                                    COURT OF APPEALS
                                 EIGHTH DISTRICT OF TEXAS
                                      EL PASO, TEXAS

 JOSE ESPARZA,                                    §
                                                                   No. 08-08-00304-CR
                   Appellant,                     §
                                                                      Appeal from the
 v.                                               §
                                                                    384th District Court
 THE STATE OF TEXAS,                              §
                                                                 of El Paso County, Texas
                   Appellee.                      §
                                                                   (TC# 20060D05258)
                                                  §

                                           OPINION

       Jose Esparza, Appellant, appeals his conviction for capital murder and attempted murder,

asserting that he was denied his Fifth Amendment and Sixth Amendment right to counsel and that

his confession was involuntarily made due to coercion. For these reasons, Appellant complains that

the trial court improperly admitted his custodial statement into evidence at trial. We affirm.

                                         BACKGROUND

       In a two-count indictment, Appellant was charged with capital murder (Count I) and

attempted capital murder (Count II). After pleading not guilty, a jury found Appellant guilty of

capital murder (Count I) and attempted murder (Count II), a lesser-included offense. The trial court

sentenced Appellant to an automatic life sentence for his capital murder conviction as the State did

not seek the death penalty. TEX . PENAL CODE ANN . § 12.31(a)(2) (Vernon Supp. 2009). For his

attempted-murder conviction, the trial court sentenced Appellant to twenty years’ confinement. TEX .

PENAL CODE ANN . § 12.32(a) (Vernon Supp. 2009).

       Before the commencement of trial, Appellant filed a motion to suppress evidence, including

his video-recorded oral statement to police, and asserted that the statement was obtained as the result
of an illegal detention, arrest, and search of Appellant in violation of his constitutional rights and

articles 1.06 and 38.23 of the Texas Code of Criminal Procedure.

       The trial court heard and considered the following evidence in two pretrial hearings, a final

oral argument, and at trial as Appellant sought to suppress the video recording in which Appellant

made his custodial confession.

       On Friday evening, August 25, 2006, Ruben Munoz and Maria Porras went to an El Paso

nightclub to celebrate a friend’s birthday, and they later left the nightclub at approximately 2 a.m.

on Saturday, August 26, 2006, in a white van. Munoz stopped at a convenience store to use the

restroom but it was not in working order. As his residence was nearby, Munoz pulled into the

alleyway behind his home and exited the vehicle while Porras waited in the front passenger seat of

the van. The last thing Munoz remembered of that evening was using the restroom in the alleyway.

       At about 8:20 a.m. that same morning, Munoz was found badly beaten, but alive. However,

Maria Porras and the white van were missing. Detective Jesus Pantoja, Jr. and other El Paso Police

Department officers began interviewing Munoz’s family members and his nightclub companions.

The van was later found in a nearby alleyway and was processed for blood and fingerprints. Several

of the fingerprints from the van and another found on a lug wrench discovered inside the van

matched Appellant’s known prints, and Detective Pantoja was notified of the fingerprint match at

approximately 11 p.m. that evening.

       Several hours later, at approximately 2 a.m. on Sunday, August 27, 2006, El Paso Police

officers approached Appellant’s residence to execute a warrant for his arrest for the aggravated

robbery of Munoz. While other officers were approaching the front door of the residence, another

officer observed the mostly nude and deceased body of Maria Porras in Appellant’s backyard.

Appellant was arrested and, except for the two youngest children, everyone in the home, including
Appellant’s wife, Patricia, and members of her family, were transported to the police station in police

vehicles while officers secured the residence for further investigation.

       At approximately 2:35 a.m., Detectives Pantoja and Yvette Nevarez, took Appellant to an

interview room at the police station and asked Appellant to read aloud a Miranda warning card.

Appellant complied and when asked by Detective Pantoja if he understood his rights, Appellant

stated that he did, and then signed the card, marking it with the date and time. According to both

Detective Pantoja and Detective Nevarez, Appellant did not invoke any of his rights, never asked

for an attorney, and spoke with the detectives for approximately one and one-half hours, until close

to 4 a.m. During this first interview, Appellant denied being involved in the crimes.

       At the end of the first interview, the detectives left Appellant in the interview room but cuffed

Appellant’s left hand to the chair while they proceeded to do follow-up work and awaited the results

of an ongoing interview between another detective and Appellant’s wife, Patricia. At some point,

Detective Pantoja informed Appellant that officers were speaking with Patricia. Detective Pantoja

periodically checked on Appellant during this time and during one of those checks, at approximately

4:40 a.m., Appellant asked to speak with Patricia and stated he would thereafter tell Detective

Pantoja what had happened. Detective Pantoja informed Patricia that Appellant wished to speak

with her, and she agreed to meet with him. Detective Pantoja stated that he moved Appellant to

another interview room and then escorted Patricia to the room but never gave her any instructions.

Police monitored and made a video recording of the 23 minute discussion between Appellant and

Patricia, but never told either of them that a recording would be made. The recording is devoid of

any statement or indication by Patricia that she was ever asked by any law enforcement officer to

have Appellant give a statement explaining what happened or how Appellant may have been

involved in the offenses.
       At the conclusion of Appellant’s conversation with Patricia, and while the video recording

was continuing, Detectives Pantoja and Nevarez escorted Patricia from the room, and a few minutes

later, at approximately 8:13 a.m., commenced a second interview with Appellant. Appellant again

read his rights aloud from the Miranda warning card he had signed earlier and informed Detective

Pantoja that he understood his rights. Over the course of the next 40 minutes, Appellant answered

the detectives’ questions and described the manner in which he had encountered and attacked Munoz

and Porras. Appellant never asked for an attorney and never asked that the interview cease. At 8:53

a.m., as the second interview concluded, Appellant asked to see Patricia and the detectives brought

her in to see Appellant.

       Along with that of other witnesses, the trial court also heard and considered testimony from

Patricia, her brother, and Appellant. During the first suppression hearing, Patricia testified that

Detective Pantoja told her that Appellant did not want to tell them what had happened and had asked

her “to see if [Appellant] would be able to give [her] any information since [she is] his wife.” She

testified that she spoke with Appellant because she understood that she was not otherwise going to

“get [her] home back,” where her parents, younger sister and brother, and brother-in-law lived. On

cross-examination, Patricia stated that she was left with the impression that she would not get the

home back because Appellant had not cooperated in providing any information about what had

happened and, since her family had been removed from the home, it seemed that they would not be

able to return home if Appellant did not say anything. Patricia testified that she knew that a body

had been found in the backyard of the home, that it had been there for over 24 hours, and that the

police were investigating that crime. She also admitted that Detective Pantoja never told her, “If you

don’t go in there and talk with him your family will not get its home back.” Rather, she agreed, this

concept was just something that was “in [her] mind.”
        When the suppression hearing continued on May 14, Patricia recanted this testimony and

again stated, “Well, [Detective Pantoja] told me if Jose Esparza did not say anything we were not

going to be able to get our home.” She reiterated that Detective Pantoja wanted her to speak with

Appellant to see if he would say something to her since she was his wife but he did not tell her what

it was he wanted Appellant to say, only that he wanted Appellant to say what had happened. When

she was transported from the police station by a police officer at approximately 10 a.m, she was

taken to her uncle’s house.

        Patricia’s brother, George Lomeli, Jr., who had also been removed from the residence after

Appellant’s arrest, testified that he was at the police station for approximately five hours and that an

officer told him that they would need to go somewhere else for the moment until all of the evidence

was collected, and they would be permitted to return home thereafter. He explained that many of

the family members were transported from the police station at approximately 7:30 a.m. that same

day by police who took them to an uncle’s home. He testified that Patricia arrived there at

approximately 10:30 a.m., and that they were able to return to their residence the next day at 8:30

p.m.

        According to Appellant, he had informed the detectives during his first interview that he

wished to speak with his attorney after receiving his warnings but never saw an attorney that day.

At approximately 10 a.m., Appellant was taken to a jail magistrate who again advised him of his

rights. However, Appellant did not tell the judge he wanted an attorney and he could not remember

if the judge said he would appoint an attorney. Appellant testified that he never asked to speak to

his wife and said that he confessed to the detectives because he felt pressured and motivated by his

wife’s emotional state, feeling that he did not have any other option.

        The trial court directed Appellant’s and the State’s attorneys to prepare legal briefs on these
matters, and heard oral arguments before trial. During the pretrial hearings, in his legal brief, and

at oral argument, Appellant asserted that after his initial interview with the detectives ended, he was

left alone for several hours and that his wife, Patricia, was then improperly used as an agent of the

police to aid in securing Appellant’s confession during his second interview. In essence, he claimed

that his statement was coerced and was involuntary.

       At the conclusion of oral arguments, the trial court noted that it had reviewed the tape

recordings and commented that he had problems with the conduct of Detective Pantoja:

                It was shady, to say the least. You know, and to say that the ends justify the
       means is a problem for me, because I cannot understand how they could in good
       faith, in good conscience – okay, they want to solve the situation that’s in front of
       them. They have fingerprints, they have a good idea who the perpetrator is in their
       minds, but to sit there and to use a wife to get him to – to go into the room and
       communicate and speak with this man and be recording that, that’s very troublesome
       to me, to say the least.

               And I don’t know if it’s going to be troubling for the Courts of Appeals or the
       Texas Court of Criminal Appeals or the United States Supreme Court. But for at
       least this trial Court, in dealing with the human factor and the issues in front of me
       and the people that have testified – and I’m not dealing with the dry record that’s
       produced for the courts of appeals, I’m dealing with the situation that’s in front of
       me. I find the conduct of Pantoja to be reprehensible, to say the least.

              Now, whether – still, despite that, falls within the parameters of being
       acceptable is another issue, okay?

       The prosecutor then noted, “[The Appellant] is the one that requested the conversation with

his wife. I do not believe she was an agent of the police department –.” The trial court replied:

       I’m not accepting that argument.

                                                . . .

       That argument – that one’s– that one I’m not – I’m dealing more specifically with the
       spousal communication.

       I’m going to tell you this right now – and we don’t need to go any further on this, all
       right? So you might as well listen to my ruling.
                                                . . .

       My ruling is the communication between the wife and husband is not coming in this
       court. It’s not going to be in the trial.

Appellant’s counsel argued:

                As soon as his wife walks out the door- Pantoja has the benefit of
       sitting there on the video monitor watching what’s going on, and then she
       softened him up, and as soon as she’s walking out the door this way, Pantoja
       is going in this door that way, and “boom” [h]ere’s your rights. Tell us again
       exactly what you just told your wife.

              That’s exactly what happened here. He got him softened up. He hung
       tough and demanded a lawyer until they bring the wife, who he has children
       with, who he sleeps with, in there to soften him up, and then he spills the
       beans.

The prosecutor sought clarification from the court regarding the ruling regarding Appellant’s

statement to his wife, saying, “[B]ut you’re not saying that it was against the law, but you are saying

the Court is making a ruling that [it] [is] not allowing that in –.”

The court replied:

       I’m saying that was a spousal communication.

                                                . . .

       A privileged communication is what I’m saying.

       Now the issue for the defense and for [the prosecutor] is whether, in fact, it was a
       form of waterboarding. It was a form of torture. It was a form of softening him up.
       A nice way of beating him to get him to make a statement that he apparently was not
       making before.

               I don’t know what happened before. I have his word against Pantoja’s word,
       and I’m going to go ahead and take Pantoja’s word, the officer’s word that
       [Appellant] did not invoke his right to an attorney. Or invoke his right to remain
       silent.

       The trial court thereafter issued written findings of facts and conclusions of law in which it

found, among other things: (1) that prior to and at the beginning of the DVD-recorded statement,
Appellant was properly warned of his rights, that Appellant intelligently, knowingly, and voluntarily

waived the rights given to him under the United States and Texas Constitutions and the Texas Code

of Criminal Procedure; (2) that Appellant was not coerced in any fashion when making his DVD-

recorded statement; (3) that Appellant made an independent, informed choice of free will in giving

his DVD-recorded statement; (4) that the decision by Appellant to give the DVD-recorded statement

was not influence by any factor other than his desire to give said statements; and (5) that at no time

did Appellant request the presence of counsel, request to remain silent, or terminate the interview.

The trial court concluded as a matter of law that Appellant’s recorded statement was made

voluntarily while he was in custody, and that the statement met all of the requirements of Texas Code

of Criminal Procedure article 38.22.

                                           DISCUSSION

       On appeal, Appellant complains that his Fifth, Sixth, and Fourteenth Amendment rights were

violated because the State used Appellant’s wife to contravene his right to counsel, his privilege

against self-incrimination, and his right not to provide a coerced confession.

       Appellant contends that these alleged violations warranted a suppression of his custodial

confession at trial and that the trial court committed error in denying his motion to suppress this

evidence. We disagree.

                                        Standard of Review

           In a suppression hearing, the trial court is the sole finder of fact and may believe or

disbelieve all or any part of a witness’s testimony. Wilson v. State, No. PD-0307-09, 2010 WL

715253, at *3 (Tex. Crim. App. Mar. 3, 2010); Amador v. State, 275 S.W.3d 872, 878 (Tex. Crim.

App. 2009); Alvarado v. State, 853 S.W.2d 17, 23 (Tex. Crim. App. 1993); Pace v. State, 986

S.W.2d 740, 744 (Tex. App.–El Paso 1999, pet. ref’d). The trial court, like any fact finder, may
make reasonable inferences from the evidence presented during a suppression hearing. Amador, 275

S.W.3d at 878. Because the trial judge is the sole trier of fact regarding credibility and weight to be

given to a witness’s testimony, we do not engage in our own factual review of the trial court’s

decision. See State v. Ross, 32 S.W.3d 853, 855 (Tex. Crim. App. 2000); Romero v. State, 800

S.W.2d 539, 543 (Tex. Crim. App. 1990).

       We review a trial court’s ruling on a motion to suppress using a bifurcated abuse-of-

discretion standard. Wilson, 2010 WL 715253, at *3; St. George v. State, 237 S.W.3d 720, 725 (Tex.

Crim. App. 2007); Guzman v. State, 955 S.W.2d 85, 88-89 (Tex. Crim. App. 1997); Urquhart v.

State, 128 S.W.3d 701, 704-05 (Tex. App.–El Paso 2003, pet. ref’d); Krug v. State, 86 S.W.3d 764,

765 (Tex. App.–El Paso 2002, pet. ref’d). Almost total deference is given to the trial court’s ruling

on questions of historical fact and application of law to fact questions that turn on an evaluation of

credibility and demeanor. Montanez v. State, 195 S.W.3d 101, 106 (Tex. Crim. App. 2006), citing

Guzman, 955 S.W.2d at 89. A trial court’s rulings on mixed questions of law and fact that do not

turn on the credibility and demeanor of witnesses are reviewed de novo. Id.

       When conducting our review, we view the evidence in the light most favorable to the trial

court’s ruling on the suppression motion. Wilson, 2010 WL 715253, at *3; State v. Iduarte, 268

S.W.3d 544, 548 (Tex. Crim. App. 2008); St. George v. State, 237 S.W.3d 720, 725 (Tex. Crim.

App. 2007); State v. Kelly, 204 S.W.3d 808, 818 (Tex. Crim. App. 2006). If the trial court makes

explicit fact findings, we determine whether the evidence, when viewed in the light most favorable

to the trial court’s ruling, supports those fact findings. Kelly, 204 S.W.3d at 818. If the trial court

has not made a finding on a relevant fact, we imply the finding that supports the trial court’s ruling

so long as there is some support in the record. Id. at 818-19; see Moran v. State, 213 S.W.3d 917,

922 (Tex. Crim. App. 2007). Where, as here, the trial court files findings of fact and conclusions
of law, the court’s findings will not be disturbed on appeal absent an abuse of discretion. State v.

Wood, 828 S.W.2d 471, 474 (Tex. App.–El Paso 1992, no writ); see also Cantu v. State, 817 S.W.2d

74, 77 (Tex. Crim. App. 1991). If the court’s findings are supported by the record, then we are not

at liberty to disturb them, and we will only address the question of whether the trial court improperly

applied the law to the facts. Wood, 828 S.W.2d at 474. A court’s ruling regarding a motion to

suppress will be upheld if the decision made was based on any correct theory of law applicable to

the case. St. George, 237 S.W.3d at 725; Ross, 32 S.W.3d at 856.

                                           Applicable Law

Right to Counsel

Fifth Amendment

       The Fifth Amendment to the United States Constitution accords an individual the right not

to be compelled as a witness against himself in any criminal case, and was made applicable to the

states by the Due Process Clause of the Fourteenth Amendment. U.S. CONST . AMEND . V; Malloy

v. Hogan, 378 U.S. 1, 8, 84 S.Ct. 1489, 12 L.Ed.2d 653 (1964). In Miranda v. Arizona, the United

States Supreme Court determined that the Fifth and Fourteenth Amendments’ prohibition against

compelled self-incrimination requires that custodial interrogation be preceded by a warning to an

accused that he has the right, among others, to remain silent and to the presence of an attorney during

custodial interrogation. Miranda v. Arizona, 384 U.S. 436, 479, 86 S.Ct. 1602, 16 L.Ed.2d 694

(1966); Ramos v. State, 245 S.W.3d 410, 418 (Tex. Crim. App. 2008).

       The Fifth Amendment right to counsel attaches only when affirmatively invoked by the

accused, who must unambiguously and unequivocally invoke his right to counsel before police

interrogation must cease. Miranda, 384 U.S. at 473-74; Dinkins v. State, 894 S.W.2d 330, 351-52

(Tex. Crim. App. 1995). If an accused invokes his right to have counsel present during custodial
interrogation, he is not subject to further interrogation unless counsel has been made available to him

unless he, himself, initiates further communication, exchanges, or conversations with police.

Edwards v. Arizona, 451 U.S. 477, 484-485, 101 S.Ct. 1880, 68 L.Ed.2d 378 (1981); Cross v. State,

144 S.W.3d 521, 526 (Tex. Crim. App. 2004).

       When a suspect invokes his right to remain silent, that right may, under certain

circumstances, be waived by responding to later police-initiated questioning. Michigan v. Mosley,

423 U.S. 96, 96 S.Ct. 321, 46 L.Ed.2d 313 (1975). The Fifth Amendment bars police-initiated

interrogation of an accused who, in the context of custodial interrogation, has previously asserted

his right to counsel during such interrogation unless the accused’s counsel is actually present.

Hughen v. State, 297 S.W.3d 330, 335 (Tex. Crim. App. 2009), citing Minnick v. Mississippi, 498

U.S. 146, 153, 111 S.Ct. 486, 112 L.Ed.2d 489 (1990) and Edwards v. Arizona, 451 U.S. 477, 484-

85, 101 S.Ct. 1880, 68 L.Ed.2d 378 (1981). An accused, however, can waive his previously-invoked

Fifth Amendment right to counsel if: (1) the suspect himself initiates further communication with

authorities, and (2) after doing so, validly waives the right to counsel. Cross, 144 S.W.3d at 526-27,

citing Oregon v. Bradshaw, 462 U.S. 1039, 1044-46, 103 S.Ct. 2830, 77 L.Ed.2d 405 (1983).

Sixth Amendment

       The Sixth Amendment provides that a person accused of a crime shall enjoy the right to

counsel. Gideon v. Wainwright, 372 U.S. 335, 342, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963); Hughen,

297 S.W.3d at 334. The Sixth Amendment right to the assistance of counsel does not attach prior

to the initiation of adversarial judicial proceedings, which may be initiated by way of formal charge,

preliminary hearing, indictment, information, or arraignment. Montejo v. Louisiana, —U.S.—, 129

S.Ct. 2079, 2085, 173 L.Ed.2d 955 (2009); United States v. Gouveia, 467 U.S. 180, 187-88, 104

S.Ct. 2292, 2297, 81 L.Ed.2d 146 (1984); Flores v. State, 299 S.W.3d 843, 851 (Tex. App.–El Paso
2009, pet. ref’d). Upon initiation of the adversarial judicial process, the Sixth Amendment right to

counsel guarantees an accused the right to have counsel present at all critical stages of the criminal

proceeding. United States v. Wade, 388 U.S. 218, 227-28, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967);

Hughen, 297 S.W.3d at 334. One of these critical stages includes interrogation of an accused by

police after charges have been brought. Brewer v. Williams, 430 U.S. 387, 401, 97 S.Ct. 1232, 51

L.Ed.2d 424 (1977); Hughen, 297 S.W.3d at 334.

        However, Sixth Amendment rights may be waived if an accused intelligently, knowingly, and

voluntarily waives them. Patterson v. Illinois, 487 U.S. 285, 292 n.4, 108 S.Ct. 2389, 101 L.Ed.2d

261 (1988); Hughen, 297 S.W.3d at 334. An accused validly waives his Sixth Amendment right to

have counsel present during interrogation when he is read his Miranda rights and he agrees to waive

those rights. Montejo, —U.S.—, 129 S.Ct. at 2085, 2092 (noting also that there is no reason to

distinguish an unrepresented defendant from a represented one, for Miranda warnings adequately

inform each type of defendant, under both the Fifth and Sixth Amendments, of his right to have

counsel present during questioning and make him aware of the consequences of a decision by him

to waive his Sixth Amendment rights), citing Patterson, 487 U.S. at 293 and overruling Michigan

v. Jackson, 475 U.S. 625, 635-36, 106 S.Ct. 1404, 1410-11, 89 L.Ed.2d 631 (1986) (previously

holding that when police initiate interrogation after a defendant’s Sixth Amendment assertion, at

arraignment or similar proceeding, of his right to counsel, any waiver of that right is invalid); Flores,

299 S.W.3d at 852. Thus, the Sixth Amendment does not bar police-initiated interrogation of an

accused who has previously asserted his right to counsel. Montejo, —U.S.—, 129 S.Ct. at 2085,

2092; Hughen, 297 S.W.3d at 335.

Article 38.22

        Article 38.22, section 3 of the Texas Code of Criminal Procedure sets forth the requirements
to make oral custodial statements admissible at trial and, among other things, codifies the Miranda

warnings required to be given prior to custodial confessions. TEX . CODE CRIM . PROC. ANN . art.

38.22, § 3(a) (Vernon 2005); Miranda v. Arizona, 384 U.S. 436, 479, 86 S.Ct. 1602, 1630, 16

L.Ed.2d 694 (1966). Before an oral statement may be admitted into evidence, the article requires

that the accused must be warned that:

       (1) he has the right to remain silent and not make any statement at all and that any statement
       he makes may be used against him at his trial;

       (2) any statement he makes may be used as evidence against him in court;

       (3) he has the right to have a lawyer present to advise him prior to and during any
       questioning;

       (4) if he is unable to employ a lawyer, he has the right to have a lawyer appointed to advise
       him prior to and during any questioning; and

       (5) he has the right to terminate the interview at any time . . . .

TEX . CODE CRIM . PROC. ANN . art. 38.22, § 2(a) (Vernon 2005). The article also requires: (1) that

an electronic recording of the statement, which may include a video recording, must be made; and

(2) that prior to an accused’s statement and, while the recording is being made, the accused must be

provided his warnings and must knowingly, intelligently, and voluntarily waive the rights set forth

in the warnings. TEX . CODE CRIM . PROC. ANN . art 38.22, §§ 2(a), 3(a)(1)(2) (Vernon 2005).

Voluntary Statement

       Article 38.21 of the Texas Code of Criminal Procedure provides that a statement of an

accused may be used in evidence against him if it appears that the statement was freely and

voluntarily made without compulsion or persuasion. TEX . CODE CRIM . PROC. ANN . art. 38.21

(Vernon 2005). The determination of whether a confession is voluntary is based on an examination

of the totality of the circumstances surrounding its acquisition. Penry v. State, 903 S.W.2d 715, 744
(Tex. Crim. App.), cert. denied, 516 U.S. 977, 116 S.Ct. 480, 133 L.Ed.2d 408 (1995). A confession

is involuntary if circumstances show that the defendant’s will was “overborne” by police coercion.

Creager v. State, 952 S.W.2d 852, 856 (Tex. Crim. App. 1997). That is, a statement is involuntary

if the record shows “official, coercive conduct of such a nature” that any statement obtained thereby

is “unlikely to have been the product of an essentially free and unconstrained choice by its maker.”

Alvarado v. State, 912 S.W.2d 199, 211 (Tex. Crim. App. 1995). A statement is involuntary and

inadmissible if it is induced by a promise that is of some benefit to a defendant, is positive, made or

sanctioned by someone in authority, and of such a character as would likely influence the defendant

to speak untruthfully. See Muniz v. State, 851 S.W.2d 238, 254 (Tex. Crim. App. 1993), cert.

denied, 510 U.S. 837, 114 S.Ct. 116, 126 L.Ed.2d 82 (1993).

                                             Application

       In commencing our analysis, we note that the trial court was able to observe the demeanor

and judge the credibility of the witnesses and their testimony through the course of not one but two

pretrial hearings on these matters and during trial, as well. We are also mindful that the trial court

may believe or disbelieve all or any part of a witness’s testimony, even if that testimony is not

controverted, because it is the trial court that observes first hand the demeanor and appearance of a

witness, as opposed to an appellate court which can only read an impersonal record. Ross, 32

S.W.3d at 855.

Custodial Interviews

       The trial court was able to observe, as we have from our review of the record, that the

warnings set forth on the Miranda card that was presented to Appellant during his first interview are

the same as those set forth in and required by article 38.22. TEX . CODE CRIM . PROC. ANN . art 38.22,

§§ 2(a), 3(a)(1)(2) (Vernon 2005). Likewise, the trial court was also able to consider that Appellant
had placed upon the face of the warning card his signature, the date, and the time at which he signed

the card. Appellant testified that the first interview lasted approximately one and one-half hours.

Although Appellant asserted that he requested counsel during his first interview with the detectives

but none was provided to him, the trial court expressly stated that it believed Detective Pantoja’s

testimony that Appellant had not invoked either his right to an attorney or his right to remain silent

during the first interview. We note that Detective Nevarez also testified that Appellant did not

invoke his right to an attorney. “‘Because the trial court is in the best position to evaluate the

testimony, we must defer to the trial court’s findings.’” Green v. State, 934 S.W.2d 92, 99 (Tex.

Crim. App. 1996), quoting Davis v. State, 829 S.W.2d 218, 220 (Tex. Crim. App. 1992). The trial

court’s findings that Appellant did not invoke his right to an attorney nor his right to remain silent

during the first interview are supported by the record.

       At the beginning of the second interview, and while being recorded, Appellant re-read his

Miranda warning card from his first custodial interview aloud and stated that he understood his

rights. Appellant never invoked any of his rights during this second interview. Again, in making

its rulings, the trial court reviewed the video recording of the second interview in which Appellant

made his confession to the detectives. Again, the trial court was able to evaluate the demeanor of

Appellant and the officers during the recording. Because the trial court’s findings of fact regarding

Appellant’s waiver of counsel are supported by the record, we cannot disturb them on appeal.

Wood, 828 S.W.2d at 474.

       We next determine de novo whether the trial court correctly applied the law to these facts.

Because the Fifth Amendment right to counsel attaches only when affirmatively invoked by the

accused, who must unambiguously and unequivocally invoke his right to counsel before police

interrogation must cease, and because Appellant did not invoke his Fifth Amendment right to
counsel, we find that the trial court properly applied Fifth Amendment law to these facts. Miranda,

384 U.S. at 473-74; Dinkins, 894 S.W.2d at 351-52. Likewise, although his Sixth Amendment right

to counsel attached because he was arrested pursuant to a felony criminal complaint, because

Appellant had been provided his Miranda warnings and because he had waived his right to counsel,

we find the trial court properly applied Sixth Amendment law to these facts. Montejo, —U.S.—,

129 S.Ct. at 2085, 2092, citing Patterson, 487 U.S. at 293; Hughen, 297 S.W.3d at 335.

        Consequently, because the trial court did not abuse its discretion when it denied Appellant’s

motion to suppress his custodial statements, we overrule this issue on appeal.

Voluntariness and Coercion

        In essence, Appellant next complains that his custodial statement was involuntarily made.

The trial court considered Appellant’s pretrial complaint that his wife was used as a “police agent”

for the purpose of securing a confession but never expressly ruled that she was or was not acting as

an agent of the state. Instead, the trial court ruled that the recorded conversations of Appellant and

Patricia were privileged spousal communications that would be suppressed.1 When a trial court has

not made a finding on a relevant fact in a suppression hearing, we imply the finding that supports

the trial court’s ruling so long as there is some support in the record. Kelly, 204 S.W.3d at 818-19;

see Moran v. State, 213 S.W.3d 917, 922 (Tex. Crim. App. 2007).

        Here, Detective Pantoja testified that Appellant asked to see his wife and, in turn, Detective

Pantoja asked her if she was willing to speak with Appellant. Appellant’s wife, Patricia, first

testified that Detective Pantoja asked her to see if Appellant would be able to give her any

information about what had happened and she “understood” that if she was unable to get the



        1
           The recorded communications between Appellant and his wife were, in fact, introduced into evidence at
trial by Appellant.
information, her family would not get their home back. On cross-examination, Patricia clarified that

it “seemed” to her that the family would be unable to return home if Appellant did not say anything

but agreed that Detective Pantoja never said this to her and it was just something “in [her] mind.”

At the second suppression hearing, Patricia testified that Detective Pantoja told her that if Appellant

did not “say anything,” they would not be able to “get” their home. The trial court was presented

with this conflicting testimony, clearly believed Detective Pantoja’s testimony over that of Appellant

and Patricia and we afford due deference to that decision. We also note that in his statement,

Patricia’s brother, George, explained that the officers had informed them that no one could return

to the family home until the investigation was complete. In making its rulings, the trial court

reviewed the video recording that contained the conversation between Appellant and his wife. In

its written findings of fact and conclusions of law, the trial court found that Appellant’s statement

was not coerced in any fashion, was made pursuant to an independent, informed choice of free will,

and was not influenced by any factor other than his desire to give the statements. The trial court

concluded as a matter of law that Appellant’s recorded statement was made voluntarily while he was

in custody, and that the statement met all of the requirements of Texas Code of Criminal Procedure

article 38.22. We also note from our review of the record that Patricia never told Appellant, “The

police told me to ask you to state what happened,” or any words to that effect. Considering this

evidence, we imply a finding that Appellant’s wife was not acting as an agent for the police. Kelly,

204 S.W.3d at 818-19; see Moran, 213 S.W.3d at 922.

       Regarding Appellant’s assertion that he made his statement because of his wife’s emotional

state, we again defer to the trial court’s assessment of historical fact, noting that it was free to

disbelieve Appellant’s statements that he made his custodial confession due to her emotional state.

See Johnson v. State, 68 S.W.3d 644, 652-53 (Tex. Crim. App. 2002).                We note that no
communications occurring between Appellant and his wife were ever utilized by the detectives to

sway or prompt Appellant to provide his recorded custodial statement. In fact, there is no indication

that Appellant ever knew during his custodial statement that the detectives had been previously

monitoring the spousal communications. The recording does show, however, that Appellant re-read

his Miranda warning card, which complied with the requirements of article 38.22, that he stated that

he understood his rights, and that he freely waived those rights. Giving almost total deference to the

trial court’s determination of historical facts based on credibility of the witnesses, we do not find that

there was any coercion as alleged and we find that the trial court correctly determined that

Appellant’s custodial statement was voluntarily made and could properly be used at trial. TEX . CODE

CRIM . PROC. ANN . art. 38.21 (Vernon 2005); Penry, 903 S.W.2d at 744. Accordingly, because the

trial court did not abuse its discretion by overruling Appellant’s motions to suppress his custodial

statement, we overrule this issue on appeal.

                                           CONCLUSION

        The trial court’s judgment is affirmed.



                                                GUADALUPE RIVERA, Justice

June 23, 2010

Before Chew, C.J., McClure, and Rivera, JJ.

(Do Not Publish)
