
 
 


 


NUMBER 13-08-00529-CR

 
COURT OF APPEALS

 
THIRTEENTH DISTRICT OF TEXAS


CORPUS CHRISTI - EDINBURG



RAY GALVAN VACCA AKA	 Appellant,
RAY GALVAN,
v.


THE STATE OF TEXAS,                                                               Appellee.


On appeal from the 347th District Court

 of Nueces County, Texas.



MEMORANDUM OPINION (1)


Before Chief Justice Valdez and Justices Yañez and Benavides

Memorandum Opinion by Justice Benavides


	Ray Galvan Vacca AKA Ray Galvan ("Galvan"), appellant, was indicted for the
capital murder of Cynthia Pena.  See Tex. Penal Code Ann. § 19.03 (Vernon Supp. 2009). 
A jury found Galvan guilty, and the trial court sentenced him to life in prison.  See id. §
12.31(a) (Vernon Supp. 2009) (providing a sentence of life imprisonment for those
adjudged guilty in capital felony cases in which the State does not seek the death penalty). 
Galvan argues that the trial court erred in overruling his motion to suppress his confession
because he was interrogated after asserting his right to counsel.  See U.S. Const.
amends. V, XIV; see also Dinkins v. State, 894 S.W.2d 330, 349 (Tex. Crim. App. 1995)
(declaring that "once a suspect has invoked his right to counsel, all interrogation by the
police must cease until counsel is provided or until the suspect himself re-initiates
conversation").  We affirm.
I.  Background
	On December 22, 2007, Pena was found dead with approximately six stab wounds
on her body, including one in the region of her heart.  Responding officers from the Corpus
Christi Police Department cornered Galvan a short distance from Pena's house in an
H.E.B. parking lot.  During the ensuing standoff, Galvan held a knife in one hand and a
beer in the other.  His clothes appeared to have blood on them.  Galvan stated to the
officers, "I am not putting this knife down.  You all are going to have to shoot me.  I did
something stupid."  Eventually, Galvan set the knife and beer down, was handcuffed by the
officers, and then was placed in the back of a police car.  Once in the police car, Galvan
was read his Miranda rights.  See Miranda v. Arizona, 384 U.S. 436, 444-45 (1966).  After
being read his rights and while still in the back of the police car, without prompting from the
officers, Galvan declared, "I did what I had to do after [twenty] years with this woman.  I
regret what I did."  Galvan further volunteered that "[s]he wanted to do me like this[;] I did
what I had to do.  I hope the medics can save her.  But if she dies, that's okay.  I did what
I had to do.  I was out smoking crack all night[,] and I did what I had to do."
	Galvan was taken to the police station, and while smoking a cigarette outside the
station, he had a conversation with Sarah Akin, a detective with the Corpus Christi Police
Department.  Without being asked any questions by Akin, Galvan stated that "he did what
he had to do[,] and he hoped that she made it."  Galvan then asked Akin whether he
needed an attorney, to which Akin replied that it was his decision.  Galvan then said that
he "was probably going to want one."  Akin took Galvan inside the station and relayed this
conversation to Ralph Lee, another detective with the Corpus Christi Police Department. 
Believing that Galvan had requested an attorney, Lee entered the holding cell and said to
Galvan, "[J]ust so you know, in the State of Texas[,] because you have asked for an
attorney[,] we can't talk to you.  The only way we can talk to you is that [sic] if you tell us
you want to talk to us about this case."  
	Galvan replied that he did want to talk to Lee about the case, and Lee called Akin
into the interrogation room, where he asked Galvan to repeat his request in Akin's
presence.  Galvan did, and Lee took him into a room equipped with a video camera.  On
camera, Lee Mirandized Galvan, see id. at 444, Galvan signed a waiver, and confessed.
	Before trial, Galvan filed his "Motion to Suppress Oral Statements of Defendant." 
After a hearing on the motion, the trial court denied it, and the case proceeded to trial.  At
trial, testimony regarding Galvan's statements in the H.E.B. parking lot, in the back of the
police car, and at the police station, along with his signed waiver and video-taped
confession, were admitted into evidence.  The jury found Galvan guilty of capital murder,
and because the State did not seek the death penalty, the trial court sentenced him to life
in prison.  See Tex. Penal Code Ann. §§ 12.31(a), 19.03.  This appeal ensued.  

II.  Preservation and Waiver
	Before we can address Galvan's appellate argument, we must decide whether he
properly preserved the issue for our review.  See Tex. R. App. P. 33.1.  The State contends
that Galvan waived his appellate issue by failing to argue in his motion to suppress and at
the suppression hearing that the detectives failed to honor his request for counsel by
continuing to interrogate him, which ultimately resulted in his confession.  The State also
asserts that Galvan failed to object to the admission of the confession on the grounds that
it was obtained in violation of his previously-invoked right to counsel.  See id.  The State
argues that Galvan merely mentioned "an unspecified violation of [his] right to counsel and
against self-incrimination."  See Swain v. State, 181 S.W.3d 359, 365 (Tex. Crim. App.
2005).  We agree.
A.	Applicable Law
	To preserve his issue for appeal, Galvan must have made a timely objection or
motion that stated the grounds for his contention with "sufficient specificity to make the trial
court aware of the compliant . . . ."  Pena v. State, 285 S.W.3d 459, 463 (Tex. Crim. App.
2009) (citing Tex. R. App. P. 33.1(a)(1)(A)).  Galvan had "the responsibility of clearly
conveying to the trial judge the particular complaint, including the precise and proper
application of the law as well as the underlying rationale" and must have "'let the trial judge
know what he wants, why he thinks he is entitled to it, and to do so clearly enough for the
judge to understand him at a time when the judge is in the proper position to do something
about it.'" Id. at 463-64 (citing Reyna v. State, 168 S.W.3d 173, 177 (Tex. Crim. App. 2005)
and quoting Lankston v. State, 827 S.W.2d 907, 909 (Tex. Crim. App. 1992)). 
 
B.	Discussion
	In his "Motion to Suppress Oral Statements of Defendant," Galvan moved the trial
court to "suppress all evidence resulting from an illegal oral statement given by the
Defendant . . . ."  He further requested that the trial court suppress, among other types of
evidence:  (1) "[a]ll oral statements of the Defendant obtained as a result of the illegal
statement(s) taken from the Defendant"; and (2) "[a]ny and all invocations of his rights by
the Defendant, his refusal to waive his rights and consent to be interviewed by law
enforcement agents, as well as his post-arrest silence."  In support of his motion to
suppress, Galvan stated that:
	the Defendant would show this Honorable Court that at the time of any
conversations between the Defendant and law enforcement officers, the
Defendant was either under arrest or substantially deprived of his freedom
by the attendant conduct of said law enforcement officers and the
surrounding circumstances; or that the actions of law enforcement rendered
the taking of the statement coercive and involuntary.  The Defendant was
interrogated by law enforcement officers.
 
		. . . .

	That said Defendant was deprived of his right to counsel and did not
intelligently, understandingly or knowingly waive his right to counsel or right
to remain silent.
 
		. . . .

	That any oral statement(s) as well as any evidence or testimony developed
as a result of the oral statement(s) were tainted by the illegal and unlawful
detention or arrest of the Defendant herein, in violation of the Defendant's
constitutional rights under the Fifth and Fourteenth Amendments to the
United States Constitution; Art. I, §9 of the Texas Constitution; and Tex.
Code Crim. Pro. Art. 38.22.  Any statement given by the Defendant was not
voluntary.
 
		. . . .

	That any oral statement taken from the Defendant was taken in violation of
Tex. Code Crim. Pro. Art. 38.22 §3, because the procedures of Art. 38.22 §3
were not followed in the taking of the alleged oral statement(s) of the
Defendant.
 
		. . . .

	That the admission of any oral statement(s) or any evidence or testimony
developed as a result of the written statement(s) would therefore violate the
Defendant's rights under the Fourth, Fifth, Sixth and Fourteenth
Amendments to the United States Constitution; Art. I, §§9 and 10 of the
Texas Constitution; and Tex. Code Crim. Pro. Arts. 1.05, 38.22 and 38.23.
 
		. . . .

	[T]he Defendant respectfully prays that this Honorable Court will conduct a
pre[]trial hearing on this motion, and after hearing evidence, that this
Honorable Court will order any and all confessions, admissions, refusals and
oral statements taken from the Defendant by law enforcement officers as
well as any testimony or evidence developed as a result of such illegal
statements or confessions suppressed for the aforementioned reasons . . . .

(Emphasis in original.)
	At the hearing on his motion to suppress, Galvan's attorney stated that "the only
pretrial matter we had was the one that we talked about Friday in which we had filed a
motion to suppress any of the--those oral statements, especially the ones out there at the
time of his arrest in the parking lot." (2)  Seeking to clarify the subject of the hearing, the State
declared, "I had been under the impression that what [Galvan's attorney] wanted to
suppress was the confession.  What he just referenced was the statements made in the
parking lot."  Galvan's attorney replied, "Right.  I have the oral statement that he made out
there in the motion."  Shortly thereafter, the State again sought clarification, stating, "For
clarification, if we are not going to be talking about the confession this morning, I can
probably release [two witnesses].  But I need to make sure that is the case before I do." 
Galvan's attorney responded, "That's fine."  The trial court then declared, "That's the case. 
Thank you.  Who is your first witness."
	The hearing proceeded, and almost all of the testimony elicited by both parties
related to whether Galvan was intoxicated at the time he made the parking-lot statements. 
There was, however, brief testimony relating to Galvan's conversation with Akin regarding
his alleged request for an attorney.  On direct examination, Akin stated that Galvan asked
her whether he needed an attorney, to which she replied that it was up to him.  Galvan
responded that "he was probably going to want one."  On cross examination, Galvan's
attorney asked Akin whether she had relayed Galvan's statement to Lee, and she stated
that she had.  No further testimony regarding Galvan's alleged request for an attorney was
presented during the suppression hearing.
	At the end of the hearing, following the last witness, the State's closing argument
focused on the law concerning statements made by intoxicated individuals, which
appeared to be Galvan's primary argument in favor of his motion to suppress.  After the
State's argument, the following colloquy took place:
	The Court:  So is that the issue, what you are arguing?

	[Galvan's Attorney]: No, Your Honor.  There was not a lot of--there was no
evidence presented by the defense on that issue [Galvan's intoxication].

	[The State]:  Okay.  Then I am going by what [Galvan's] attorney had
indicated on Friday.  I thought that this was going to be a hearing on
confession based on--

	The Court:  But it is not.  Let him argue, see what he is going to say.  See if
you need to respond.

Galvan's attorney proceeded to argue that:

		Basically, what we are saying is, number 1, the officer testified to that
[sic] his emotional state, his eyes were very wide.  He did not know what was
causing this.  So[,] if that's the case, if he is very emotional and upset at the
time that he is being arrested or being Mirandized [sic], then I believe that
they have not shown that they complied with the law that he understood what
he was being read.  Also, if we recall, Sergeant [Akin] even says that he
probably wanted an attorney.  We don't know if that's true or not.  We have
not even got to that point.  We won't get to that point until we actually hear
if he has what she said in her notes but from what was said here, a person
is just read his rights.  I think that the law is very clear that that person has
to have understood his rights and waive[d] those rights and continue[d]
talking or saying anything.  So from that basic standpoint, we are saying
anything that was said out there at the scene concerning what he did, where
"she deserved it", [sic] things like this, should be suppressed.

The trial court denied Galvan's motion to suppress.

	During the trial, the State sought to introduce Galvan's signed waiver and video-taped confession.  First, the State questioned Lee about his conversation with Galvan,
where Lee told Galvan that because Galvan had requested an attorney, Lee could no
longer speak with Galvan unless Galvan told the detectives that he wanted to speak with
them.  Galvan then stated that he wanted to speak with Lee, and Lee Mirandized him by
recording on video Galvan's signing the Miranda warnings.  See Miranda, 384 U.S. at 444. 
When the State attempted to introduce the written and signed Miranda warnings, Galvan's
attorney took Lee on voir dire to develop testimony regarding the magistrate's "inmate
medical screening report," which was completed about an hour after Lee's interaction with
Galvan and which indicated that Galvan was under the influence of either drugs or alcohol. (3) 
Lee testified that Galvan "admitted to drug use[,]" but that Galvan "would respond to [Lee's
questions] and answer the questions," and it "seemed like he was answering the questions
okay."  After receiving permission to publish the "inmate medical screening report" to the
jury, Galvan's attorney stated, "Your Honor, with that, we would object to any further
testimony from this witness concerning any statement or anything else that was done by
Mr. Galvan."
	Following this objection, the trial court took a break, and outside the presence of the
jury but still on the record, the trial court entertained arguments from counsel concerning
further testimony from Lee.  A lengthy discussion took place regarding Galvan's sobriety
at the time of his conversation with Lee.  Afterward, the trial court initiated a discussion
about whether Galvan's confession resulted from police malfeasance after he requested
an attorney.  The State argued that Lee had done nothing improper prior to Galvan's
waiver of his right to an attorney.
	The trial court expressed its concern with case law that provides that even after a
defendant has requested counsel, the police may continue to question him, so long as the
defendant initiates the conversation.  The trial court stated, "But it sure makes it fuzzy
because all those cases are very fact specific[,] and it depends on the facts.  It does not
help matters, you know, when you are having these kinds of situations."  Galvan's attorney
only asked whether the confession was made before or after the "inmate medical
screening report."  The trial court then asked the State, "Where are we headed?  We are
going to continue with the evidence before the jury on whether this defendant understood? 
Is that where we are at?"  The State responded, "That would be my intention[,] if that's all
right [sic] with you."  Galvan's attorney then declared, "Well, my objection was--my
objection was nothing can go further from him[,]" to which the trial court replied:
	It depends on the facts.  My comment about that is not necessarily indicating
on how I am going to rule.  Just that these things become so messy when we
start doing things.  So is that something we are going to submit to the jury? 
I need to figure out what we are doing right now . . . I am just trying to figure
out where we are headed."

	Next, the State expressed its intention "to continue to elicit testimony from Detective
Lee about the circumstances leading up to and the warnings about [Galvan's] confession." 
Galvan's counsel responded, "Well, I object to that.  I have no control."  The State
continued its direct examination of Lee, who discussed the circumstances surrounding
Galvan's confession.  The trial court admitted Galvan's signed waiver, which was
published, without objection, to the jury.  Lee then testified that, on video, he reiterated his
previous statements to Galvan concerning the procedure by which Galvan could talk to him
after Galvan had requested an attorney.  The State then sought the admission of the
videotape, but it passed the witness prior to the trial court's ruling on the admissibility of the
video.
	On cross-examination, Galvan's attorney questioned Lee about the procedure he
followed with Galvan after Galvan had requested an attorney.  Galvan's attorney's
questions covered two topics:  (1) whether Lee did anything to coerce Galvan to talk after
Galvan had requested an attorney; and (2) whether Galvan appeared to be under the
influence leading up to and during his waiver and confession.  
	After the cross-examination, the State and Galvan's attorney approached the bench. 
The State indicated it was going to introduce the video, and Galvan's attorney stated, "I
made my objections."  The trial court overruled the objection, declaring, "I am going to
overrule the objection.  I see a problem with the situation but the case law sets out based
on these facts what is allowed."
	On appeal, the State contends that Galvan's motion to dismiss was too general to
preserve error and that his trial counsel's objections during the trial also failed to preserve
the error Galvan now complains about on appeal.  We agree.
	As the court of criminal appeals noted in Swain, "global statements" in a pretrial
motion to suppress are not sufficient to preserve arguments for appeal.  181 S.W.3d at
365.  In Swain, in his motion to suppress, the defendant "argued '[t]hat any statements
made by Defendant were obtained in violation of his right to counsel and his right against
self-incrimination as guaranteed by U.S. Const. amends. V, VI, and XIV, and Tex. Const.
art. I, §§ 10 and 19[,]'" and "generally argued in his motion to suppress that his statements
were inadmissible under Article 38.23."  Id.  The court of criminals appeals stated:
	These arguments were global in nature and contained little more than
citations to constitutional and statutory provisions.  At the hearing on the
motion to suppress, appellant failed to complain about being questioned after
asserting his right to counsel, and instead simply objected that his
statements were inadmissible because the police illegally arrested him and
failed to comply with the requirements of Articles 38.22, 14.03, and 14.06. 
Appellant's global statements in his pretrial motion to suppress were not
sufficiently specific to preserve the arguments he now makes on appeal.

Id.  Therefore, in cases like the one before us, "a party waives error when (1) a
suppression motion makes global arguments citing little more than constitutional and
statutory provisions and (2) fails to argue any specific grounds for suppressing evidence
at the suppression hearing."  Cisneros v. State, 290 S.W.3d 457, 462 (Tex. App.-Houston
[14th Dist.] 2009, pet. granted) (emphasis in original) (citing Swain, 181 S.W.3d at 365).
	In the present case, not only did Galvan make "global arguments" in his motion to
suppress, at the suppression hearing and at trial, he failed to object to the admissibility of
his confession based on the detectives continuing to question him after he invoked his right
to counsel. (4)  Because Galvan failed to argue in his motion to suppress, the hearing on his
motion to suppress, and during the trial that his confession was inadmissible because the
detectives continued the interrogation after he requested the assistance of counsel, we
conclude that he did not preserve this issue for our review.  See id.; see also Tex. R. App.
P. 33.1(a)(1)(A).  Therefore, we do not reach the merits of his appellate complaint.
III.  Conclusion
	Having found that Galvan failed to properly preserve his appellate issue, we affirm
the judgment of the trial court.

								__________________________
								GINA M. BENAVIDES,
								Justice

Do not publish.
See Tex. R. App. P. 47.2(b)

Delivered and filed the
24th day of June, 2010.

1.  Because this is a memorandum opinion and the parties are familiar with the facts of the case, we
will not recite them here except as necessary to advise the parties of the Court's decision and the basic
reasons for it.  See Tex. R. App. P. 47.4.
2.  There is no record of the "Friday" conversation included in the appellate record before this Court.
3.  Further testimony revealed that the person who checked the "under the influence" box on the
"inmate medical screening report" was a jailer at the city jail and not the magistrate before whom Galvan
appeared.
4.  Because we conclude that Galvan waived his appellate issue, we do not reach the merits of his
appeal, including his argument that he had properly invoked his right to counsel prior to Lee's comments to
him in the holding cell.

