                                                                                       ACCEPTED
                                                                                   01-15-00074-CR
                                                                        FIRST COURT OF APPEALS
                                                                                HOUSTON, TEXAS
                                                                             10/30/2015 4:33:03 PM
                                                                             CHRISTOPHER PRINE
                                                                                            CLERK

                       No. 01-15-00074-CR

                                In the                          FILED IN
                         Court of Appeals                1st COURT OF APPEALS
                                                             HOUSTON, TEXAS
                               For the                   10/30/2015 4:33:03 PM
                       First District of Texas           CHRISTOPHER A. PRINE
                             At Houston                           Clerk

                       ♦
                           No. 1256403
                     In the 337th District Court
                      Of Harris County, Texas
                       ♦
                   Judist Lamond Broussard
                            Appellant
                                 v.
                        The State of Texas
                             Appellee
                       ♦
                      State’s Appellate Brief
                       ♦



Clinton A. Morgan                                Devon Anderson
Assistant District Attorney                      District Attorney
Harris County, Texas                             Harris County, Texas
State Bar No. 24071454
morgan_clinton@dao.hctx.net                      Sunni Mitchell
                                                 Donna Logan
1201 Franklin St., Suite 600                     Assistant District Attorneys
Houston, Texas 77002                             Harris County, Texas
Telephone: 713.274.5826




                   Oral Argument Not Requested
               Statement Regarding Oral Argument

     The appellant requested oral argument, though he gave no

particular reason why. The State believes the briefs in this case

adequately apprise this Court of the issues and the law, and any

marginal benefit from oral argument does not justify the considerable

amount of time that preparation for oral argument requires of the

parties and the Court. Therefore, the State does not request oral

argument.




                                  i
                         Identification of the Parties

Counsel for the State:

      Devon Anderson
            District Attorney of Harris County

      Sunni Mitchell & Donna Logan
            — Assistant District Attorneys at trial

      Clinton A. Morgan
             Assistant District Attorney on appeal

Appellant:

      Judist Lamond Broussard

Counsel for the Appellant:

      Joseph Salhab
           — Counsel at trial

      Franklin Bynum
           — Counsel on appeal


Judge on Original Application:

      A. Reagan Clark
            Presiding judge




                                      ii
                                                  Table of Contents

Statement Regarding Oral Argument ................................................. i
Identification of the Parties .............................................................. ii
Table of Contents ................................................................................ iii
Index of Authorities ............................................................................. v
Statement of the Case .......................................................................... 1
Statement of Facts ................................................................................ 1
Summary of the Argument .................................................................. 2
Argument ............................................................................................... 3
   The trial court did not err in denying the appellant’s motion to
   suppress his confession. The warrant affidavit contained a substantial
   basis to support the magistrate’s finding of probable cause.
   Additionally, to whatever degree there was police “misconduct” here,
   it was so minor that it was not a factor in obtaining the appellant’s
   confession. ....................................................................................................................... 3
       I. Factual Background: The appellant filed a motion to suppress
       his confession. After a hearing, the trial court denied it. ........................ 3
           A.      The Appellant’s Motion ........................................................................... 3
           B.      Cisneros’s Testimony ................................................................................ 5
           C.      The Warrant Affidavit............................................................................... 7
           D.      Arguments of the Parties and the Trial Court’s Ruling .............. 8
       II. Legal Background ........................................................................................ 10
           A. A trial court’s ruling on a motion to suppress is reviewed
           with deference, and will be affirmed under any applicable theory
           of law...................................................................................................................... 10
           B. On review, a magistrate’s probable cause determination is
           entitled to deference. ...................................................................................... 10
           C. If a statement is taken from a defendant arrested on an
           invalid warrant, the statement is still admissible if the statement
           is sufficiently attenuated ............................................................................... 11


                                                                  iii
      III. Argument ........................................................................................................ 13
         A. Though it would have been better had Cisneros included
         additional information in the affidavit, the information in the
         affidavit was enough to give the magistrate a substantial basis for
         determining that probable cause existed. ............................................. 13
         B. Even if the affidavit did not establish probable cause, the
         appellant’s confession was sufficiently attenuated from any
         violation of the law as to be admissible. ................................................. 16
             1. Miranda Warnings................................................................................. 16
             2. Temporal Proximity .............................................................................. 17
             3. Intervening Circumstances ............................................................... 18
             4. Purpose and Flagrancy of Official Misconduct.......................... 18
             5. Weighing the Factors............................................................................ 19
Conclusion .......................................................................................... 21
Certificate of Compliance and Service ........................................... 22




                                                             iv
                                               Index of Authorities



Cases
Bell v. State
  724 S.W.2d 780 (Tex. Crim. App. 1986) ........................................................... 17
Castelan v. State
  54 S.W.3d 469 (Tex. App.—
  Corpus Christi 2001, no pet.) ............................................................................... 20
Farmah v. State
  883 S.W.2d 674 (Tex. Crim. App. 1994) ........................................................... 19
Flores v. State
  319 S.W.3d 697 (Tex. Crim. App. 2010) ........................................................... 11
Maixner v. State
 753 S.W.2d 151 (Tex. Crim. App. 1988) ........................................................... 16
Martinez v. State
 348 S.W.3d 919 (Tex. Crim. App. 2011) ........................................................... 10
Miller v. State
 736 S.W.2d 643 (Tex. Crim. App. 1987) ........................................................... 19
Monge v. State
 276 S.W.3d 180 (Tex. App.—
 Houston [14th Dist]. 2009), aff’d, 315 S.W.3d 35 (Tex. Crim. App.
 2010) .............................................................................................................................. 13
Monge v. State
 315 S.W.3d 35 (Tex. Crim. App. 2010) ............................................... 12, 13, 18
Porath v. State
  148 S.W.3d 402 (Tex. App.—
  Houston [14th Dist.] 2004, no pet.)................................................................... 10
State v. Duarte
  389 S.W.3d 349 (Tex. Crim. App. 2012) ........................................................... 11
State v. Steelman
  93 S.W.3d 102 (Tex. Crim. App. 2002) .............................................................. 10




                                                                   v
Valadez v. State
  ___ S.W.3d ___, 04-14-00626-CR, 2015 WL 5439087 (Tex. App.—
  San Antonio Sept. 16, 2015, pet. filed) ............................................................. 11
Ware v. State
 724 S.W.2d 38 (Tex. Crim. App. 1986) .............................................................. 11




                                                   vi
                         Statement of the Case

        The appellant was indicted for capital murder. (CR 15). The

appellant pleaded not guilty, but a jury found him guilty as charged. (CR

115, 117). Because the State did not seek the death penalty, the trial

court sentenced the appellant to confinement for life, without the

possibility of parole. (CR 117). The trial court certified the appellant’s

right of appeal, and the appellant filed a timely notice of appeal. (CR 116,

120).


                           Statement of Facts

        In May 2008, Houston police began an investigation into a drug

ring run by Juan Figueredo and Jonathan Siros. (5 RR 20-25). As part of

this investigation, drug-possession charges were brought against

Enrique Velasquez, a member of the ring. (5 RR 29). Shortly after his

arrest, Velasquez agreed to become an informant. (5 RR 30-31). He was

released from jail so that he could gather additional evidence for the

police. (5 RR 32-33, 38-39).

        Siros became suspicious about the circumstances of Velasquez’s

release. (5 RR 184-86). After police used information from Velasquez to

obtain a search warrant for Siros’s house, Siros told Figueredo that he

                                     1
knew Velasquez was the informant. (5 RR 45-46, 49-50, 188-89). Siros

asked Figueredo for $6,000 so that he could hire someone to kill

Velasquez. (CR 192-95). Siros used the money to hire the appellant to

kill Velasquez; the appellant used part of the money to hire Donald

Strong to help him. (State’s Ex. 47). In the early morning of November

19, the appellant drove Strong to Velasquez’s house and the two of them

laid in wait. (State’s Ex. 47). When Velasquez came out of his house to go

to work, Strong shot him, fatally. (State’s Ex. 47; 6 RR 118-24). After

being arrested by police, the appellant confessed to his involvement in

the murder. (See State’s Ex. 47).


                          Summary of the Argument

      In a single point of error, the appellant alleges that the trial court

erred in not suppressing his confession, because, he argues, the

confession was obtained as the result of an illegal arrest. Specifically, the

appellant argues that, while police had an arrest warrant, the

supporting affidavit did not contain probable cause.

      The State believes that, giving due deference to the magistrate and

trial court, there is sufficient information in the warrant to affirm the

trial court’s ruling. Alternatively, because the police had additional


                                     2
information beyond what was in the affidavit, the police “misconduct” in

this case was so minor — consisting of simply leaving out some

information from an affidavit — that, combined with reading the

appellant his Miranda rights and waiting until the next morning before

taking his statement, any taint from the misconduct was attenuated by

the time the appellant made his confession.


                              Argument


The trial court did not err in denying the appellant’s motion to
suppress his confession. The warrant affidavit contained a
substantial basis to support the magistrate’s finding of probable
cause. Additionally, to whatever degree there was police
“misconduct” here, it was so minor that it was not a factor in
obtaining the appellant’s confession.

    I.   Factual Background: The appellant filed a motion to
         suppress his confession. After a hearing, the trial court
         denied it.

                A. The Appellant’s Motion

      Prior to trial, the appellant filed a motion to suppress any

statements that he had made to the police. (CR 77-80). This motion

alleged that the appellant’s statements were “the result of coercion and

the use of a two-step interrogation process on the part of law

enforcement officers.” (CR 77). The motion alleged “intimidation on the

part of the police officer and agents of the State of Texas.” (CR 77).
                                   3
Moreover, the motion alleged, the statements were obtained in violation

of the appellant’s “right to remain silent and right to counsel as

guaranteed by” seven constitutional and statutory provisions. (CR 77).

Finally, the motion alleged that the statements “were not taken in

accordance with the statutory requirements of Texas law pertaining to

the admissibility of statements.…” (CR 78). The motion asked for a pre-

trial hearing. (CR 79).

      The trial court held a hearing prior to the beginning of testimony.

On the day of the hearing, the appellant filed an “Amended Motion to

Suppress Defendant’s Statements.” (CR 96-100). Defense counsel

advised the trial court that this amended motion contained “a minor

addition,” but was “[e]ssentially … the one we filed previously.” (5 RR 4).

In addition to the allegations in the original motion, the amended

motion alleged “[l]aw enforcement officers unlawfully detained [the

appellant] without probable cause and without a valid arrest warrant,”

and thus the appellant’s custodial statements were the result of an

illegal arrest. (CR 97).




                                    4
                    B. Cisneros’s Testimony

      The only witness at the hearing was Houston Police Sergeant Eli

Cisneros. Cisneros was the lead investigator into Velazquez’s murder. (5

RR 4). Cisneros said that a couple of weeks after Velasquez’s death he

attended a debriefing of Figueredo by federal law enforcement officers.

(5 RR 5-6). Figueredo told the officers that prior to Velazquez’s death,

Siros had come to suspect that Velazquez was an informant. (5 RR 32).

Figueredo said that Siros had asked for $6,000 in order to have

Velazquez killed, and Figueredo had lent him the money. (5 RR 36).

Figueredo said that Siros originally approached someone named

Lawrence Washington, aka “Wash,” to do the killing, but he was unable

to take the job. (5 RR 34). Figueredo said that after Wash turned down

the job, Siros found someone named “Ju” to do it. (5 RR 34-35).

Figueredo said that at later point, after Velazquez was dead, he asked

Siros who had done the killing, and Siros told him that Ju had taken care

of it. (5 RR 34).

      Police eventually recovered a phone from Siros that had a number

listed for “Ju.” (5 RR 47). After Figueredo identified a picture of the

appellant as “Ju,” Cisneros obtained an arrest warrant for the appellant.

(5 RR 47-48). The appellant was arrested on March 23, 2010, and

                                    5
brought to the HPD homicide division for questioning around 9:40 pm.

(5 RR 10-11).

      Upon arrival, the appellant looked to be “awake, alert, and

oriented,” and “physically fine.” (5 RR 11-12). Cisneros read him the

required statutory warnings, and the appellant agreed to speak with

Cisneros. (5 RR 13-14). The appellant requested a polygraph

examination; because a polygrapher could not be located at such a late

hour, the interview was terminated. (5 RR 14-15). Cisneros took the

appellant to the HPD jail to wait overnight. (5 RR 15).

      The next morning, Cisneros picked up the appellant at around

9:30 am. (5 RR 15-16). The appellant seemed physically and mentally

fine. (5 RR 16). Cisneros took the appellant to an interview room at the

homicide division, and another officer began making arrangements for a

polygraph examination. (5 RR 16).

      Cisneros went into the interview room and asked the appellant

again if he was sure he wanted to take a polygraph. (5 RR 18). The

appellant said that he did, but then he started asking Cisneros about the

sorts of questions he would be asked: “Are they going to ask if I’m the

one who actually did the killing[?]” (5 RR 18). Cisneros told the

appellant that he would be asked “multiple questions about the case
                                    6
itself.” (5 RR 18). The appellant decided he did not wish to take a

polygraph, but instead wished to speak to Cisneros. (5 RR 19). Cisneros

turned on the video recorder, and the appellant proceeded to confess to

his role in the murder. (5 RR 20-22; State’s Ex. 47).


                 C. The Warrant Affidavit

      Cisneros’s warrant affidavit does not contain as much detail as did

his testimony at the hearing on the motion to suppress. The affidavit

contains three substantive paragraphs. (See State’s Ex. 68). In the first

paragraph, Cisneros introduces himself and the describes the facts of

Velazquez’s murder. Cisneros states that he had come to learn that

Velazquez was a confidential informant for the Houston Police

Department. Cisneros then states that Velazquez had worked for a

narcotics organization headed by Figueredo, and that Figueredo, then in

federal custody, had told Cisneros that he had information regarding

Velazquez’s death.

      In the second paragraph, Ciscneros states that “on a date prior to

Thanksgiving in November 2009,” Siros told Figueredo that Velazquez

was the reason Siros had been arrested, and Siros wanted $6,000 in

order to “take care of it.” Figueredo understood “take care of it,” to mean


                                     7
killing Velazquez. Figueredo lent Siros the money. Siros originally told

Figueredo that he was going to get someone named “Washington” to

commit the murder; in a later conversation, Siros told Figueredo that

Washington “was unable to do it,” so Siros “had asked ‘Ju’ to do it.”

      In the third paragraph, Cisneros describes his efforts to identify

“Ju.” He states that federal authorities had obtained a cell phone

belonging to Siros, and the phone had a number listed for “Jew.” Cisneros

showed a photograph of the appellant to Figueredo, who identified it as

a picture of “Ju.”


                     D. Arguments of the Parties and the Trial Court’s
                        Ruling

      After hearing Cisneros’s testimony, and admitting into evidence

the affidavit and the video of the appellant’s confession, the trial court

heard arguments from the parties. The State argued that the affidavit

contained probable cause to justify the arrest, and that the appellant’s

subsequent statement was made voluntarily after he knowingly and

intelligently waived his statutory rights. (5 RR 53-54).

      Defense counsel replied by arguing that the affidavit did not state

probable cause. Specifically, defense counsel pointed out that, while the

affidavit stated that Siros had asked the appellant to kill Velazquez, it did

                                     8
not state that the appellant agreed to or actually did kill Velazquez. (5

RR 55-56). Defense counsel argued that the lack of probable cause in the

affidavit meant that the appellant’s arrest was illegal, and, “under the

well[-]known fruit of the poisonous tree doctrine that would render the

taking of the statement a fruit of that poisonous tree.…” (5 RR 57).

      The State replied that the evidence in the warrant was sufficient to

establish probable cause. The State pointed out that the warrant

established: 1) Velazquez had been murdered; 2) Siros asked for money

to have Velazquez killed; 3) Siros had contact information for the

appellant; 4) After Washington backed out the deal, Siros asked the

appellant. (5 RR 58).

      The trial court found “there to be probable cause for the arrest of

the [appellant].” (5 RR 58). The trial court further found that the

appellant’s statement was made voluntarily, after have he had been

properly advised of his rights. (5 RR 59). Accordingly, the trial court

denied the motion. (5 RR 59).




                                    9
    II.      Legal Background

                A. A trial court’s ruling on a motion to suppress is
                   reviewed with deference, and will be affirmed under
                   any applicable theory of law.

      A motion to suppress is, in effect, a specialized objection to the

admissibility of evidence. Porath v. State, 148 S.W.3d 402, 413 (Tex.

App.—Houston [14th Dist.] 2004, no pet.). Like all evidentiary rulings a

trial court’s ruling on a motion to suppress is reviewed for an abuse of

discretion. Martinez v. State, 348 S.W.3d 919, 922 (Tex. Crim. App. 2011).

Reversal is appropriate only if the trial court’s ruling is outside the zone

of reasonable disagreement. Ibid.

          A trial court’s ruling on a motion to suppress must be upheld if it

is reasonably supported by the record, and if it is correct under any legal

theory applicable to the case. State v. Steelman, 93 S.W.3d 102, 107 (Tex.

Crim. App. 2002).


                B. On review, a magistrate’s probable                 cause
                   determination is entitled to deference.

          In order to issue an arrest warrant, a magistrate must be

presented with an affidavit containing sufficient facts to support an

independent determination that probable cause exists to believe that

the accused has committed a crime. Valadez v. State, ___ S.W.3d ___, 04-

                                       10
14-00626-CR, 2015 WL 5439087, at *3 (Tex. App.—San Antonio Sept.

16, 2015, pet. filed). On appeal, the relevant inquiry is not whether

probable cause existed, but, rather, whether there was a substantial

basis to determine that probable cause existed. State v. Duarte, 389

S.W.3d 349, 354 (Tex. Crim. App. 2012).

      The standard of “probable cause” is the same degree of proof in

the case of both search and arrest warrants: considering the totality of

the circumstances, is there a “fair probability” that the accused

committed the offense (for an arrest warrant) or that contraband or

evidence of a crime will be found at the specified location (search

warrant). Ware v. State, 724 S.W.2d 38, 40 (Tex. Crim. App. 1986). An

affidavit for an arrest warrant need not establish that, more likely than

not, the accused committed the offense; rather, it only must show a

“substantial chance” that he did. See Flores v. State, 319 S.W.3d 697, 702

(Tex. Crim. App. 2010).


            C. If a statement is taken from a defendant arrested on
               an invalid warrant, the statement is still admissible if
               the statement is sufficiently attenuated

      The legality of arrest warrants is typically litigated in a context

exactly like this one: A suspect is arrested on a warrant, the suspect


                                   11
makes a custodial statement after the arrest, and then, at trial, the

defense claims that the statement should be excluded because it was

obtained in violation of the law. While there is a certain logic and

attractiveness to this argument, whether such a defendant’s statement

was obtained “in violation” of the law is not, when analyzed, as

straightforward as situations where evidence obtained from an illegal

search are declared to have been obtained “in violation” of the law.

Through what has become known as the attenuation doctrine, courts

have recognized that even if a suspect’s original arrest was illegal, a

sufficient amount of time and intervening events between the arrest and

the custodial statement could produce a conclusion that the statement

was not obtained as a result of the illegal arrest. See e.g., Monge v. State,

315 S.W.3d 35, 40 (Tex. Crim. App. 2010). This is one reason why there

are so few reported cases that discuss probable cause in the context of

an arrest warrant.

      An attenuation analysis looks at four factors: 1) whether Miranda

warnings were given; 2) the temporal proximity of the arrest to the

confession; 3) the presence of intervening circumstances; and 4) the

purpose and flagrancy of the official misconduct. Ibid. (quoting Monge v.

State, 276 S.W.3d 180, 184-85 (Tex. App.—Houston [14th Dist]. 2009),
                                     12
aff’d, 315 S.W.3d 35 (Tex. Crim. App. 2010)). No single factor in this

analysis is decisive; rather, reviewing courts consider the effect of the

factors as a whole. Monge, 315 S.W.3d at 40. Generally, if a defendant has

been read his Miranda rights, if a few hours passed between the arrest

and statement, if there was an independent intervening circumstance

that caused the defendant to give a statement (like a co-defendant’s

confession), and if the “official misconduct” was unintentional or minor,

the defendant’s statement will be considered to be sufficiently

attenuated from the illegal arrest so as to allow its admission into

evidence. See id. at 40-42.


   III.   Argument

            A. Though it would have been better had Cisneros
               included additional information in the affidavit, the
               information in the affidavit was enough to give the
               magistrate a substantial basis for determining that
               probable cause existed.

      In his brief, the appellant cogently points out that the affidavit

does not explicitly state that he killed or agreed to kill Velazquez.

(Appellant’s Brief at 11-12). The State agrees that the affidavit would

have been better had it included the fact that Figueredo told Cisneros

that the appellant had participated in the killing, but the sufficiency of


                                   13
an affidavit is determined by looking at the information it contains, not

the information that is missing.

      Giving deference to the magistrate’s implicit determinations that

Cisneros and Figueredo were credible, the affidavit establishes that

   1. Figueredo ran a drug organization;

   2. Figueredo knew that Siros was in federal custody, and that Siros
      believed Velazquez had given authorities the information that led
      to his arrest;

   3. In early-to-mid November, Siros had asked Figueredo for $6000 so
      that Siros could pay someone to kill Velazquez, and Figueredo
      gave him the money;

   4. Siros actively sought out people to kill Velazquez, first asking
      someone named “Washington” to do it, and then, after Washington
      declined, asking “Ju”;

   5. The appellant is Ju;

   6. Siros had the appellant’s contact information;

   7. Velazquez was killed on November 19 by a single shot to the chest;

   8. Velazquez actually was an informant who gave the police
      information on a drug organization run by Figueredo;

      While certainly not enough to support a conviction, this

information provided a substantial basis for concluding that the

appellant had some level of party responsibility for Velazquez’s murder.

In claiming the contrary in his brief, the appellant asks his reader to kill


                                    14
Donald Trump for $6,000, and then asks whether the mere fact of that

request would be sufficient to support an arrest warrant for his reader.

(Appellant’s Brief at 12). The State believes the deficiencies in the

appellant’s cutesy example help illustrate how much information

Cisneros’s affidavit contained. In order for the appellant’s example to be

analogous, his brief would have had to advised also that: 1) Donald

Trump was dead; 2) the death was a murder; 3) the appellant was

legitimately interested in paying for Trump’s murder, rather than merely

using a hypothetical to express distaste; 4) the appellant had borrowed

$6,000 explicitly for the purpose of facilitating Trump’s; 5) the appellant

was so interested in Trump’s murder that even after one individual

refused to do it he contacted someone else; 6) the appellant had his

reader’s contact information in his cell phone; and 7) Trump’s murder

occurred in the same general time frame as when the appellant

contacted his reader about the murder.

      The emphasis in reviewing an arrest warrant on appeal is not

whether the facts in the affidavit established that the suspect was guilty,

but whether they establish a “fair probability” or a “substantial basis”

for believing that the suspect had some criminal responsibility for the

alleged offense. The State believes the affidavit in this case satisfied that
                                     15
test, and thus the trial court did not abuse its discretion in denying the

appellant’s motion to suppress.


            B. Even if the affidavit did not establish probable cause,
               the    appellant’s     confession    was    sufficiently
               attenuated from any violation of the law as to be
               admissible.

      While the issue of probable cause is something of a close call in

this case, what is not close is the attenuation analysis. Looking at the

four attenuation factors, the appellant’s statement was admissible.


               1. Miranda Warnings

      The appellant was read his Miranda warnings at least twice, once

when he was taken to the police station immediately after his arrest, and

again the next morning prior to making his recorded statement. (5 RR

12-13; State’s Ex. 47). Though this factor is not determinative, it does

weigh in favor of admissibility. Maixner v. State, 753 S.W.2d 151, 156

(Tex. Crim. App. 1988) (where defendant was advised of rights “several

times,” this factor was “important factor” supporting conclusion that

statement was obtained as a result of illegal arrest).




                                    16
               2. Temporal Proximity

      Something like 12 hours passed between when the appellant was

first brought to the police station and when he made his confession.

Courts recognize that temporal proximity is a somewhat ambiguous

factor in the attenuation analysis: If the time between an illegal arrest

and confession is very short, that supports a conclusion that the

confession was the result of the illegal arrest; however, if a detention

drags on for a very long period of time, such as several days, that might

also support an inference that the confession was the result of the illegal

detention. See Bell v. State, 724 S.W.2d 780, 789 n.4 (Tex. Crim. App.

1986) (collecting cases holding that intervals of one and two hours

hours and “two or three days” weighed in favor of inadmissibility, but

delays of three, five, twenty-four, twenty-nine, and forty-eight hours

weighed in favor of admissibility).

      The State believes the temporal proximity in this case weighs in

favor of admissibility, though this is the weakest of the four factors. The

appellant was under arrest for long enough to clear his mind of the

arrest itself, but not so long as to constitute the sort of lengthy illegal

detention that might prompt a false confession. He was arrested,

allowed to sleep through the night while police tried to prepare him for

                                      17
a polygraph examination, and then he gave his statement early the next

morning. 1


                 3. Intervening Circumstances

       Prior to the appellant’s statement, Cisneros showed the appellant

pictures of several people connected to this murder. (State’s Ex. 47).

Courts have held that if an illegally-arrested defendant confesses after

being confronted with “significant evidence” of his guilt, that breaks the

chain of causation from the illegal arrest and weighs in favor of

admissibility. Monge, 315 S.W.3d at 41. The State would not characterize

the information with which Cisneros confronted the appellant as

“significant,” but neither was it non-existent.


                 4. Purpose and Flagrancy of Official Misconduct

       The State believes that in this case, the fourth factor is far and

away the most important. The “misconduct” in this case was so minor as

to bring into question whether that is even the appropriate word. Had

the prosecutor who helped Cisneros draft his affidavit simply included

1 The appellant refers to the delay in setting up a polygraph as police “drag[ging]
their feet.” (Appellant’s Brief at 13). If the appellant is accusing the police of bad
faith, that has no basis in the record. Considering that a polygraph examination
requires special equipment, a trained polygrapher, and preparations in order to
prepare questions, the State suggests that, as police had no prior notice that the
appellant wished to take a polygraph, the inability to give a spur-of-the-moment
polygraph exam at 10:00 pm was understandable.
                                         18
the fact that Figueredo had told Cisneros that the appellant had followed

through in killing Velazquez, the affidavit would have, unquestionably,

been sufficient. Thus any “misconduct” in this case was not in making an

arrest unsupported by probable cause, it was in failing to include an

additional piece of information in an affidavit.2 See Miller v. State, 736

S.W.2d 643, 650 (Tex. Crim. App. 1987) (where police arrested suspect

based on facially valid arrest warrant, but affidavit supporting warrant

was later found to lack probable cause, arresting officers’ actions

“cannot be classified as misconduct,” and complained-of evidence was

attenuated from any illegality); compare Farmah v. State, 883 S.W.2d

674, 679 (Tex. Crim. App. 1994) (where police make arrest without

probable cause, misconduct weighs “strongly” in favor of excluding

statement obtained after arrest).


                 5. Weighing the Factors

       The first and second factors weigh in favor of finding attenuation,

the third factor is somewhat ambiguous or perhaps weights against

2 In his brief, on the page before he accuses the police of “drag[ging] their feet” in
taking the appellant’s statement, the appellant accuses the police of “simply act[ing]
too quickly here” by procuring the warrant before they had probable cause.
(Appellant’s Brief at 12). However, Cisneros’s testimony at the motion-to-suppress
hearing was that he obtained the full story from Figueredo, including the fact that
the appellant had followed through on the murder, in a single debriefing prior to
getting the warrant. (See 5 RR 34-35).
                                         19
attenuation, and the fourth factor weighs strongly in favor of

attenuation. The most on-point case for this combination of factors is

Castelan v. State, 54 S.W.3d 469 (Tex. App.—Corpus Christi 2001, no

pet.). In that case, police arrested Castelan based on a warrant. Though

police had probable cause to support a warrant, the warrant that issued

was invalid because of a typographical error. After his arrest in the late

afternoon, Castelan remained in custody overnight. The next morning

police advised Castelan of the Miranda warnings, after which he gave a

statement to police. There were no intervening circumstances. On

appeal, because the degree of “misconduct” in that case was so minor,

the strength of the first two attenuation factors was enough to attenuate

the illegal arrest, thus the statement was admissible. Castelan, 54 S.W.3d

at 478-79.

      A similar analysis in this case would produce a similar result:

Because 1) the appellant was read the Miranda warnings, 2) roughly

twelve hours passed between the arrest and statement, and 3) any

police “misconduct” consisted only of leaving a detail out of an affidavit,

any illegality in this case is sufficiently attenuated from the appellant’s

statement as to render the statement admissible. Accordingly, the trial

court did not abuse its discretion in denying the motion to suppress.
                                    20
                              Conclusion

      The State respectfully submits that all things are regular and the

judgment of the trial court should be affirmed.



                                              DEVON ANDERSON
                                              District Attorney
                                              Harris County, Texas


                                              /s/ C.A. Morgan
                                              CLINTON A. MORGAN
                                              Assistant District Attorney
                                              Harris County, Texas
                                              1201 Franklin, Suite 600
                                              Houston, Texas 77002
                                              713.755.5826
                                              Texas Bar No. 24071454




                                   21
                 Certificate of Compliance and Service

      I certify that, according to Microsoft Word’s word counting

function, the portion of this brief for which Rule of Appellate Procedure

9.4(i)(1) requires a word count contains 4,055 words.

      I also certify that I have requested that efile.txcourts.gov

electronically serve a copy of this brief to:

      Franklin Bynum
      fgb@lawfgb.com


                                                /s/ C.A. Morgan
                                                CLINTON A. MORGAN
                                                Assistant District Attorney
                                                Harris County, Texas
                                                1201 Franklin, Suite 600
                                                Houston, Texas 77002-1923
                                                (713) 274-5826
                                                Texas Bar No. 24071454


Date: October 30, 2015




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