminal Appeals noted,                            deliberately employed the two-step questioning tactic. Id.
                                                                    at 631 (Hervey, J., dissenting). She cited cases that stand
             When      the    officers    initially                 for the proposition that it is the defendant’s burden to
             questioned [the defendant] at the                      prove his statements were the result of custodial
             police station without giving him                      interrogation and then the burden shifts to the State to
             Miranda warnings, they violated                        defeat the defendant’s claim. Id. at 643. Here, it is
             [the defendant’s] constitutional                       undisputed that appellant was in custody when he made
             rights. At the suppression hearing,                    his statements. He had been arrested pursuant to a valid
             the state failed to provide the                        arrest warrant.
             polygrapher’s name, the questions
             used     during    the     polygraph                   As in Martinez, the record in this case also is
             examination, or the content of the                     incomplete.13 Neither Evans nor Padilla testified. There is
             initial   interrogation    of     [the                 no evidence of what transpired before Bolton began his
             defendant], all of which are under                     interrogation at 10 or 10:30 p.m. Appellant confessed, and
             the exclusive control of the state.                    the officer “came out of the video room ... and told [the
                                                                    other officers] that [appellant] had confessed” and “we
Id. at 623–24.                                                      need to get it on video.” A few minutes later, at “about
                                                                    midnight,” Bolton reentered the interrogation room,
In holding that appellant’s videotaped statement was                started the recording, and read appellant his Miranda
inadmissible, the court further noted,                              warnings. Although Bolton stated on the video that he
                                                                    read appellant his Miranda warnings “a little earlier,” no
             Here, [the defendant] was in                           evidence shows when this occurred and thus whether it
             custody for the purposes of                            occurred before appellant made any incriminating
             Miranda; he gave both statements                       statements off-camera. On the video, appellant repeats
             to law-enforcement officials after                     earlier unrecorded statements, which are not in the record,
             his formal arrest pursuant to an                       but Bolton refers to them numerous times during the
             arrest warrant, and both statements                    video recording.14
             were given at a police station. This
             indicates that the absence of                          *11 The State presented no evidence that the two-step
             Miranda warnings at the beginning                      interrogation was not deliberately employed to undermine
             of the interrogation process was not                   the Miranda warnings. The trial court’s finding that
             a    mistake      based    on    the                   “there was no evidence that the police deliberately

                                                                8
employed a two-step interrogation process in order to               prewaiver statements. Id. at *4. Thus, the Delatorre court
circumvent the protections of Miranda” is not relevant              did not need to address whether the police officer’s delay
because it shifts the burden to the appellant to prove the          in administering the Miranda warnings was deliberate. As
two-step interrogation was deliberately employed, when              set forth above, appellant did not waive that issue in this
the State was required to show that it was not. See id. at          case.
623–24.
                                                                    *12 The second case also is distinguishable. The court
Although appellant presented some evidence that the                 held that officers’ prewaiver “initial background
interrogation technique was deliberately employed to                interview” of a suspect for 20 minutes was not a
undermine the Miranda warnings, the trial court was                 deliberate attempt to undermine Miranda. State v.
entitled to discredit appellant’s testimony. See Amador,            Hughes, 272 S.W.3d 246, 248, 254 (Mo.Ct.App.2008).
275 S.W.3d at 878. However, the State had the burden to             During that 20–minute conversation, officers asked the
present evidence that its interrogation technique was not           suspect various questions about his background,
deliberately employed to undermine the Miranda                      relationships with family members, and why he had come
warnings. See Martinez, 272 S.W.3d at 623–24. As in                 to the city where the crime was committed. Id. at 248.
Martinez, appellant was in custody for Miranda purposes             Importantly, before appellant confessed, officers read his
when he was being interrogated. He gave both statements             Miranda rights to him and he signed a Miranda waiver
to law-enforcement officers after he had been arrested              form. Id. The officer who testified at trial identified two
pursuant to a valid arrest warrant. Both statements were            reasons beyond collection of background information
given at a police station. As set forth above, the State did        justifying the prewaiver discussion: “(1) to determine
not show that officers read appellant his Miranda                   whether the subject is under the influence of drugs or
warnings before the first confession was obtained. This             alcohol to an extent that would prevent the subject from
indicates that the absence of Miranda warnings before the           meaningfully participating in an interrogation; and (2) to
beginning of the interrogation process was not a mistake            assess the subject’s level of intellectual functioning,
but rather a conscious choice. Id. at 624.                          facility with the English language, and ability to read.” Id.
                                                                    at 254.
The trial court found, however, that “the police did not
deliberately employ [an illegal] two-step interrogation             In concluding that “the officers had no intent to violate
process. Rather, any delay in the administration of                 Miranda by conducting their interrogation in the manner
Miranda warnings was due to an effort to build rapport              they chose,” the court noted:
with the defendant rather than to intentionally circumvent
the protections of Miranda.” The record indicates, to the                        We are not blind to the fact that an
contrary, that Bolton testified he did not record the entire                     evident purpose of the officers’
interview of appellant because he wanted “to build                               prewaiver questioning of [the
rapport.” He did not testify that he or the other officers                       suspect]      (beyond       acquiring
delayed administering Miranda warnings to build                                  background       information,     and
rapport.15                                                                       gauging his intellectual capacity,
                                                                                 literacy, and lucidity) was to build
The State cites two cases from jurisdictions outside of                          a rapport to facilitate [the] further
Texas in support of its argument that a delay in                                 interrogation. The officers did so
administering Miranda warnings to build rapport is not a                         by engaging [the suspect] in a
deliberate attempt to circumvent Miranda protections.                            discussion     of     various    non-
The first case, an unpublished opinion, is distinguishable                       threatening subjects.... However,
because the officer there testified that during the course of                    nothing     in     that    pre-waiver
the conversation he realized he had forgotten to Mirandize                       discussion               undermined,
the suspect: “The conversation began ... a rapport was                           misrepresented,       or    otherwise
built, and it wasn’t until some facts started to come out                        rendered ineffective the Miranda
that I realized I had forgotten to Miranda. That’s why I                         warning      [the     suspect]    was
stopped the interview then, made the Miranda                                     ultimately given, or the waiver he
advisement, and made sure he waived before we                                    ultimately executed (nor did the
continued.” People v. Delatorre, No. B230591, 2012 WL                            officers intend to achieve this
909659, at *2 (Cal.Ct.App. Mar. 19, 2012). Forgetfulness                         effect, according to the trial court’s
is not deliberateness. See Carter, 309 S.W.3d at 39                              findings).
(articulating standard as “whether interrogating officer
deliberately withheld Miranda warnings”). Moreover, the             Id. at 255. The clear implication from this statement is
court of appeals in Delatorre held that the defendant had           that while a prewaiver attempt to build rapport by
waived his complaint that “his admissions had been                  discussing subjects unrelated to the crime is permissible,
tainted by the delayed Miranda warning” because at trial,           taking steps during a prewaiver discussion to “undermine
the defendant only asked the trial court to exclude his             [ ], misrepresent[ ], or otherwise render[ ] ineffective the

                                                                9
Miranda warning” would be a violation of Seibert. See id.            refer to the pre-Miranda statement, the interrogating
                                                                     officer stating that the defendant is not obligated to
In this case, unlike the facts in Hughes, appellant was in           discuss the content of the first statement. Martinez, 272
custody for approximately eight hours before Bolton                  S.W.3d at 626–27 (referring to examples in Seibert
began questioning him and had previously been                        plurality and concurrence).
questioned by Evans and Padilla for an indeterminate
amount of time. The record is silent regarding what                  *13 The trial court made the following findings relevant
subjects were discussed as well as to whether appellant              to this issue:
received his Miranda warnings during that timeframe.
Moreover, as set forth above, Bolton did not testify that                        [C]urative measures were taken
the administration of Miranda warnings was delayed to                            before the second confession by the
build rapport. He merely testified that the recording was                        following procedures: (1) there was
delayed for that purpose.                                                        minimal reference to the original
                                                                                 interrogation in the defendant’s
The State has not cited any cases holding that an officer’s                      recorded statement, (2) different
intentional withholding of Miranda warnings to build                             officers    conducted     the    two
rapport is not a deliberate attempt to circumvent Miranda                        interviews, (3) a substantial amount
protections, nor have we found any. See Martinez, 272                            of time elapsed between the
S.W.3d at 624–25 (holding State failed to meet burden to                         original interrogation at 5:15 p.m.
show withholding Miranda warnings was not deliberate                             and the formal recorded statement
when, among other things, interrogation process at police                        after midnight, and (4) Miranda
station was lengthy and appellant did not receive Miranda                        warnings were again given and
warnings until seven hours after the initial interrogation).                     waived prior to the second
We conclude that the trial court’s finding that the police                       statement, which was recorded.
did not deliberately employ an illegal two-step
interrogation process because any delay was due to an                Only the first two findings arguably could be considered
effort to build rapport is not supported by the record. No           curative measures, but neither is supported by the record.
testimony was elicited to this effect. There is no evidence          As set forth above, Bolton referred to the original
that the officers did not make a conscious choice to                 confession numerous times during the recorded interview.
withhold Miranda warnings. See Martinez, 272 S.W.3d at               Bolton began the video interrogation by stating, “Tell me
624. Accordingly, the State failed to meet its burden to             what we talked about earlier.” Bolton also stated: “Earlier
show that its interrogation technique was not deliberately           you said you were out drinking with a friend. Tell me
employed to undermine Miranda protections. See id. at                what happened.” “Earlier you said the passenger door was
623–24.                                                              open.” “Earlier you said you ran down the street.” The
                                                                     video interview does not reflect that appellant referred to
                                                                     the unrecorded statement first, and Bolton did not refrain
                                                                     from referring to the statement. See Carmouche, 10
IV. No Evidence of Curative Measures                                 S.W.3d at 332–33 (concluding trial court’s finding was
As set forth above, absent curative measures, the post-              clearly erroneous when “indisputable” video evidence
warning statements must be excluded. Seibert, 542 U.S. at            contradicted finding).
622, 124 S.Ct. 2601 (Kennedy, J., concurring); Carter,
309 S.W.3d at 37. “Curative measures should be designed              In any event, the proper inquiry is whether Bolton
to ensure that a reasonable person in the suspect’s                  refrained from referring to the earlier statement or
situation would understand the import and effect of the              whether appellant referred to it first—neither occurred
Miranda warning and of the Miranda waiver.” Martinez,                here. When an officer refers to the first interrogation in
272 S.W.3d at 621; see also Ervin, 333 S.W.3d at 212–13.             the second interrogation, as here, it is evidence that a
Curative measures allow the accused to distinguish the               continuity exists between the two interrogations. See
two contexts and appreciate that the interrogation has               Martinez, 272 S.W.3d at 625–26. To avoid a Miranda
taken a new turn. Martinez, 272 S.W.3d at 621; Ervin,                violation in such a circumstance, an officer may inform
333 S.W.3d at 213. Examples of appropriate curative                  the defendant that any prior unMirandized statements
measures include (1) a substantial break in time and                 made during a previous interrogation could not be used
circumstances between the unwarned statement and the                 against him. See id. at 626. Here, Bolton repeatedly
Miranda warning; (2) explaining to the defendant that the            referred to appellant’s previous statement on the video
unwarned statements, taken while in custody, are likely              and thus treated that interrogation as a continuation of the
inadmissible; (3) informing the suspect that, although he            first. See id. at 625–26. On the video, Bolton did not
previously gave incriminating information, he is not                 inform appellant that any unMirandized statements could
obligated to repeat it; (4) interrogating officers refraining        not be used against him. Accordingly, the trial court’s
from referring to the unwarned statement unless the                  finding that Bolton’s reference to the unrecorded
defendant refers to it first; or (5) if the defendant does           statement was minimal and thus a curative measure is not

                                                                10
supported by the record.                                             incriminating statements made during a custodial
                                                                     interrogation where no proper Miranda warnings were
Moreover, it is undisputed that Bolton elicited the                  given constitutes constitutional error, and this court must
original, unrecorded confession from appellant and then              reverse unless we determine beyond a reasonable doubt
recorded the statement. Thus, the trial court’s finding that         that the error did not contribute to appellant’s conviction.
different officers conducted the two interviews as a                 See id.; Akins v. State, 202 S.W.3d 879, 891–92
curative measure is not supported by the record.                     (Tex.App.— Fort Worth 2006, pet. ref d.). In analyzing
                                                                     whether the constitutionally erroneous admission of a
The third finding—that “a substantial amount of time                 defendant’s statement was harmless, we review whether
elapsed between the original interrogation ... and the               the admission of appellant’s statement contributed to the
formal recorded statement” is not a curative measure. A              jury’s verdict of guilty in this cause, regardless of whether
curative measure would be a substantial break in time and            there is evidence independent of the statement that is
circumstances between the unwarned statement and the                 otherwise sufficient to sustain the jury’s verdict of guilt.
Miranda warning. See id. at 626. When the presence of                McCarthy       v.     State,     65     S.W.3d      47,    55
police personnel with the defendant is virtually                     (Tex.Crim.App.2001). If there is a reasonable likelihood
uninterrupted, there is no substantial break in time and             that the error materially affected the jury’s deliberations,
circumstances between the prewarning statement and the               then the error is not harmless beyond a reasonable doubt.
Miranda warning. See id. at 625. Appellant had been                  Id.
interviewed by Evans and Padilla for an indeterminate
time period before Bolton began his interview. The only              A defendant’s statement, especially a statement
evidence of a break in time of police presence with                  implicating him in the commission of the charged offense,
appellant was Bolton’s testimony that “after [appellant]             is unlike any other evidence that can be admitted against
confessed,” Bolton “used the restroom and then a few                 the defendant. Id. at 55–56. The presence of other
minutes later ... came back into the room” and took the              overwhelming evidence that was properly admitted which
recorded statement. That is not evidence that a substantial          supports the material fact to which the inadmissible
amount of time elapsed between the first and the second              evidence was directed may be an important factor in the
interrogations. Thus, the trial court’s finding is not               evaluation of harm. Wall v. State, 184 S.W.3d 730, 746
supported by the record.                                             (Tex.Crim.App.2006). However, a confession is likely to
                                                                     leave an indelible impact on a jury. McCarthy, 65 S.W.3d
*14 The final relevant finding—that Miranda warnings                 at 56.
were given and waived prior to the second statement16—
likewise is not a curative measure. In fact, that is the                          If the jury believes that a defendant
pattern of an improper “question first, warn later”                               has admitted the crime, it will
interrogation technique when the prior statement was                              doubtless be tempted to rest its
unwarned. See Seibert, 542 U.S. at 604–05, 124 S.Ct.                              decision on that evidence alone,
2601. This finding is not relevant.                                               without careful consideration of the
                                                                                  other evidence in the case. Apart,
No evidence was presented that curative measures were                             perhaps, from a videotape of the
taken in this case. Thus, we conclude on this record the                          crime, one would have difficulty
State did not meet its burden to present evidence that the                        finding evidence more damaging to
officers did not employ a two-step interrogation technique                        a criminal defendant’s plea of
in a deliberate, calculated way to undermine appellant’s                          innocence.
Miranda warnings or that the officers took curative
measures to alleviate the purported failure to give such             *15 Id. (quoting Arizona v. Fulminante, 499 U.S. 279,
warnings before the original confession was obtained.                313, 111 S.Ct. 1246, 113 L.Ed.2d 302 (1991) (Kennedy,
Accordingly, the trial court’s findings that the officers did        J., concurring)).
not employ a two-step interrogation technique in a
deliberate, calculated way to undermine appellant’s                  Here, appellant confessed to shooting the two
Miranda warnings and that officers took curative                     complainants execution-style as they sat in a car and to
measures are not supported by the record and are clearly             stealing the complainants’ marijuana and cars. He also
erroneous. The trial court erred in admitting appellant’s            confessed that he threw the gun he used in the
videotaped statement.                                                commission of the offenses into a bayou. The State
                                                                     presented evidence that corroborated the confession. A
                                                                     neighbor heard gun shots, left his house, and saw the two
                                                                     bodies and a man stumbling toward the bayou. A witness
V. Admission of Statement Harmful                                    testified that he walked into a house after the shooting.
We must determine whether admitting appellant’s                      The witness testified that a group of people, including
videotaped statement was harmful error requiring                     appellant, was in the house, and the people were
reversal. See Tex. R. App. P. 44.2(a). The admission of              celebrating. The witness testified, “They said that they had

                                                                11
shot somebody.” He said “they showed him a bag of                   The State’s burden of proof regarding an alleged
marijuana. He could not remember who showed him the                 “question first, warn later” interrogation technique
bag, but he “guess [ed]” it was appellant. However, he              As noted in the majority opinion, in Martinez v. State, the
said appellant “was not really the one that was speaking            Court of Criminal Appeals held that the State has the
that much.” He said “they” told him “they” had a gun                burden of proving that the police did not deliberately
“that they threw away.” He also said appellant’s                    employ an alleged “question first, warn later”
accomplice Martinez did most of the talking.                        interrogation technique to circumvent the defendant’s
                                                                    Miranda protections.1 Four dissenting judges thought that
Another witness had gone to the house with the first                the burden should be on the defendant to present a
witness to obtain marijuana. That witness said appellant            sufficient record showing that the police did not
and Martinez were there with a group of people.                     deliberately employ an alleged “question first, warn later”
Appellant and Martinez were “jumpy.” The second                     interrogation technique.2 One concurring judge stated that
witness testified that appellant said “[t]hey killed two            he had not decided whether the State had the burden
people because of a bag of weed.” Appellant also                    found by the majority but that the court did not need to
purportedly said that “[t]hey had [the complainants’] car           address this issue to resolve the case.3 Though this
in their garage.” Defense counsel elicited testimony from           statement indicated that only four judges on the high court
the second witness that in his earlier statement to police,         concluded that the State had the burden of proof, the
he said Martinez did the talking, not appellant. No                 concurring judge joined the court’s opinion, in which the
evidence was presented that appellant was the shooter               court held that the State has the burden of proving that the
other than appellant’s videotaped confession. Although              police did not deliberately employ an alleged “question
some evidence of appellant’s guilt corroborates his                 first, warn later” interrogation technique.4 Therefore, the
confession, we cannot say there is no reasonable                    conclusion that the State has the burden of proof was
likelihood that the State’s use of appellant’s statement            contained in an opinion joined by five judges, and thus
materially affected the jury’s deliberations. See id.               constitutes a binding precedent of the Court of Criminal
                                                                    Appeals.5
We sustain appellant’s sole issue. We reverse the
judgment of the trial court and remand for a new trial.17
See Tex. R. App. P. 43.2(d); McCarthy, 65 S.W.3d at 56.
                                                                    The requirement that appellant timely present to the trial
                                                                    court a complaint that the police deliberately employed a
                                                                    “question first, warn later” interrogation technique
                                                                    To preserve a complaint for appellate review, a party must
(Frost, C.J., dissenting)                                           present to the trial court a timely request, objection, or
                                                                    motion stating the specific grounds for the ruling desired. 6
                                                                    The appellate complaint must comport with a specific
                                                                    complaint that appellant timely lodged at trial.7 A
                DISSENTING OPINION                                  complaint in which the party states one legal theory may
                                                                    not be used to support a different legal theory on appeal. 8
Kem Thompson Frost, Chief Justice, dissenting.                      Even constitutional errors may be waived by failure to
*16 Under precedent from the Court of Criminal Appeals,             timely complain in the trial court.9
when a defendant moves to suppress a statement made
after receiving Miranda warnings because the statement              It violates “ordinary notions of procedural default” for an
was made as part of an alleged “question first, warn later”         appellate court to reverse a trial court’s decision on a legal
interrogation technique used by the police to circumvent            theory not timely presented to the trial court by the
the defendant’s Miranda protections, the State has the              complaining party.10 Texas Rule of Appellate Procedure
burden of proving that the police did not deliberately              33.1 encompasses the concept of “party responsibility,”
employ such a technique. But, under preservation-of-error           meaning that appellant, as the complaining party, had the
principles, the State does not have this burden of proof            responsibility to clearly convey to the trial court the
unless the defendant timely presents to the trial court a           particular complaint that he now raises on appeal,
complaint that the police deliberately employed a                   including “the precise and proper application of the law as
“question first, warn later” interrogation technique. In the        well as the underlying rationale.”11 To avoid forfeiting an
case under review, the first time appellant arguably raised         appellate complaint, the complaining party must “let the
this complaint was during closing argument at the                   trial judge know what he wants, why he thinks he is
suppression hearing after the State had presented its               entitled to it, and to do so clearly enough for the judge to
evidence and rested. Because appellant did not timely               understand him at a time when the judge is in the proper
raise this complaint, it does not provide a basis for               position to do something about it.’ ”12 This requirement
reversing the trial court’s judgment.                               allows the trial court or the opposing party the
                                                                    opportunity to remove the basis for the objection or to
                                                                    correct the alleged error.13 A trial court’s decision will not

                                                               12
be reversed on a theory upon which the non-appealing                  first, warn later” interrogation technique.19 Immediately
party did not have an opportunity to develop a complete               after appellant made these statements during closing
factual record.14                                                     argument, the trial court ruled on appellant’s motion to
                                                                      suppress, granting it in part and denying it in part.
*17 Under the Martinez precedent, when a defendant
moves to suppress a statement made after receiving                    In ruling on this motion, the trial court did not indicate
Miranda warnings because the statement was made as                    any awareness that it was ruling on a complaint based on
part of an alleged “question first, warn later” interrogation         the alleged use of a “question first, warn later”
technique used by the police to circumvent the                        interrogation technique. The majority relies in part on the
defendant’s Miranda protections, the State has the burden             trial court’s findings of fact regarding such a technique,
of proving that the police did not deliberately employ                made long after the trial of this case under an abatement
such a technique.15 But, under preservation-of-error                  order of this court, as instructed by the Court of Criminal
principles, this burden does not arise unless the defendant           Appeals.20 Because these findings were made at the
first timely presents to the trial court a complaint that the         instance of the Court of Criminal Appeals, they do not
police deliberately employed a “question first, warn later”           indicate that the trial court intended, when it ruled on the
interrogation technique.16                                            motion to suppress, to rule on a complaint based on an
                                                                      alleged use of a “question first, warn later” interrogation
                                                                      technique.21 Even presuming the trial court was aware of
                                                                      such a complaint, it is apparent from the record the State
Appellant’s failure to timely present to the trial court a            did not have a reasonable opportunity to present evidence
complaint that the police deliberately employed a                     in response to this complaint because the complaint came
“question first, warn later” interrogation technique                  after the close of the evidence at the suppression hearing.
On remand, the State asserts for the first time that                  The untimeliness of the complaint is fatal to error
appellant failed to preserve error in the trial court. In             preservation.
neither of his written motions to suppress did appellant
complain that the police deliberately employed a                      *18 The State did not raise its preservation-of-error
“question first, warn later” interrogation technique. After           argument in its original briefing in this court. Nor did this
the close of the evidence at the suppression hearing and              court address preservation of error in its opinion on
during closing argument at that hearing, appellant’s                  original submission. Nonetheless, lack of error
primary argument was that the videotaped confession                   preservation may be raised on remand from the Court of
should be suppressed because all of the voices on the                 Criminal Appeals, even though the high court did not
recording were not identified. At the end of his closing              address preservation of error in its opinion.22 If the
argument, appellant made the following additional                     complaint was not preserved for appellate review, it is
argument:                                                             waived.23

             And my next approach ... is I’m                          Because appellant did not timely raise the “question first,
             contending this is a two-step                            warn later” complaint, he failed to preserve error in the
             interview.... And once they got him                      trial court, and this court may not reverse the trial court’s
             to say what they wanted him to say,                      judgment based on this complaint.24 Accordingly, this
             they took him in and videoed him                         court should overrule appellant’s sole issue and affirm the
             and gave his Miranda warning and                         trial court’s judgment. Because the court does not do so, I
             he told the story again. And I’m                         respectfully dissent.
             suggesting under the existing case
             law, that’s illegal and the statement
             should be suppressed.

Presuming for the sake of argument that these statements
clearly conveyed to the trial court the particular complaint
that appellant now raises on appeal and that appellant’s
counsel’s words, as quoted above, were sufficient to voice
this complaint, the objection was not timely because it
was asserted for the first time at the end of closing
argument after the close of the evidence at the hearing. 17
Lodging the complaint at this time did not allow the trial
court or the State the opportunity to remove the basis for
the objection or to correct the alleged error. 18 This failure
to timely raise the complaint denied the State an
opportunity to develop a complete record and to prove
that the police did not deliberately employ a “question

                                                                 13
Footnotes
1     Vasquez v. State, 411 S.W.3d 918, 919–20 (Tex.Crim.App.2013). When a question is raised as to the voluntariness of a statement
      of an accused, article 38.22 of the Code of Criminal Procedure requires a trial court to enter “an order stating its conclusion as to
      whether or not the statement was voluntarily made, along with the specific finding of facts upon which the conclusion was based.”
      Tex.Crim. Proc.Code art. 38.22 § 6.
2     The relevant facts concerning the crime are discussed below.

3     Miranda v. Arizona, 384 U.S. 436, 478–79, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966) (prohibiting use of oral statement of accused
      made as result of custodial interrogation unless certain warnings are given and accused knowingly, intelligently, and voluntarily
      waives rights).
4     Texas Code of Criminal Procedure article 38.22, section 3 restricts the admissibility in a criminal proceeding of statements made
      during custodial interrogation to statements that are recorded and obtained after the accused has been given a statutory warning
      akin to the Miranda warnings and “knowingly, intelligently, and voluntarily waives any rights set out in the warning.”
5     The trial court did not expressly make any conclusions of law, although some of the trial court’s findings are conclusions of law.

6     The classic example of this technique occurs when “the suspect’s first, unwarned interrogation [leaves] ‘little, if anything, of
      incriminating potential left unsaid,’ making it ‘unnatural’ not to ‘repeat at the second stage what had been said before.’ ” Bobby v.
      Dixon, –––U.S. ––––, 132 S.Ct. 26, 31, 181 L.Ed.2d 328 (2011) (citing Seibert, 542 U.S. at 616–17, 124 S.Ct. 2601)).
7     We note that the Court of Criminal Appeals has twice addressed in unprecedential, unpublished opinions whether raising the issue
      of voluntariness preserves the issue of whether a two-step interrogation technique was used in a deliberate, calculated way to
      undermine Miranda protections. See Hunt v. State, No. PD–0152–12, 2013 WL 3282973, at *4–5 (Tex.Crim.App. June 26, 2013)
      (not designated for publication) (holding raising the issue of voluntariness in the context of midstream warnings preserved
      complaint when, among other things, trial court found “second confession [was] not so tainted as to make it inadmissible” and thus
      trial court “clearly” had notice of appellant’s Seibert complaint); Batiste v. State, No. AP–76,600, 2013 WL 2424134, at *16
      (Tex.Crim.App. June 5, 2013) (not designated for publication) (holding that objection to “voluntariness” of defendant’s statement
      did not preserve error as to two-step interview when appellant did not reference Seibert, Carter, “two-step questioning,” “question
      first, warn later” or any other issues that might raise an issue under Seibert and the trial court’s findings of fact and conclusions of
      law were directed only to general voluntariness). The facts of this case are closer to Hunt because appellant raised the issue of
      voluntariness in his first suppression motion and, as discussed below, objected to the officers’ purported “two-step interview” at
      the hearing and the trial court’s findings are directed toward the Seibert challenge.
8     We find the State’s complaint that this objection was not raised until “closing argument at the suppression hearing” to be
      inconsequential. At that point in the hearing, the State could have requested to put on more evidence regarding this issue, but it did
      not do so.
9     We acknowledge that the trial court rendered its findings on remand; however, it made no finding that it had not been aware of
      appellant’s Seibert challenge at the time of the suppression hearing.
10    The only evidence of this was presented through appellant’s testimony.

11    When the two-step questioning tactic is not deliberately employed, “a suspect who has once responded to unwarned yet uncoercive
      questioning is not thereby disabled from waiving his rights and confessing after he has been given the requisite Miranda
      warnings.” See Oregon v. Elstad, 470 U.S. 298, 318, 105 S.Ct. 1285, 84 L.Ed.2d 222 (1985); see also Carter, 309 S.W.3d at 36;
      Ervin, 333 S.W.3d at 213. In this situation, when the first statement is unwarned but not coerced, “the admissibility of any
      subsequent statement should turn ... solely on whether it is knowingly and voluntarily made.” Elstad, 470 U.S. at 309, 105 S.Ct.
      1285; see also Carter, 309 S.W.3d at 32; Ervin, 333 S.W.3d at 213. “Unless a deliberate two-step strategy is employed, Elstad
      applies.” Carter, 309 S.W.3d at 37; see also Ervin, 333 S.W.3d at 213.
12    Other Texas courts of appeals have noted that the burden of showing admissibility is on the State. See, e.g., Ervin, 333 S.W.3d at
      235–36. Other jurisdictions have imposed this burden on the government as consistent with the government’s burden to prove
      admissibility of a confession before it may come into evidence. See, e.g., U.S. v. Capers, 627 F.3d 470, 479 (2d Cir.2010); U.S. v.
      Stewart, 536 F.3d 714, 719 (7th Cir.2008); U.S. v. Ollie, 442 F.3d 1135, 1142–43 (8th Cir.2006); Ross v. State, 45 So.3d 403, 427
      (Fla.2010).
13   The Martinez court held that an incomplete record does not preclude an appellate court from analyzing whether a two-step
     questioning tactic was deliberately employed because it is the State’s burden to show the confession is admissible. See Martinez,
     272 S.W.3d at 623.
14   For example, after administering Miranda warnings, Bolton began the video interrogation by stating, “Tell me what we talked
     about earlier.”
15   Defense counsel asked Bolton, “And if it comes to a point whether the Miranda warnings were read or not, y’all talked to him
     for almost eight hours and then all the [sic] sudden decide to start audio. Why don’t you audio the whole thing?” (Emphasis
     added.)
        Bolton responded, “[W]e just don’t do it. And it’s just a decision that we made that— sometimes it’s like hours, you know, just
        to get—to build rapport with the individual. You know, we talk to them about a number of things, about family.”
16   We note that the trial court found the warnings were “again” given. For the reasons set forth above, we conclude the State did not
     present evidence of when the original warnings were given and thus whether it was before Bolton elicited the first confession.
17   A motion to suppress is a specialized objection to the admissibility of evidence. Black v. State, 362 S.W.3d 626, 633
     (Tex.Crim.App.2012). When an appellate court concludes that certain evidence is inadmissible, this is generally the law of the
     case. See Howlett v. State, 994 S.W.2d 663, 666 (Tex.Crim.App.1999) (“[A]n appellate court’s resolution of a question of law in a
     previous appeal of the same case will govern the disposition of the same issue when raised in a subsequent appeal.”). The law of
     the case doctrine may apply to a motion to suppress. See, e.g., Satterwhite v. State, 858 S.W.2d 412, 430 (Tex.Crim.App.1993)
     (applying law of the case because none of the facts surrounding search had changed); Ware v. State, 736 S.W.2d 700, 701
     (Tex.Crim.App.1987) (applying law of the case when the facts and legal issues were “virtually identical”). However, though we
     have concluded that the State did not meet its burden of proof on this record, nothing prevents the State from offering additional
     evidence in support of the admissibility of the confession on remand. See Black, 362 S.W.3d at 633–34; Montalvo v. State, 846
     S.W.2d 133, 136 (Tex.App—Austin 1993, no pet.).
1    Martinez v. State, 272 S.W.3d 615, 623–24 (Tex.Crim.App.2008).

2    Id. at 631 (Hervey, J., dissenting, joined by Keller, P.J., Meyers, and Keasler, JJ.).

3    Id. at 627–29 (Price, J., concurring).

4    See id. at 623–24 (Johnson, J., joined by Price, Womack, Holcomb, and Cochran); id. at 629 (Price, J., concurring).

5    See Reynolds v. State, 4 S.W.3d 13, 15–16 (Tex.Crim.App.1999).

6    See Tex. R. App. P. 33.1(a).

7    See Wilson v. State, 71 S.W.3d 346, 349 (Tex.Crim.App.2002).

8    See Broxton v. State, 909 S.W.2d 912, 918 (Tex.Crim.App.1995).

9    See id.

10   See Hailey v. State, 87 S.W.3d 118, 122 (Tex.Crim.App.2002).

11   See Pena v. State, 285 S.W.3d 459, 463–64 (Tex.Crim.App.2009).

12   Id. at 464 (quoting Lankston v. State, 827 S.W.2d 907, 909 (Tex.Crim.App.1992).

13   Id. at 464.




                                                               2
14   See Pena, 285 S.W.3d at 463–64; Hailey, 87 S.W.3d at 122.

15   See Martinez, 272 S.W.3d at 623–24.

16   See Pena, 285 S.W.3d at 463–64; Hailey, 87 S.W.3d at 122. See also United States v. Ollie, 442 F.3d 1135, 1142–43 (8th
     Cir.2006) (stating that “when a defendant moves to suppress a post-warning statement that he contends was given as part of a
     question-first interrogation, the prosecution must prove, by a preponderance of the evidence, that the officer’s failure to provide
     warnings at the outset of questioning was not part of a deliberate attempt to circumvent Miranda ”).
17   See Pena at 464,.

18   See id.

19   See id.

20   See Vasquez v. State, 411 S.W.3d 918, 920 (Tex.Crim.App.2013).

21   The majority also relies upon the failure of the trial court to make a finding that it was unaware of a Seibert challenge by appellant
     at the time of the suppression hearing. But, the trial court was not instructed in this court’s abatement order to make any findings
     regarding preservation of error or regarding its awareness of a Seibert challenge at the time of the suppression hearing.
22   See, e.g., Pena v. State, 285 S.W.3d 459, 464 (Tex.Crim.App.2009) (holding that appellant failed to preserve error in the trial court
     as to an appellate complaint, even though the Court of Criminal Appeals previously had vacated the court of appeals’s judgment
     and remanded to the intermediate court based on a procedural issue regarding the same appellate complaint, without addressing
     preservation of error).
23   See id. at 463–64.

24   See Pena, 285 S.W.3d at 463–64; Hailey, 87 S.W.3d at 122.




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                           Appendix B

                      State v. Vasquez,
                      th
No. 1333231 in the 228 District Court of Harris County, Texas

     Findings of Fact on Defendant’s Motion to Suppress
                       March 7, 2014




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