                                                                             PD-1082-15
             PD-1082-15                                    COURT OF CRIMINAL APPEALS
                                                                            AUSTIN, TEXAS
                                                           Transmitted 8/19/2015 2:00:14 PM
                                                             Accepted 8/20/2015 1:09:36 PM
                                                                             ABEL ACOSTA
                                                                                     CLERK
                         PD-__________


                       IN THE
             COURT OF CRIMINAL APPEALS
                     OF TEXAS


                    ALCADIO CERVANTEZ,
                       PETITIONER

                                v.

                    THE STATE OF TEXAS

                       **********

         Petition in Cause No. 2007-418,585, from the
        364th District Court of Lubbock County, Texas,
               Hon. Bradley Underwood presiding
    and Cause No. 07-14-00336-CR in the Court of Appeals
      for the Seventh Supreme Judicial District of Texas

                       **********

        PETITION FOR DISCRETIONARY REVIEW

                  David Crook, Crook & Jordan
                       Attorneys-at-Law
                         PO Box 94590
                        (806) 744-2082
                        (806) 744-2083 Fax
                      dcrook@nts-online.net

                   Attorney for the Petitioner,
                   ALCADIO CERVANTEZ




August 20, 2015
                       IDENTITY OF JUDGE, PARTIES, AND COUNSEL
                           (RULE 68.4(a), TEX. R. APP. PROC.)

A complete list of all parties to the trial court’s judgment or order appealed from, and the names
and addresses of all trial and appellate counsel includes:

                                ALCADIO CERVANTEZ, Petitioner
                                TDCJ#01962491
                                Fort Stockton Unit
                                1536 East IH-10
                                Fort Stockton, TX 79735

                                THE STATE OF TEXAS, Respondent


FOR THE PETITIONER:                                          FOR THE STATE OF TEXAS:

DAVID CROOK, Crook & Jordan                                  MR. JEFF FORD
PO Box 94590                                                 ATTORNEY FOR THE
Lubbock, Texas 79493                                         STATE OF TEXAS
(806)744-2082                                                Office of the District Attorney
 (806) 744-2083 (fax)                                        Lubbock County
State Bar No. 05109530                                       PO Box 10536
Attorney for the Petitioner                                  Lubbock, TX 79408-3536
                                                             (806) 775-1100
TRIAL COURT JUDGE:                                           (806) 775-1154 (fax)

Hon. Bradley Underwood                                       Hon. LISA McMINN
Lubbock County Courthouse                                    State Prosecuting Attorney
904 Broadway                                                 PO Box 12405
364th District Court, Lubbock County                         Austin, TX 78711
PO Box 10536                                                 (512) 463-1660
Lubbock, TX 79408-3536                                       (512) 463-5724 (fax)
(806) 775-1026
(806) 775-7996 (fax)




                                                                                                     2
                       TABLE OF CONTENTS
                   (RULE 68.4(a), TEX. R. APP. PROC.)

                                                               PAGE


PARTIES ………………………………………………………...……………………………2

TABLE OF CONTENTS ……………………………………………………………………...3

INDEX OF AUTHORITIES …………………………………………………………………..4

STATEMENT REGARDING ORAL ARGUMENT …………………………………………7

STATEMENT OF THE CASE ………………………………………………………………...7

STATEMENT OF PROCEDURAL HISTORY ………………………………………..….......8

PETITIONER’S GROUNDS FOR REVIEW ……………………………………………….....8

NUMBER ONE: THE COURT OF APPEALS ERRED BY FINDING THAT THE
TRIAL COURT DID NOT ABUSE ITS DISCRETION BY OVERRULING
APPELLANT’S MOTION TO SUPPRESS HIS CONFESSION AND ADMISSIONS
AND SUBSEQUENTLY ALLOWING TESTIMONY AS TO THE CONFESSION
BEFORE THE JURY, WHERE THE STATE FAILED TO SHOW BY A
PREPONDERANCE OF THE EVIDENCE THAT THE CONFESSION WAS NOT
OBTAINED BY IMPROPER INDUCEMENT OR FRAUD.

REASONS FOR REVIEW ……………………………………………………..………………..8

AS TO GROUNDS NUMBER ONE: THE DECISION OF THE COURT OF
APPEALS CONFLICTS WITH THE APPLICABLE DECISIONS OF THE
SUPREME COURT OF THE UNITED STATES.

ARGUMENT……………………………………………………………………………………...9

CONCLUSION AND PRAYER …………………………………………………...…………...17

CERTIFICATE OF COMPLIANCE…………………………………………………………….18

CERTIFICATE OF SERVICE ………………………………………………………………….18

APPENDIX ………………………………………………………………………………….......19




                                                                  3
                           INDEX OF AUTHORITIES
                       (RULE 68.4(b), TEX. R. APP. PROC.)

                                                                                       PAGE

Constitutional Provisions

U.S. CONST. Amend. V………………………………………………………………………9,11

U.S. CONST. Amend. VI………………………………………………………………………..11

U.S. CONST. Amend. XIV……………………………………………………………………9,11

Case Law, Federal

Colorado v. Connelly, 479 U.S. 157, 168 (1986)……………………………………………14,17

Jackson v. Denno, 378 U.S. 368, 380 (1964)……………………………………………………14

State Statutory Law

TEX. CRIM. PROC. Art. 38.22…………………………………………………………………...9

TEX. CRIM. PROC. Art. 38.23…………………………………………………………………...9

Case Law, State

Alvarado v. State, 853 S.W.2d 17, 19, n. 4 (Tex. Crim. App. 1993)…………………………….13

Alvarado v. State, 912 S.W.2d 199, 211 (Tex. Crim. App. 1995)……………………………….12

Benefield v. State, 994 S.W.2d 697 (Tex. App.—Houston (1st Dist.) 1999, pet. ref’d)………….15

Berry v. State, 582 S.W.2d 463, 465 (Tex. Crim. App. 1979)…………………………………...14

Burdine v. State, 719 S.W.2d 309, 318 (Tex. Crim. App. 1986)………………………………...15

Drake v. State, 123 S.W.3d 596, 603 (Tex. App.—Houston (14th Dist.) 2004, pet. ref’d.)….13,15

Espinosa v. State, 899 S.W.2d 359, 363 (Tex. App.—Houston [14th Dist.] 1995, pet. ref’d)…...13

Faulder v. State, 611 S.W.2d 630, 641-642 (Tex. Crim. App. 1980, cert. denied, 449
U.S. 874 (1980)…………………………………………………………………………………..14

Hardesty v. State, 667 S.W.2d 130, 133, n. 6 (Tex. Crim. App. 1984)………………………….15




                                                                                             4
Hererra v. State, 194 S.W.3d 656 (Tex. App.—Houston (14th Dist.) 2006, pet. ref’d)…………13

Hoya v. State, 982 S.W.2d 419, 422 (Tex. Crim. App. 1998)…………………………………...15

Jackson v. State, 705 S.W.2d 227, 231 (Tex. App.—Dallas 1986, pet. ref’d)…………………..14

Kearney v. State, 181 S.W.3d 438 (Tex. App.—Waco 2006, pet. ref’d)…………………14,15,17

Martinez v. State, 127 S.W.3d 792, 794 (Tex. Crim. App. 2004)……………………………….13

Martinez v. State, 131 S.W.3d 22 (Tex. App.—San Antonio 2003, no pet.)…………………14,17

McBride v. State, 803 S.W.2d 741, 745 (Tex. App.—Dallas 1990, pet. dis.)………………..15,17

Muniz v. State, 851 S.W.2d 238, 254 (Tex. Crim. App. 1993)…………………………………..14

May v. State, 139 S.W.3d 93, 100 (Tex. App.—Texarkana 2004, pet. ref’d)…………………...13

Oursbourn v. State, 259 S.W.3d 159 (Tex. Crim. App. 2008)…………………………………..13

Sells v. State, 121 S.W.3d 748 (Tex. Crim. App. 2003)…………………………………………12

Sinegal v. State, 582 S.W.2d 135, 137 (Tex. Crim. App. 1979)…………………………………17

Smith v. State, 779 S.W.2d 417, 427 (Tex. Crim. App. 1989)…………………………………...13

Tinlin v. State, 983 S.W.2d 65 (Tex. App.—Fort Worth 1998, pet. ref’d)…………………...13,14

Wolfe v. State, 917 S.W.2d 270, 282 (Tex. Crim. App. 1996)…………………………………..13

Zuliani v. State, 903 S.W.2d 812, 820-821 (Tex. App.—Austin 1995, pet. ref’d.)……….12,13,15




                                                                                         5
                                          PD-_____________


                                        IN THE
                              COURT OF CRIMINAL APPEALS
                                      OF TEXAS


                                    ALCADIO CERVANTEZ,
                                       PETITIONER

                                                v.

                                    THE STATE OF TEXAS

                                        **********

                         Petition in Cause No. 2007-418,585, from the
                        364th District Court of Lubbock County, Texas,
                               Hon. Bradley Underwood presiding
                    and Cause No. 07-14-00336-CR in the Court of Appeals
                      for the Seventh Supreme Judicial District of Texas

                                       **********

                         PETITION FOR DISCRETIONARY REVIEW

                                 David Crook, Crook & Jordan
                                      Attorneys-at-Law
                                        PO Box 94590
                                       (806) 744-2082
                                       (806) 744-2083 Fax

                                   Attorney for the Petitioner,
                                   ALCADIO CERVANTEZ



TO THE HONORABLE COURT OF CRIMINAL APPEALS:

       COMES NOW ALCADIO CERVANTEZ, Petitioner, by and through his attorney of

record, DAVID CROOK, and petitions the Court of Criminal Appeals of Texas to exercise its

discretionary jurisdiction to review the judgment of the Court of Appeals for the Seventh District




                                                                                                6
of Texas, Amarillo, Texas. In support of this Petition, he would show this Honorable Court as

follows.


                        STATEMENT REGARDING ORAL ARGUMENT
                            (RULE 68.4(c), TEX. R. APP. PROC.)

       The grounds for review set forth in this petition concern the failure of the court of appeals

to follow binding precedent; oral argument would be helpful to the Court in distinguishing the

factual background of the case as shown in the record inasmuch as the facts of the case play an

important role in defining the implications of Petitioner’s argument.

                                STATEMENT OF THE CASE
                              (RULE 68.4(d), TEX. R. APP. PROC.)

        On December 18, 2007, Petitioner was charged in a four-count indictment. He was

charged with Aggravated Sexual Assault (anal) pursuant to Penal Code § 22.021 [Count I],

Aggravated Sexual Assault (vaginal) pursuant to Penal Code § 22.021 [Count II], Indecency by

Contact (with the alleged victim being Xxxxxxx Xxxxxx) pursuant to Penal Code § 21.11(a)(1)

[Count III], and another count of Indecency by Contact (with the alleged victim being ------- -----

-) pursuant to Penal Code § 21.11(a)(1) [Count IV].

           An evidentiary pretrial hearing was held in the case on September 25, 2008 (RR v. 3).

Petitioner’s jury trial on guilt-innocence commenced on August 4, 2014 in the 364th District

Court, Hon. Bradley Underwood presiding. Petitioner was acquitted of Aggravated Sexual

Assault [Count I] but was convicted of Indecency with a Child by Contact [Count III] (CR v. p.

174). Sentencing proceedings took before the jury. On August 14, 2014, the jury sentenced

Petitioner to seventeen (17) years imprisonment in the Texas Department of Criminal Justice,

Institutional Division (RR v. 6, p. 128, CR pp. 75).




                                                                                                   7
         Petitioner filed a motion for new trial on September 5, 2014 (CR p. 188). Petitioner

perfected appeal on September 8th, 2014 (CR p. 191).

                          STATEMENT OF PROCEDURAL HISTORY
                            (RULE 68.4(e), TEX. R. APP. PROC.)

        The Seventh Court of Appeals rendered its decision affirming petitioner’s conviction on

July 20, 2015, in an unpublished Memorandum Opinion. No motion for rehearing was filed by

Petitioner. This petition was filed with the clerk of the Court of Criminal Appeals within the time

allowed by law.


PETITIONER’S GROUNDS FOR REVIEW:

NUMBER ONE: THE COURT OF APPEALS ERRED BY FINDING THAT THE
TRIAL COURT DID NOT ABUSE ITS DISCRETION BY OVERRULING
APPELLANT’S MOTION TO SUPPRESS HIS CONFESSION AND ADMISSIONS
AND SUBSEQUENTLY ALLOWING TESTIMONY AS TO THE CONFESSION
BEFORE THE JURY, WHERE THE STATE FAILED TO SHOW BY A
PREPONDERANCE OF THE EVIDENCE THAT THE CONFESSION WAS NOT
OBTAINED BY IMPROPER INDUCEMENT OR FRAUD.

REASONS FOR REVIEW:

AS TO GROUNDS NUMBER ONE: THE DECISION OF THE COURT OF
APPEALS CONFLICTS WITH THE APPLICABLE DECISIONS OF THE
SUPREME COURT OF THE UNITED STATES.




                                                                                                  8
                                     ARGUMENT

NUMBER ONE: THE COURT OF APPEALS ERRED BY FINDING THAT THE
TRIAL COURT DID NOT ABUSE ITS DISCRETION BY OVERRULING
APPELLANT’S MOTION TO SUPPRESS HIS CONFESSION AND ADMISSIONS
AND SUBSEQUENTLY ALLOWING TESTIMONY AS TO THE CONFESSION
BEFORE THE JURY, WHERE THE STATE FAILED TO SHOW BY A
PREPONDERANCE OF THE EVIDENCE THAT THE CONFESSION WAS NOT
OBTAINED BY IMPROPER INDUCEMENT OR FRAUD.

                                Applicable Portions of the Record

         Petitioner early filed his Motion to Suppress Confessions/Admissions and for Evidentiary

Hearing. In its original form, it averred that the confession of October 3, 2007, had been secured

by fraud, and violated his rights under the 5th and 14th Amendments to the Constitution, along

with articles 38.22 and 38.23 of the Texas Code of Criminal Procedure (CR pp. 92-94).

         At the evidentiary hearing on Petitioner’s suppression motion regarding his written

statement, Detective John Bentley of Lubbock PD testified that he took a statement from

Petitioner on October 1st, 2007 (RR v. 3, pp. 59-60). This statement was exculpatory. Bentley

later took a second statement from Petitioner on October 3rd, 2007, which contained certain

purported admissions arguably meeting the statutory elements of the offense of Indecency with a

Child.

         On cross-examination, at the pretrial suppression hearing, Bentley said he had no

independent recollection of the conversation with Petitioner on October 1, 2007 (RR v. 3, p. 69).

Bentley could not recall Petitioner saying anything that night that contradicted his written,

exculpatory statement (RR v. 3, p. 70). Bentley did not make any mechanical recording of the

first interview of any sort (RR v. 3, pp. 70-71). With regard to the second session on October 3rd,

Bentley likewise said that he could recall no admissions other than what appeared in the written

statement (RR v. 3, p. 75). Bentley seemed to tacitly admit (?) that it was standard LPD practice




                                                                                                   9
to give subjects a polygraph test, and then tell them that they had failed it, to attempt to elicit a

confession (RR v. 3, p. 76). The second session, on October 3rd, 2007, was also not recorded by

any means (RR v. 3, pp. 76-77). Bentley could or would not give any particular reason why such

statements were not recorded, a step of obvious utility in these situations (RR v. 3, p. 77).

        Petitioner testified at the suppression hearing about his encounters with Bentley (RR v. 3,

p. 80). Petitioner described giving the first [exculpatory] statement on October 1st (RR v. 3, pp.

82-83). He also testified about taking the polygraph test on October 3rd; he stated that the

examiner’s manner got more aggressive after Petitioner supposedly failed the test (RR v. 3, pp.

87-88). When Bentley interviewed Petitioner for a second time on that occasion, Bentley told

Petitioner that since Jasmine had accused him, he was more than likely going to be sent to “jail,”

but if Petitioner “worked with” Bentley, Bentley would “talk to the D.A. and get [him]

probation.” Petitioner testified that he was confronted with a choice; confess or go to “jail” (RR

v. 3, p. 89). Bentley estimated Petitioner’s “jail” term at “five to twenty” (RR v. 3, p. 89).

Counsel then approached Petitioner with the second written statement. After examining it,

Petitioner denied telling Bentley the inculpatory things contained with in it (RR v. 3, pp. 90-91).

Petitioner denied reading the statement before signing it (RR v. 3, p. 92).

        The State recalled Bentley to the stand. Bentley denied promising Petitioner probation.

Bentley denied making up anything, other than “paraphrasing” before giving Petitioner a chance

to read the statement (RR v. 3, p. 99).

        After the evidentiary portion of the hearing was over, the Court made findings adverse to

Petitioner on the confession issue (RR v. 3, p. 113).

        When trial started, before jury selection, Petitioner added a new objection to Bentley’s

testimony about his second statement from October 3, 2007, citing “improper inducement” as an




                                                                                                        10
additional basis of objection. Petitioner incorporated his earlier objections and added the

“improper inducement” objection, on the basis of the 5th, 6th, and 14th Amendments. The Court

overruled the various objections, and granted a running objection (RR v. 6, p. 9). The Court

made no additional findings in any form at that time, or later in or after the trial, simply

overruling the objections (RR v. 4, pp. 8-9).

       During trial, before the jury, when asked about any offer of any sort of deal being offered

to Petitioner to get the statement, Bentley denied it (RR v. 5, p. 258). He said (again) that he

didn’t remember anything about the October 1st sessions with Appellant other than what was in

the resulting written statement (RR v. 5, pp. 265-266). Bentley in effect stated that he

remembered nothing about the October 3rd session, saying, “What I’ve got here is what I can

recall to sir” [the written statement] (RR v. 5, p. 265). He later said, in response to a question

assuming he didn’t remember anything but the written statement, “I don’t recall very much about

it, no sir” (RR v. 5, p. 266). Bentley confirmed that the initial session on October 1st was not

videotaped or electronically recorded in any way. He also decided not to record the session on

October 3rd, 2007 (RR v. 5, p. 267). Again, re the second interview, on October 3rd, crossed on

whether or not he told Petitioner on that occasion that Petitioner was looking at prison time,

Bentley said that he did not recall telling him that. He also said that he did not recall telling

Petitioner that the fact that a child’s testimony against him was enough for an area jury to

convict, and that this meant he was going to prison unless he, Bentley, interceded with the

District Attorney’s office to get Petitioner probation (RR v. 5, pp. 273-274). Bentley denied that

Petitioner was duly frightened, but did not recall his demeanor (RR v. 5, p. 274). Bentley also

denied that the rather odd language in the statement of October 3rd was his (RR v. 5, pp. 274-

275). Although Bentley had already denied having any specific recollection of that night other




                                                                                                     11
than the written statement, he testified that he did not threaten Petitioner with prison and did not

offer to intercede with the State to get him probation (RR v. 5, p. 275).

       When Petitioner testified before the jury re the second interview, he stated that Bentley

told him that he would help him get probation and talked about the likely result of a long prison

term (RR v. 6, p. 114). According to Petitioner, Bentley told him that he would intercede with

the D.A. and try to get him probation (RR v. 6, p. 118).

       Petitioner let Bentley write the statement, which Bentley did. He claimed he did not read

the statement at the time, although he signed it (RR v. 6, pp. 119-120). He stated that the key

inculpatory phrases in it were Bentley’s. Petitioner maintained that he did not do what the

statement said. He thought that by signing he was contracting for probation; he believed that

Bentley was going to try to help him (RR v. 6, p. 122).

                                     Applicable Law

        A confession obtained in a manner that violates either statute law or the Due Process

provisions of the federal Constitution is not admissible. A defendant in a criminal case is

deprived of Due Process, and a resulting confession is inadmissible as a matter of law, if there is

a showing that the evidence was obtained by coercion, threats, or fear. Zuliani v. State, 903

S.W.2d 812, 820-821 (Tex. App.—Austin 1995, pet. ref’d.).

        Confessions are involuntary under the Due Process Clause when there is police

overreaching, i.e. official coercive conduct of such a nature that any statement obtained thereby

was unlikely to have been the produce of a free choice by its maker. Alvarado v. State, 912

S.W.2d 199, 211 (Tex. Crim. App. 1995). Due process is violated through the use of an

involuntary confession even if there is ample evidence aside from the confession to support the

conviction. Sells v. State, 121 S.W.3d 748 (Tex. Crim. App. 2003). Due Process claims of




                                                                                                   12
involuntariness involve an objective assessment of police behavior. Oursbourn v. State, 259

S.W.3d 159 (Tex. Crim. App. 2008). However, even in the absence of custody, admitting

confessions that are not voluntarily given violates Due Process. May v. State, 139 S.W.3d 93,

100 (Tex. App.—Texarkana 2004, pet. ref’d), Wolfe v. State, 917 S.W.2d 270, 282 (Tex. Crim.

App. 1996). A statement is not voluntary if there was “official coercive conduct of such a nature

that any statement obtained thereby was unlikely to have been the product of an essentially free

and unconstrained choice by its maker.” Tinlin v. State, 983 S.W.2d 65 (Tex. App.—Fort Worth

1998, pet. ref’d), citing Alvarado v. State, 853 S.W.2d 17, 19, n. 4 (Tex. Crim. App. 1993), Smith

v. State, 779 S.W.2d 417, 427 (Tex. Crim. App. 1989), May, supra, at 100.

       A thematic variation of coercive conduct is the use of improper inducement. Texas law

uses a four-prong test when evaluating whether police made an improper inducement so as to

render a confession inadmissible. To do so, there must be (1) a promise of some benefit to the

accused, (2) that is positive, (3) made or sanctioned by someone in authority, (4) that is such an

influential nature that it would cause a defendant to speak untruthfully. Martinez v. State, 127

S.W.3d 792, 794 (Tex. Crim. App. 2004), Espinosa v. State, 899 S.W.2d 359, 363 (Tex. App.—

Houston [14th Dist.] 1995, pet. ref’d), Hererra v. State, 194 S.W.3d 656 (Tex. App.—Houston

(14th Dist.) 2006, pet. ref’d.). The truth or falsity of the confession is immaterial under either

state or federal law; the question is whether or not the promise likely would lead to a false

confession. Martinez at 794-5. A finding of coercion need not depend upon actual violence by a

governmental agent. The question for admissibility in this context is whether the accused’s will

was overborne when he confessed; a confession must be the product of an essentially free and

unconstrained choice by its maker. Zuliani, supra, at 821 (Tex. App.—Austin 1995, pet. ref’d).

The promise must be shown to have induced the confession. Drake v. State, 123 S.W.3d 596,




                                                                                                     13
603 (Tex. App.—Houston (14th Dist.) 2004, pet. ref’d.), Muniz v. State, 851 S.W.2d 238, 254

(Tex. Crim. App. 1993). A confession is invalid if it was induced by a promise that was positive,

made or sanctioned by someone in authority, and of such an influential nature that it would cause

a defendant to speak untruthfully.

         Once the issue is raised via a motion to suppress a statement on the grounds of

involuntariness, the Due Process guarantee requires a trial court to hold a hearing on the

admissibility of the statement outside the presence of the jury. Jackson v. Denno, 378 U.S. 368,

380 (1964). At such a hearing the burden is on the State to prove that the confession was

voluntarily given when the issue of voluntariness has been raised. The State must show that the

defendant clearly indicated a willingness to waive the constitutional right against self-

incrimination. Faulder v. State, 611 S.W.2d 630, 641-642 (Tex. Crim. App. 1980, cert. denied,

449 U.S. 874 (1980). Once the matter is raised, the State has the burden of persuasion. Jackson

v. State, 705 S.W.2d 227, 231 (Tex. App.—Dallas 1986, pet. ref’d). The standard to be met [for

the hearing before the court] is proof by a preponderance of the evidence. Colorado v. Connelly,

479 U.S. 157, 168 (1986), Martinez v. State, 131 S.W.3d 22 (Tex. App.—San Antonio 2003, no

pet.).

                                       Standard of Review

         The question of the voluntariness of a confession is based upon an examination of the

totality of circumstances surrounding the acquisition. Tinlin, supra, at 71, Berry v. State, 582

S.W.2d 463, 465 (Tex. Crim. App. 1979), Kearney v. State, 181 S.W.3d 438 (Tex. App.—Waco

2006, pet. ref’d).

         A trial court is the sole trier of fact at a hearing on a motion to suppress. The reviewing

court is not to disturb any finding that is supported by the record. Since the trial court is the sole




                                                                                                       14
judge of the witnesses’ credibility, unless there is an abuse of discretion, the trial court’s findings

on the voluntariness of a confession will not be disturbed. Benefield v. State, 994 S.W.2d 697

(Tex. App.—Houston (1st Dist.) 1999, pet. ref’d), Martinez, supra. An appellate court is not at

liberty to disturb any finding that is supported by the record. Sells, supra, at 767. If the record

supports a trial court’s findings of fact, the reviewing court’s only inquiry will be whether the

trial court properly applied the law to the facts. Burdine v. State, 719 S.W.2d 309, 318 (Tex.

Crim. App. 1986). The trial court’s findings will not be disturbed unless there is a clear abuse of

discretion. Kearney, supra, at 443. However, the State must satisfactorily explain the coercion

allegations so that the confession is not the “fruit of the poisonous tree.” McBride v. State, 803

S.W.2d 741, 745 (Tex. App.—Dallas 1990, pet. dis.).

                                       Argument

       Generally, an appellate court must review the trial court’s ruling on the admissibility of

evidence in the light of what was before the trial court at the time the court ruled. Drake, supra,

at 605, Hoya v. State, 982 S.W.2d 419, 422 (Tex. Crim. App. 1998), Hardesty v. State, 667

S.W.2d 130, 133, n. 6 (Tex. Crim. App. 1984). However, that general rule is inapplicable where

the suppression issue was consensually re-litigated by the parties during trial on the merits.

Where the matter is reopened, the reviewing court will consider the trial testimony regarding the

suppression issue also. Kearney, supra, at pp. 446-447. Whenever an accused’s testimony of

alleged coercion is undisputed, the resulting confession is inadmissible as a matter of law.

Zuliani, supra, at 821.

       Petitioner avers that the Court of Appeals erred by failing to find that the Trial Court

made an erroneous finding with regard to the factual aspects of the suppression issue. Under

Kearney, supra], since Petitioner chose to re-litigate the suppression issue with his supposed




                                                                                                      15
confession before the jury, all aspects of the suppression record are before the reviewing court.

One factor in this calculation is the additional objection stated verbally by Petitioner, on the

record, with regard to the claim of improper inducement. In his testimony before the jury,

Petitioner added his own assertion that he would not have signed the statement without Bentley’s

promise of probation (RR v. 6, p. 125). In his testimony before the Court during the evidentiary

pretrial hearing, he testified to Bentley offering him a specific benefit, that is, Bentley would go

to the DA and get Appellant probation (RR v. 3, p. 89).

       As a preliminary observation, Bentley’s testimony was beset by fairly obvious evasions.

Both before the Court in the pretrial hearing (RR v. 3, p. 77), and before the jury (RR v. 5, p.

267), he said that he had absolutely no plausible reason for not electronically recording his

sessions with Petitioner, an operational mode that should have prevented any subsequent fuss.

       Petitioner submits as a question of possible first impression [in view of the unusually

evasive and amnesiac nature of the officer’s testimony] that the Court of Appeals erred in finding

that the Trial Court did not abuse its discretion in allowing his supposed confession into

evidence. The Trial Court’s factual findings [incomplete as they are; especially as to the second

(trial) objection] should not stand because Bentley’s testimony was fatally self-contradictory.

That is, Bentley testified both before the Court (RR v. 3, p. 75) and later before the jury (RR v. 5,

pp. 265-266) that he had no independent recollection of the October 3rd session with Petitioner.

Given that state of affairs, how he could purport to deny making any promises remains

unexplained. His answers to critical questions tended to be couched in terms of his not being

able to recall something rather than as an absolute denial (RR v. 5, pp. 273-274). By contrast,

Petitioner’s testimony about their sessions together was specific. Again, once claims of

improper coercion with regard to a confession are put forward, the case law says that it is




                                                                                                    16
incumbent upon the State to disprove them by a preponderance of the evidence. See Colorado v.

Connelly and Martinez, supra. How can that have been done here, given the State’s burden of

proof, where Petitioner made specific claims showing improper inducement and fraud and

backed them up with specific testimony, and Bentley, while denying what Petitioner said, also

testified on every occasion that he had no specific recollection of the event? In such a case an

abuse of discretion has been shown, pursuant to holdings such as that of Kearny, supra, and the

State has not satisfactorily explained the coercion allegations, as per McBride, supra. More

particularly, on the peculiarities of this record the State failed to prove the constitutional validity

of the confession by a preponderance of the evidence, as required by the holding of the U.S.

Supreme Court in Colorado v. Connelly, supra. The finding of admissibility should not have

been made where the State has the burden of proof and the State’s evidence of a voluntary

confession materially contradicted itself. Where the leading State’s witness testifies twice that

he has no independent recollections of the events he goes on to testify about, what he testifies to

should be of no probative value. The opinion of the Court of Appeals effectively failed to

address the weakness of the State’s evidence in view of the officer’s profound problems of

memory and recollection, considering that the State has the burden of proof in this regard

(Opinion of the Court of Appeals, pp. 8-9). Whenever the testimony of an accused is undisputed

as to alleged coercive acts [effectively the case here], the confession is inadmissible as a matter

of law. Sinegal v. State, 582 S.W.2d 135, 137 (Tex. Crim. App. 1979).

                         CONCLUSION AND PRAYER FOR RELIEF

        WHEREFORE, PREMISES CONSIDERED, Petitioner ALCADIO CERVANTEZ, prays

that the Court of Criminal Appeals grant his Petition for Discretionary Review, and that after

submission, this Court reverse the decision of the Court of Appeals and remand the Cause.




                                                                                                      17
                                                              Respectfully submitted,

                                                              David Crook
                                                              Crook & Jordan
                                                              Attorney-at-law
                                                              PO Box 94590
                                                              Lubbock, Texas 79493
                                                              (806) 744-2082
                                                              (806) 744-2083 Fax
                                                              dcrook@nts-online.net
                                                              Attorney for the Petitioner,
                                                              ALCADIO CERVANTEZ

                                                              _/S/ David Crook
                                                              DAVID CROOK
                                                              Texas State Bar No. 05109530

          CERTIFICATE OF COMPLIANCE WITH T.R.A.P. 9.4(i)(2)(D)

      This is to certify that the length of the foregoing Petition for Discretionary Review

conforms with the Texas Rule of Appellate Procedure 9.4, in that the brief, computer-generated,

is 3154 words, which is no longer than 4,500 words, exclusive of the pages containing the

identity of the parties and counsel, any statement regarding oral argument, the table of contents,

the index of authorities, the statement of the case, the issues presented, the signature, and the

proof of service.

                                                            /s/ David Crook _________________
                                                              David Crook

                                 CERTIFICATE OF SERVICE

       This is to certify that a true and accurate copy of the above and foregoing PETITION
FOR DISCRETIONARY REVIEW was mailed to the Hon. Jeff Ford, attorney for the State of
Texas, at his office address of Office of the District Attorney, PO Box 10536, Lubbock, TX
79408-3536. It was also mailed to Hon. Lisa McMinn, State Prosecuting Attorney, P.O. Box
12405, Austin TX 78711, on August 19, 2015.
                                                                      /s/David Crook
                                                                      David Crook



                                                                                                    18
APPENDIX




           19
                                       In The
                                  Court of Appeals
                         Seventh District of Texas at Amarillo

                                         No. 07-14-00336-CR


                             ALCADIO CERVANTEZ, APPELLANT

                                                   V.

                               THE STATE OF TEXAS, APPELLEE

                              On Appeal from the 364th District Court
                                      Lubbock County, Texas
             Trial Court No. 2007-418,585, Honorable Bradley S. Underwood, Presiding

                                            July 20, 2015

                                 MEMORANDUM OPINION
                      Before QUINN, C.J., and CAMPBELL and PIRTLE, JJ.

        Appellant, Alcadio Cervantez, appeals his conviction for indecency with a child1

and   resulting   prison   sentence   of   seventeen   years’   confinement.      On   appeal   appellant  

argues the trial court erred by failing to grant his motion seeking suppression of a

written statement procured by improper inducement or fraud and the case must be

abated and remanded for additional findings and conclusions on his post-suppression-




        1
            See TEX. PENAL CODE ANN. § 21.11(a)(1) (West 2011).
hearing   improper  inducement   complaint.      Finding   no   error,  we   will   overrule   appellant’s  

two issues and affirm the judgment of the trial court.


                                              Background


        Appellant gave two non-custodial written statements to a police detective, the

first on October 1, 2007, and the second on October 3, 2007. Neither was electronically

recorded. In his October 1 statement, appellant denied touching J.F. or any other child

in a sexual manner, and specifically denied touching her breasts or sexual organ.


        Appellant voluntarily took a polygraph examination administered by police on

October 3, 2007. When the operator told appellant the results were not supportive of

his first statement, appellant gave his October 3 statement. As with his October 1

statement, the October 3 statement included an acknowledgement he received the

statutory warnings.2


        In his October 3 statement, appellant denied putting his hand down J.F.’s  pants  

but admitted touching and squeezing her breast. According to the statement, appellant

is a high school graduate and able to read and write the English language. Appellant

signed the statement beneath the averment that he had read the document and it was

true and correct. Appellant was not in custody when he gave the October 3 statement

and freely left the police station afterward.




        2
         The statutory warnings include those required by Miranda v. Arizona, 384 U.S.
436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966), and are the right to remain silent, any
statements can be used against the accused, the right to an attorney prior and during
questioning, the right to have an attorney appointed, and the right to terminate an
interview. See TEX. CODE CRIM. PROC. ANN. art. 38.22 § (2) (West Supp. 2014).

                                                     2
          A December 2007 indictment charged appellant with two counts of indecency

with a child and two counts of aggravated sexual assault of a child.


          On   appellant’s  motion,   a   suppression   hearing   was   held   in  September  2008.      At  

the   hearing,   appellant’s   October   1   statement   was   marked   State’s   exhibit   two   and   his  

October   3   statement,   State’s   exhibit   three.      When   the   State offered the October 3

statement, counsel for appellant objected on the ground that the statement was the

product   of   fraud   in   the   factum,   “real   fraud,”   was   obtained   by   “guile,”   and   violated   the  

federal and state constitutions.


          According   to   appellant’s   suppression hearing testimony, after the polygraph

examination  the  administering  officer  told  him  he  “just  failed  dramatically  or  something  

like  that.”    Appellant  also  testified  the  detective  told  him,  “if  I  worked  with  [the  detective],  

he would just talk with the D.A. and get me probation. So, he gave me a choice, either

confess  and  get  probation  or  don’t  confess  and  go  to  jail.”    He  further  said  the  detective  

told  him  he  would  likely  receive  a  sentence  of  “five  to  20.”    Appellant  denied  he  told  the  

detective   he   touched   the   child’s  breast.      Appellant   did   not   deny   signing   the   October  3  

statement  but  when  asked  if  he  had  read  the  document  he  replied,  “Not  really”  and  later  

“No,  I  didn’t.”        


          Following  appellant’s  testimony,  the  State  recalled  the  detective.    When asked by

the   prosecutor   if   he   told   appellant   “that   if   he   would   confess   to   this   offense   that   [the  

detective]   would   talk   to   the   D.A.   and   make   sure   that   [appellant]   got   probation,”   the  

detective  replied,  “No,  sir.”    He  denied  fabricating  the  substance  of appellant’s  October  

3  statement  and  explained,  “What  I  do  is  I  paraphrase.    I  write  the  statement  based  on  



                                                          3
what he told. Some of it may be paraphrasing, which he has the opportunity to read the

statement.”    The  detective  added  that  he  told  appellant,  “If there needs to be anything

added,   taken   out,   deleted,   changed   in   any   way,   just   tell   me,   we’ll   make   the   changes.”    

But appellant did not want to make any changes. According to the detective, appellant

read and signed the statement.


        At the conclusion of the hearing, the trial court dictated the following into the

record:


        Let me make some findings with respect to [the two statements]. The
        Court finds that the Defendant voluntarily went to the police department on
        both October 1st and October 3rd, 2007. The Court finds that the
        Defendant was warned of his Miranda rights at each—on each of those
        occasions. The Court finds that the Defendant was not promised
        anything. The Defendant was not threatened in any manner. The Court
        was—the Defendant was offered the opportunity to read each of the
        statements after giving each of the statements. The Court finds that the
        Defendant freely, knowingly and voluntarily gave the statements contained
        in  State’s  Exhibits  2  and  3.

        The   Court   does   not   believe   the   Defendant’s   evidence of being made
        promises. The Court finds that that testimony is not credible. The Court
        believes or finds that the Defendant freely, knowingly and voluntarily gave
        both   statements,   State’s   Exhibits   2   and   State’s   Exhibit   3.      The   Court  
        further finds that the Defendant was allowed to leave on his own volition
        after  giving  State’s  Exhibits  2  and  3.


        The case was tried in August 2014.                    The State proceeded on one count of

aggravated sexual assault of a child and one count of indecency with a child. Before

voir dire, during a hearing, appellant briefly argued the October 3 statement should be

suppressed because it was procured by improper inducement. The court overruled the

objection but did not state related findings and conclusions in writing or on the record.




                                                         4
        During the guilt-innocence phase, the parties consensually re-litigated the

voluntariness   of   appellant’s   October   3   statement.3             The October 1 statement was

admitted without objection through the detective. When the State offered the October 3

statement the trial court conducted a hearing outside the presence of the jury. Counsel

for   appellant   objected   to   the   statement’s   admission   citing   “all   previous   objections  

already  made  in  this  cause.”    The  court  overruled  the  objections  and  granted  appellant a

running   objection.      The   detective   denied   at   any   time   in   his   career   “promis[ing]   to   give  

somebody a specific deal or a specific plea bargain if they gave you a specific

statement.”    He  agreed  that  doing  so  could  jeopardize  his  career.  


        Appellant also testified at trial. When asked on direct examination about an offer

of probation for a statement, appellant responded:


        A.       He put that he [the detective] was going to talk to the D.A.,
                 recommend me get probation because I did not have a criminal
                 history.

        Q.       That’s  what  he  said?

        A.       That’s  exactly  what  he  said.

        Q.       Along with the five to 20?

        A.       Yes.




        3
          Generally, in determining whether the State established voluntariness of a
statement, appellate review is limited to the suppression hearing record. O’Hara   v.  
State, 27 S.W.3d 548, 551 (Tex. Crim. App. 2000). However, an appellate court may
also   consider   evidence   adduced   at   trial   in   instances   where,   as   here,   “the   suppression  
issue has been consensually re-litigated   by   the   parties   during   trial   on   the   merits.”    
Turrubiate v. State, 399 S.W.3d 147, 150-151 (Tex. Crim. App. 2013) (citing Rachal v.
State, 917 S.W.2d 799, 809 (Tex. Crim. App. 1996)).

                                                         5
Appellant   further   testified   that   he   “thought   [the   detective]   was   going   to   actually   talk   to  

someone and see what they—what  he  could  do  .  .  .  .”    Appellant  again  acknowledged

he signed the statement and again asserted he did not read it. On cross-examination

the  prosecutor  asked  appellant,  “So  [the  detective]  didn’t  actually  promise  you  any  type  

of   probation?      Appellant   replied,   “No.      He   says   he’s   going   to   put   in   a good word. He

said  he  was  trying  to  get  me  probation.”


         The jury charge included an instruction requiring the jury to find beyond

reasonable doubt that appellant voluntarily gave the written statements before

considering them as evidence.                 The jury acquitted appellant of aggravated sexual

assault of a child but convicted him of indecency with a child.                               Punishment was

assessed by the jury as noted.


                                                     Analysis


         By his first issue, appellant argues the trial court abused its discretion by

overruling his motion to suppress the October 3 statement because it was procured by

improper inducement or fraud.


         We  apply  the  abuse  of  discretion  standard  when  reviewing  a  trial  court’s ruling on

a motion to suppress evidence. Villarreal v. State, 935 S.W.2d 134, 138 (Tex. Crim.

App. 1996). Under  this  standard,  we  defer  to  the  trial  court’s  determination  of  historical  

facts and credibility. Carmouche v. State, 10 S.W.3d 323, 327 (Tex. Crim. App. 2000).

At a suppression hearing, the trial court is the sole fact-finder and may choose to

believe or disbelieve   any   or   all   of   the   witnesses’ testimony. Alvarado v. State, 853

S.W.2d 17, 23 (Tex. Crim. App. 1993). We   also   afford   deference   to   a   trial   court’s  


                                                         6
“application   of   law   to   fact   questions,”   if   the   resolution   of   those   questions turns on an

evaluation of credibility and demeanor. Guzman v. State, 955 S.W.2d 85, 89 (Tex.

Crim. App. 1997). The prevailing party at   the   suppression   hearing   is   entitled   to   “the

strongest legitimate view of the evidence and all reasonable inferences that may be

drawn   from  that   evidence.”     State v. Johnston, 336 S.W.3d 649, 657 (Tex. Crim. App.

2011) (quoting State v. Garcia-Cantu, 253 S.W.3d 236, 241 (Tex. Crim. App. 2008)).

We review de novo mixed questions of law and fact that do not depend on an evaluation

of credibility and demeanor. Johnston, 336 S.W.3d at 657. Purely legal questions are

also reviewed de novo. Id.


        At the hearing on a motion to suppress a statement on the ground of

involuntariness,   it   is   the   State’s   burden   to   prove by a preponderance of the evidence

that  the  defendant’s  statement  was  given  voluntarily.     Tello v. State, No. 14-06-00525-

CR, 2007 Tex. App. LEXIS 6658, at *5 (Tex. App.—Houston [14th Dist.] Aug. 21, 2007,

pet. refused) (mem. op., not designated for publication) (citing Alvarado v. State, 912

S.W.2d 199, 211 (Tex. Crim. App. 1995)); accord Gentry v. State, 770 S.W.2d 780, 789

(Tex.   Crim.   App.   1988)   (“The   burden   of   proving   that   a   confession   was   rendered  

voluntarily   is   on   the   state”).      That   the   question   of   the voluntariness of his October 3

statement was raised at trial and was submitted to the jury does not preclude

appellant’s   challenge   to   the   trial   court’s   ruling   on   its   admissibility.      Pierce v. State, 32

S.W.3d 247, 253 (Tex. Crim. App. 2000).


        In Texas a defendant may contend a statement offered against him was not

freely and voluntarily made and must be excluded from evidence under several different

theories, statutory and constitutional. Oursbourn v. State, 259 S.W.3d 159, 169 (Tex.

                                                        7
Crim. App. 2008) (outlining theories and discussing application of each). Some, but not

all, theories depend on a showing of overreaching by police. Id. at 169-72.


        On appeal, appellant contends the evidence shows the detective overreached by

threatening him with a long prison sentence and by promising him probation if he

confessed, and that he signed the October 3 statement only because of those actions

by the detective. For purposes of this opinion, we will assume, without deciding, that

appellant’s   testimony,   if   believed, would establish his October 3 statement was

involuntarily given, under one or more of the theories recognized under Texas law.

See, e.g., Oursbourn, 259 S.W.3d at 170-73.


        The   trial   court,   however,   was   not   required   to   accept   appellant’s   version   of   his

interactions with the detective, and the findings the court dictated into the record make

clear  it  did  not  find  appellant’s  version  credible.    See State v. Ballard, 987 S.W.2d 889,

891 (Tex. Crim. App. 1999) (at suppression hearing trial court exclusive judge of weight

and   credibility   of   witnesses’   testimony). Appellant   contends   the   detective’s   testimony  

was   “fatally   self-contradictory”   and   wholly   unworthy   of   belief   when   compared   with   his  

more specific recollections.           He points to the occasions on which the detective

acknowledged he had no independent recollection of his October 3 session with

appellant,   and   asks   how   the   detective   could   deny   appellant’s   allegations   without   such  

recollection.    The  trial  court  reasonably  saw  in  the  detective’s  testimony  a  clear denial

that he threatened appellant or made promises to induce his October 3 statement. We

conclude without difficulty that resolution of the contradictions appellant sees in the




                                                      8
detective’s   testimony   was   a   matter   exclusively   within   the   province   of   the fact finder.4

See Martinez v. State, No. 11-13-00236-CR, 2015 Tex. App. LEXIS 6473, at *7 (Tex.

App.—Eastland June 25, 2015, n.p.h.) (mem. op., not designated for publication) (citing

Sharp v. State, 707 S.W.2d 611, 614 (Tex. Crim. App. 1986) (noting as sole judge of

weight   and   credibility,   “trier of fact may believe all,   some,   or   none   of   a   witness’s

testimony”).    


        Appellant’s  first  issue  is  meritless  and  is  overruled.


        In his second issue, appellant argues that because the trial court did not produce

written findings of fact and conclusions of law, after overruling his improper inducement

objection, the appeal must be abated and the case remanded for additional findings. As

noted, appellant voiced this new suppression ground on the day of trial prior to voir dire.

It was overruled without additional findings or conclusions.


        Article 38.22, § 6 of the Code of Criminal Procedure provides in pertinent part:

        If the statement has been found to have been voluntarily made and held
        admissible as a matter of law and fact by the court in a hearing in the
        absence of the jury, the court must 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, which order
        shall be filed among the papers of the cause.

TEX. CODE CRIM. PROC. ANN. art. 38.22, § 6 (West Supp. 2014). A trial court may satisfy

the requirements of article 38.22, section 6 by dictating its findings and conclusions into

        4
         We  note  also  appellant’s  testimony  was  not  free from inconsistency. Appellant
was emphatic at the suppression hearing that the detective said he would obtain
probation for appellant from the district attorney in exchange for a confession but jail
awaited should he not confess. In his trial testimony, however, appellant denied that the
detective  promised  him  “any  type  of  probation.”    Rather,  he  then  said,  the  detective  told  
him  he  would  “put  in  a  good  word.    He  said  he  was  trying  to  get  me  probation.”    Here  
again, under settled law, resolution of such inconsistencies is the task of the fact finder.

                                                    9
a reporter's record that is transcribed and included in the appellate record. Mbugua v.

State, 312 S.W.3d 657, 668 (Tex. App.—Houston [1st Dist.] 2009, pet. refused) (citing

Murphy v. State, 112 S.W.3d 592, 601-02 (Tex. Crim. App. 2003)). Whether set forth in

a  separate  writing  filed  in  the  clerk’s  record  or  dictated  into  the  reporter’s  record,  it  is  not  

necessary  that  the  findings  of  fact  be  made  “with  minute  specificity  as  to  every  alleged  

and hypothetical possibility for physical or mental coercion. But the trial court must

make findings of fact and conclusions of law adequate to provide an appellate court with

a  basis  upon  which  to  review  the  trial  court’s  application  of  the  law  to  the  facts.”    Wicker

v. State, 740 S.W.2d 779, 783 (Tex. Crim. App. 1987) (citations and internal quotation

marks omitted); Hester v. State, 535 S.W.2d 354, 356 (Tex. Crim. App. 1976)  (“Without  

adequate findings of fact [an appellate court] is much handicapped in its review upon

appeal   of   the   trial   court’s   ruling,   because   it   lacks   an   adequate   record   of   the   basis   for  

that ruling. One purpose for requiring the trial court to enter an order stating its findings

. . . is to make the record reflect, for the parties and for possible appellate review, the

basis  for  the  ruling”  (internal  quotation  marks  omitted)).      


         In his motion to suppress, appellant alleged his October 3 statement was

involuntary   because   it   was   obtained   by   “fraud   in   the   factum”   or   “real   fraud.”      These  

suppression grounds were reiterated at the hearing.                              The improper inducement

appellant subsequently alleged was the threat of a lengthy prison sentence and the

promise of probation for a confession. He proffered no additional evidence to support

the new ground.              Thus on the evidence appellant depended for his improper

inducement   complaint   the   court   had   already   found   appellant   “was   not   promised  

anything,”   “was   not   threatened,”   and   “freely,   knowingly   and   voluntarily   gave”   the  


                                                          10
October 1 and October 3 statements.              Further, the court stated it did not believe

appellant’s  evidence  of  promises  and  found  his  testimony  concerning  promises  was  not  

credible.    We  find  the  court’s  findings  and  conclusions  sufficiently  subsumed  appellant’s  

later  improper  inducement  suppression  ground.    Appellant’s  second  issue  is  overruled.    


                                            Conclusion


       Having  overruled  appellant’s  two  issues,  we  affirm  the  judgment  of  the  trial  court.




                                                      James T. Campbell
                                                          Justice


Do not publish.




                                                 11
