                                                                        PD-1376-15
                                                       COURT OF CRIMINAL APPEALS
                                                                       AUSTIN, TEXAS
                                                     Transmitted 12/23/2015 5:59:45 PM
                                                      Accepted 12/28/2015 12:51:32 PM
                                                                        ABEL ACOSTA
                     NO. PD-1376-15                                             CLERK




       In the Court of Criminal Appeals of Texas


                       Roel Alvarez Lopez,
                            Appellant

                               v.

                         State of Texas,
                            Appellee


              ON PETITION FOR DISCRETIONARY REVIEW
                  FROM CAUSE NO. 13-13-00307-CR
               IN THE THIRTEENTH COURT OF APPEALS,
                REVIEWING CAUSE NO. CR-981-12-D
     206TH JUDICIAL DISTRICT COURT OF HIDALGO COUNTY, TEXAS
                HON. ROSE GUERRA REYNA PRESIDING


      APPELLANT ROEL ALVAREZ LOPEZ’S PETITION FOR
                DISCRETIONARY REVIEW


ORAL ARGUMENT CONDITIONALLY Brandy Wingate Voss
REQUESTED                   State Bar No. 24037046
                            SMITH LAW GROUP LLLP
                            820 E. Hackberry Ave.
                            McAllen, TX 78501
                            (956) 683-6330
                            (956) 225-0406 (fax)
                            Counsel for Appellant Roel Alvarez
    December 28, 2015
                            Lopez
                     IDENTITY OF PARTIES AND COUNSEL
Appellant                          Counsel for Appellant

Roel Alvarez Lopez                 Brandy Wingate Voss
                                   Smith Law Group, P.C.
                                   820 E. Hackberry Ave.
                                   McAllen, Texas 78501

                                   Trial Counsel

                                   Hon. Manuel Luis Singleterry, now
                                   Judge of the 93rd District Court of
                                   Hidalgo County, Texas


Appellee                           Counsel for Appellee

State of Texas                     Glen Devino
                                   Hidalgo County Criminal District
                                   Attorney’s Office
                                   Appeals Section
                                   100 N. Closner, 3rd Floor
                                   Edinburg, Texas 78539
                                   glenn.devino@da.co.hidalgo.tx.us



                                   Trial Counsel

                                   Joaquin Zamora
                                   State Bar No. 24003229
                                   Victoria Muniz
                                   State Bar No. 24074772
                                   100 N. Closner, 3d Floor
                                   Edinburg, Texas 78539



                                    i
                                        TABLE OF CONTENTS
IDENTITY OF PARTIES AND COUNSEL ................................................................ i

TABLE OF CONTENTS ............................................................................................. ii

INDEX OF AUTHORITIES ....................................................................................... iii

STATEMENT REGARDING ORAL ARGUMENT.................................................. v

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

STATEMENT OF PROCEDURAL HISTORY ........................................................ vii

GROUNDS FOR REVIEW ....................................................................................... vii

ARGUMENT................................................................................................................ 1

I.              Appellant raised coercion with respect to the initial interview .................. 2

II.             This Court should protect an arrestee’s right to stop an
                interrogation, by invoking the right to counsel, and exclude
                the fruits of a statement taken in violation of that right. ........................... 5

CONCLUSION AND PRAYER................................................................................ 12

CERTIFICATE OF COMPLIANCE WITH RULE 9.4(e) ....................................... 13

CERTIFICATE OF SERVICE ................................................................................... 14

APPENDIX ................................................................................................................. 15




                                                             ii
                                    INDEX OF AUTHORITIES
Cases

Arizona v. Roberson,
  486 U.S. 675 (1988) .................................................................................................. 8

Ashcraft v. State,
  900 S.W.2d 817 (Tex. App.—Corpus Christi 1995, writ ref’d) ................................ 4

Baker v. State,
  956 S.W.2d 19 (Tex. Crim. App. 1997) .............................................................6, 10

Commonwealth v. Martin,
  827 N.E.2d 198 (Mass. 2005) ................................................................................... 6

Contreras v. State,
  312 S.W.3d 566 (Tex. Crim. App. 2010). ........................................................3, 5, 6

Edwards v. Arizona,
  451 U.S. 477 (1981) .............................................................................................. v, 8

Ex parte Lewis,
  219 S.W.3d 335 (Tex. Crim. App. 2007) ............................................................... 11

In re H.V.,
   179 S.W.3d 746 (Tex. App. 2005), aff'd in part, rev'd in part,
   252 S.W.3d 319 (Tex. 2008). .................................................................................. 10

In re H.V.,
   252 S.W.3d 319 (Tex. 2008) ..................................................................................... 6

Lopez v. State,
  No. 13-13-00307-CR, 2015 WL 5602278
  (Tex. App.—Corpus Christi June 25, 2015)
  (mem. op.; not designated for publication) ............................................... v, vi, vii, 3



                                                           iii
Lynumn v. Illinois,
  372 U.S. 528 (1963) .................................................................................................. 4

Maryland v. Shatzer,
 559 U.S. 98 (2010) ........................................................................................... 10, 11

McNeil v. Wisconsin,
 501 U.S. 171 (1991) .................................................................................................. 8

Olson v. State,
  484 S.W.2d 756 (Tex. Crim. App. 1969) ................................................................. 6

State v. Knapp,
  700 N.W.2d 899 (Wis. 2005) ................................................................................... 6

State v. Farris,
   849 N.E.2d 985 (Ohio 2006).................................................................................... 6

State v. Peterson,
  923 A.2d 585 (Vt. 2007) ........................................................................................... 6

United States v. Gilkeson,
 431 F.Supp.2d 270 (N.D.N.Y. 2006) ............................................................... passim

United States v. Patane,
 542 U.S. 630 (2004) ..............................................................................................5, 9


Rules

TEX. R. APP. P. 47.1 ....................................................................................................... 4




                                                             iv
TO THE HONORABLE COURT OF CRIMINAL APPEALS OF TEXAS:

      Appellant, Roel Alvarez Lopez, respectfully requests that this Court grant his

petition for discretionary review and respectfully shows:

            STATEMENT REGARDING ORAL ARGUMENT
      Oral argument is not necessary if this Court determines that, as required by

Texas Rule of Appellate Procedure 47.1, the lower court failed to address all

arguments made by Appellant and remands to the court of appeals for further

consideration. However, if the Court decides the issue in the first instance,

Appellant believes that oral argument would be beneficial, given the size of the

record on appeal. Appellant alternatively asks the Court to extend the exclusionary

rule in Texas Code of Criminal Procedure article 38.23 to fruits of a statement taken

in violation of Edwards v. Arizona, 451 U.S. 477, 485–86 (1981). To the extent the

Court agrees and desires oral argument, Appellant believes it would be beneficial.

                         STATEMENT OF THE CASE
      The Thirteenth Court of Appeals issued its decision on June 25, 2015,

affirming Appellant’s conviction for murder and sentence of 37 years’

imprisonment. Lopez v. State, No. 13-13-00307-CR, 2015 WL 5602278 (Tex. App.—

Corpus Christi June 25, 2015) (mem. op.; not designated for publication) (App’x).

The court’s opinion reflects that police interrogated Appellant over the course of


                                          v
three days after his arrest. Id. at *1-2. Because the police did not comply with the

statutory requirements for taking a statement, the State did not offer the actual

statements given by Appellant—yet they nevertheless used evidence that was the

“fruit” of those statements. Id. at *2-3.

       The court of appeals held that absent coercion, the fruits of a statement taken

improperly after an arrestee has invoked his right to counsel are not subject to

exclusion under Texas Code of Criminal Procedure 38.23. Id. at *4-5. The court of

appeals then held that the only relevant interrogation—which led the police to

witnesses and physical evidence used to convict Appellant—occurred on the first day

of his arrest, and that Appellant did not assert any police coercion with respect to

that particular interrogation. Id. at *5-6.

       First and foremost, Appellant asks this Court to find that the court of appeals

failed to address all of Appellant’s arguments—specifically, that the statements he

gave on the first day of his interrogation were coerced. Appellant did, in fact, assert

coercion during that first interrogation, but the court of appeals refused to address

those arguments, even after the omission was pointed out on rehearing.

       Nevertheless, Appellant requests that this Court hold that an Edwards

violation implicates article 38.23, and coercion is not required to exclude from the

trial evidence that is indisputably the “fruit of the poisonous tree.”


                                              vi
               STATEMENT OF PROCEDURAL HISTORY
Date and citation to Court of Appeals   Lopez v. State, No. 13-13-00307-CR,
Opinion:                                2015 WL 5602278 (Tex. App.—Corpus
                                        Christi June 25, 2015) (mem. op.; not
                                        designated for publication).

Motion for Rehearing and                A motion for rehearing was filed on
Reconsideration En Banc:                September 9, 2015.



Court of Appeals’ Disposition:          The Thirteenth Court of Appeals
                                        denied the motion for rehearing on
                                        September 24, 2015.

                            GROUNDS FOR REVIEW
       1.     Did the court of appeals improprly fail to address all of Lopez’s

arguments regarding coercive police tactics during the first interview?

       2.     Should the Court determine that interrogation techniques that violate

Edwards v. Arizona, as opposed to a mere failure to provide Miranda warnings, invoke

the Texas exclusionary rule in Texas Code of Criminal Procedure Article 38.23 with

respect to fruits of the statement?

       3.     Alternatively, should the Court construe Article I, section 10 as

providing greater protection than the Fifth Amendment when an arrestee invokes

his right to counsel, but police re-initiate questioning? (unbriefed)




                                           vii
                                       ARGUMENT
       This case involves the egregious violation of Lopez’s rights by the Pharr police

department. Using the tainted evidence obtained as a result of Lopez’s statements to

police—after he invoked his right to counsel—the State obtained a conviction for

murder. Lopez is now serving a 37-year prison term. CR224, 229.1

       The court of appeals affirmed by erroneously deciding that Appellant did not

assert the police tactics used during the first interview were coercive. Appellant,

however, briefed that argument below. This Court should afford Appellant the

opportunity to have his arguments decided.

       Even so, this case is unsurprisingly similar to other cases the courts have

recently been called upon to address. Unfortunately, a pattern has emerged, and it’s

time for this Court to step in. This Court should hold that the invocation of the

right to counsel during an interrogation means the interrogation has to stop, and

should deter future violations through the exclusion of evidence obtained thereafter

if the police do not honor the request for counsel.




       1
         The clerk’s record will be cited as “CR[page]” and “[volume]Supp.CR[page],” respectively.
The reporter’s record will be cited as “[vol.]RR[page]” and “Supp.RR[page],” respectively. The
exhibit volumes will be cited as follows: “[vol]RRSX[exhibit number]” for the State’s exhibits, and
“[vol]RRDX[exhibit number]” for the Defense’s exhibits.

                                                1
I.     Appellant raised coercion with respect to the initial interview
       In his amended brief in the court of appeals, Appellant meticulously

described the events during the interrogation. See Amended Br. at 1-10. Appellant

expressly complained about coercive police action during both the initial interviews,

stating:

               During the interrogation, Lopez spoke about his whereabouts on
       that Sunday. He informed the officers that he had been at a barbecue
       at a friend’s house and identified some of the people who had seen him
       there: Jennifer Gonzales, Danny Anguiano, and Joel Gonzalez. 16 RR
       44:19–25, 51:4–11; 149:16–23. He mentioned that he had borrowed a
       pair of boots from Joel. 16 RR 77:22–78:19. He also stated that he had
       been wearing a red shirt and jeans. 16 RR 77:20–21. Though the police
       denied it, according to Lopez, the police threatened to arrest his family
       members, including his brother, and have his brother’s children placed
       into foster care. 16 RR 164:22–165:10. At one point while the officers
       were not in the room, Lopez approached the office door to ask a
       sergeant where his lawyer was. 16 RR 166:17–167:8. Rather than
       respond, the sergeant covered the window in the door with a piece of
       paper. Id.

Id. at 2-3.

       The appellate record shows that Appellant testified he was threatened during

his “interrogations” on the first day—meaning both the initial and the subsequent

recorded interrogation. 16RR164-65. While he testified that Investigator Chapa did

threaten to arrest his parents for making false reports, which occurred during the

recorded interview, he also testified that was not the only threat made. 16RR180.

He testified that Investigator Chapa threatened to take his brother’s kids away. Id.;

                                          2
16RR165. Appellant then expressly claimed that those threats were coercive.

16RR181.

       The court of appeals, in a footnote, stated that the evidence of coercion was

controverted. Lopez, 2015 WL 5602278, at *5 n.4. Investigator Chapa initially

denied making any threats or coercive statements on the third day, and later

reaffirmed that testimony. 9RR15, 90-91; 16RR58-59; see also 2Supp.RR128. But

Investigator Chapa never expressly denied making any threatening statements during

the initial interview.2

       And, Investigator Chapa acknowledged that, during the third day of

interrogation, when asked whether anything had happened against Appellant’s will

to obtain a confession, Appellant complained that Chapa had threatened to arrest

his mom, dad, and brother, and had the authority to do so. 16RR59. The State did

not bother to explain this statement or provide testimony that the threat to which

Appellant referred did not happen during the first interview.

       Threats made against family members of an accused may result in the

accused’s confession being deemed involuntary. Contreras v. State, 312 S.W.3d 566,

576 (Tex. Crim. App. 2010). While courts have held that it is normal to inform an


2
         In fact, Investigator Chapa testified that Appellant was placed in handcuffs during that
initial interview because he became aggressive and disagreeing the police were questioning him
about a homicide. 16 RR 48.

                                               3
accused that occupants of the accused’s house might be held accountable for stolen

property found on the premises, that holding does not address a threat to take away

an accused’s brother’s children. See Ashcraft v. State, 900 S.W.2d 817, 823 (Tex.

App.—Corpus Christi 1995, writ ref’d). Threats to take away an accused’s children

have been held to be coercive, and that rule would certainly apply to a threat to take

away an accused’s nephews and nieces from their parents. See Lynumn v. Illinois, 372

U.S. 528, 534 (1963). This is particularly true when combined with the additional

threat to Appellant’s parents. And the record reveals no basis for any probable cause

to make any report to CPS against Appellant’s brother, as argued by Appellant in his

opening brief. See Amended Br. at 24.

      While it is true that Appellant raised additional coercive circumstances during

the remaining interviews, Appellant’s brief did, in fact, challenge and raise coercive

threats made during the initial interview. See Amended Br. at 2-3. The testimony

supports this allegation as well.

      A court of appeals has an obligation to issue an opinion that decides all issues

presented. TEX. R. APP. P. 47.1 (“The court of appeals must hand down a written

opinion that is as brief as practicable but that addresses every issue raised and

necessary to final disposition of the appeal.”). For all the foregoing reasons,

Appellant urges the Court to either address Appellant’s arguments here, or remand


                                          4
to the court of appeals for further consideration, and reverse the judgment of the

trial court.

II.    This Court should protect an arrestee’s right to stop an
       interrogation, by invoking the right to counsel, and exclude the
       fruits of a statement taken in violation of that right.
       Police routinely fail to scrupulously honor an arrestee’s invocation of the right

to counsel and obtain information that they can use to find other evidence against

the arrestee. While they know the statement itself cannot be used, it really doesn’t

matter if the fruits of the statement can be used. Thus, police officers can violate a

person’s right to counsel and to terminate an interrogation with impunity, and with

no consequences. This Court should correct that situation.

       Under United States constitutional precedent, where there has been a failure

to provide Miranda warnings, the fruits of the statement can be used, and the State

can obtain even though Miranda has been violated. United States v. Patane, 542 U.S.

630 (2004); Contreras, 312 S.W.3d at 582. This Court, and the Texas Supreme

Court as a result, have held that the actual invocation of the right to counsel does

not require application of the exclusionary rule, in part based on the rationale

ultimately adopted by the Supreme Court in United States v. Pantane. Baker v. State,




                                           5
956 S.W.2d 19, 24 (Tex. Crim. App. 1997); see also Contreras, 312 S.W.3d at 582; In

re H.V., 252 S.W.3d 319, 327 (Tex. 2008).3

       Courts have distinguished Pantane under circumstances similar to this case,

which this Court refused to do in Baker. This Court should re-examine Baker and

distinguish Pantane, to give the Fifth Amendment right to counsel the force it and

citizens deserve. The exclusionary rule should apply where a party invokes his or her

right to counsel during a custodial interrogation, and that request is not

scrupulously honored.

       For example, in United States v. Gilkeson, the district court for the Northern

District of New York, in a lenghty opinion, distinguished Miranda/Edwards

violations from those addressed in Pantane, and applied the federal exclusionary

rule. 431 F.Supp.2d 270 (N.D.N.Y. 2006). The Gilkeson court summarized the

foundations for Miranda and the exclusionary rule, and noted that if Miranda’s


3
         However, even if the “fruit of the poisonous tree” exclusionary rule does not apply to
prophylactic Miranda violations, that does not preclude this Court from holding that Article I,
section 10 of Texas Constitution and article 38.23 do require exclusion of the fruits of an
improperly obtained statement. Olson v. State, 484 S.W.2d 756, 761 (Tex. Crim. App. 1969)
(“Nevertheless, as to the true scope of the Texas Constitution, we must ultimately follow our own
lights.”). Appellant asks the Court to do so. Under similar language, other states have applied an
exclusionary rule, holding that a violation of the self-incrimination clause of their constitutions
required exclusion of the “fruit of the poisonous tree.” State v. Peterson, 923 A.2d 585, 593 (Vt.
2007). In doing so, the Vermont Supreme Court noted that several other states had rejected
Patane in construing their state constitutions. See Commonwealth v. Martin, 827 N.E.2d 198, 203
(Mass. 2005); State v. Knapp, 700 N.W.2d 899, 917-20 (Wis. 2005); State v. Farris, 849 N.E.2d 985,
996 (Ohio 2006). Due to the word count limits in this brief, Appellant requests the opportunity to
brief this issue fully in briefing on the merits.

                                                6
rationales have not been implicated, the exclusionary rule has not be applied. Id. at

285. It summarized Pantane’s refusal to apply the exclusionary rule in this construct

as follows:

              The Court recently addressed the issue of the application of the
       fruit doctrine in another factual context in United States v. Patane. In
       Patane, the defendant was arrested for harassing his ex-girlfriend, and a
       restraining order was issued. While the matter was under investigation
       it came to the attention of the local police department that the
       defendant, a convicted felon, illegally possessed a Glock pistol. Two
       officers went to Patane's residence to question him about violating the
       restraining order and the discussion culminated in an arrest. The
       officer “attempted to advise [Patane] of his Miranda rights but got no
       further than the right to remain silent. At that point, [Patane]
       interrupted, asserting that he knew his rights, and neither officer
       attempted to complete the warning.” When asked about the Glock,
       Patane was reluctant to answer but eventually told an officer that the
       pistol was in his bedroom. The gun was retrieved and the government
       offered it at trial on charges for possession of a firearm by a convicted
       felon.

               The issue before the Court was whether the gun should have
       been suppressed as the fruit of an unwarned statement. The Court
       determined that the exclusionary rule did not apply to bar the
       introduction of the gun. The Patane plurality began by reaffirming the
       close-fit requirement between the Self–Incrimination Clause and any
       application of a suppression rule proposed to protect it and determined
       that here there was not a close fit. But the Court focused its analysis on
       the inapplicability of the deterrence rationale. “[U]nlike unreasonable
       searches under the Fourth Amendment or actual violations of the Due
       Process Clause or the Self–Incrimination Clause, there is, with respect
       to mere failures to warn, nothing to deter. There is therefore no reason
       to apply the ‘fruit of the poisonous tree’ doctrine of [Wong Sun].”

              ...


                                           7
      Beyond this ground for finding that the deterrence rationale did not
      apply, the facts of the Patane case do not implicate any of the
      traditional concerns of custodial interrogations. In fact, in Patane, it
      was the arrestee who “caused” the Miranda quandary by interrupting
      the reading of his Miranda rights and stating that he knew them. There
      was no indication of police misconduct. Miranda's application to assure
      the trustworthiness of evidence was not implicated either as his
      statements were indisputably voluntary. Again, since the facts did not
      suggest coercion or implicate the trustworthiness of the evidence the
      exclusionary rule was not applied to bar the introduction of Miranda-
      offending evidence.

Id. at 286-88 (citations omitted).

      Turning to violations of the right to counsel, the Gilkeson court noted that the

“purpose of the Miranda–Edward’s guarantee ... is to protect a quite different interest:

the suspect’s ‘desire to deal with the police only through counsel.’” Id. at 289-90

(quoting McNeil v. Wisconsin, 501 U.S. 171, 178 (1991); Edwards, 451 U.S. at 484).

The court held that the right to counsel is different than the other Miranda rights,

and has been augmented—in Edwards v. Arizona—and fortified in Arizona v. Roberson.

Id. at 289-90 (citing Edwards, 451 U.S. 477; Roberson, 486 U.S. 675, 681 (1988)).

      The Gilkeson court noted that in Patane, the Supreme Court did not address a

Miranda-Edwards violation, and there was not even a violation of Miranda that was

found in Patane. Id. at 292. In fact, the Patane Court stated that “[P]olice do not

violate the Constitution (or even the Miranda rule, for that matter) by mere failures

to warn. For this reason, the exclusionary rule articulated in cases such as Wong Sun


                                           8
does not apply.” Id. (quoting Patane, 542 U.S. at 637). And while a failure to heed

Miranda’s requirement of a warning did not implicate a need for deterrence—“[t]here

is, with respect to mere failures to warn, nothing to deter”—a Miranda-Edwards

violation is different. Id. Miranda not only contained prophylactic warning

requirements, it contained an absolute prohibition on continuing an interrogation

once the Miranda right to counsel had been invoked. Id.

      And the court found the difference dispositive:

             In this case, the Miranda–Edwards violation is clear and the
      Court's prohibition was ignored. While there may be some play in the
      words of the Miranda warning or the timing of the warning, it could
      not be clearer that police must cease questioning once an arrestee
      invokes the right to counsel. If this aspect of the Miranda rule may be
      disregarded without consequence then the rule is of no avail.
      Defendant Gilkeson asked for an attorney on three occasions and his
      requests were ignored. Where the Court has fortified its procedural
      safeguards in the Miranda context, a corresponding scope of the
      exclusionary rule is warranted.

             Furthermore, the apparent attempt to bypass the Miranda
      requirement in this case is akin the question-first conduct in Seibert, in
      which the plurality decision focused on the deterrence rationale. Of
      course, the need for deterrence is not implicated by good-faith police
      conduct. Accordingly, the Court has only extended Miranda's
      protection in Seibert where the police had deliberately sought to
      contravene its purposes. The police in this case sought to contravene
      Miranda’s purposes. The police officers ignored Gilkeson's repeated
      requests in a calculated manner in an attempt to confuse the defendant
      and/or to undermine his understanding of the effect of his assertion of
      his right to counsel.



                                          9
             As the dissent in Patane explained, the issue is not whether the
      nontestimonial nature of the evidence is directly tied to the Self–
      Incrimination Clause, but whether by admitting the Miranda-offending
      evidence an incentive is created for police misconduct. As a practical
      matter, once an arrestee has invoked the right to counsel, the police
      know that the interview is the last opportunity they will have to
      interrogate the arrestee without counsel. There is no incentive to cease
      questioning if the arrestee can be induced to make incriminating
      statements or to reveal information which leads to physical evidence
      that can be admitted in a subsequent criminal case. The fact that the
      statements themselves would not be admissible is not a sufficient
      remedy to protect the individual's right to be free from compelled self-
      incrimination.

Id. at 293-94; see also In re H.V., 179 S.W.3d 746, 764 (Tex. App. 2005), aff'd in part,

rev'd in part, 252 S.W.3d 319 (Tex. 2008).

      At the time this Court decided Baker, the Court did not have the benefit of

the later decisions interpreting Edwards, which focus on the inherently coercive

nature of a Miranda-Edwards violation. Compare Baker, 956 S.W.2d at 23 (“The

failure to scrupulously honor a suspect's invocation of his right to remain silent by

continuing questioning is not necessarily coercive.”), with Maryland v. Shatzer, 559

U.S. 98, 105 (2010). And, the Court did not have the benefit of Patane or the later

decision by the New York District Court in Gilkeson distinguishing Patane. Nor did

the Court have examples of the abuse that is occurring of the right to counsel in

Texas, as demonstrated by the facts in In re H.V., where a minor’s right to counsel

was violated. While Edwards has been called a prophylactic requirement, Maryland,


                                          10
559 U.S. at 105, for purposes of the exclusionary rule, it should be treated

differently where the arrestee has invoked his right to counsel and that request has

been ignored. The fact is that absent the deterrent provided by an exclusionary rule,

there is no incentive for police to honor requests for counsel. The “Fifth

Amendment” right to counsel, therefore, means nothing.

      While this Court must consider stare decisis when deciding whether to

overrule precedent, “[p]recedent can be overruled, however, if the reasons for doing

so are weighty enough.” Ex parte Lewis, 219 S.W.3d 335, 338 (Tex. Crim. App.

2007). “Some factors supporting the overruling of precedent are: (1) that the original

rule or decision was flawed from the outset, (2) that the rule’s application produces

inconsistent results, (3) that the rule conflicts with other precedent, especially when

the other precedent is newer and more soundly reasoned, (4) that the rule regularly

produces results that are unjust, that are unanticipated by the principle underlying

the rule, or that place unnecessary burdens on the system, and (5) that the reasons

that support the rule have been undercut with the passage of time.” Id.

      Here, Appellant believes that the rule announced in Baker creates results that

are unjust, conflicts with other newer precedent that is more soundly reasoned, and

the reasons that supported the decision have been undercut with the passage of




                                          11
time. For all these reasons, Appellant requests that the Court overrule Baker, adopt

the reasoning in Gilkeson, and distinguish Pantane.

                       CONCLUSION AND PRAYER
      This Court should grant review, request additional briefing, and render the

judgment that the court of appeals should have rendered. The Court should reverse

the judgment of the lower courts and remand for further proceedings. Alternatively,

the Court should remand to the court of appeals to consider the arguments

presented, but not addressed, below.


                                       Respectfully submitted,


                                       /s/ Brandy Wingate Voss
                                       Brandy Wingate Voss
                                       State Bar No. 24037046
                                       SMITH LAW GROUP LLLP
                                       820 E. Hackberry Ave.
                                       McAllen, TX 78501
                                       (956) 683-6330
                                       (956) 225-0406 (fax)
                                       brandy@appealsplus.com
                                       Counsel for Appellant




                                         12
        CERTIFICATE OF COMPLIANCE WITH RULE 9.4(e)
      This document complies with the typeface requirements of Tex. R. App. P.

9.4(e) because it has been prepared in a conventional typeface no smaller than 14-

point for text and 12-point for footnotes. This document also complies with the

word-count limitations of Tex. R. App. P. 9.4(i), because it contains 3,025 words,

excluding the parts exempted by Rule 9.4.


                                      /s/ Brandy Wingate Voss
                                      Brandy Wingate Voss




                                        13
                        CERTIFICATE OF SERVICE

      On December 23, 2015, in compliance with Texas Rule of Appellate

Procedure 9.5, I served a copy of this document upon all other parties to the trial

court’s judgment and the respondent by first-class United States mail, return receipt

requested, properly posted and deliverable as follows:

Glen Devino
Assistant District Attorney
Appeals Section
Office of Criminal District Attorney
Hidalgo County, Texas
100 N. Closner, Rm 303
Edinburg, Texas 78539
Fax: (956) 380-0407
glenn.devino@da.co.hidalgo.tx.us


Lisa C. McMinn
State Prosecuting Attorney
Office of State Prosecuting Attorney of Texas
P. O. Box 13046
Austin, Texas 78711-3046
Fax: (512) 463-5724

                                       /s/ Brandy Wingate Voss
                                       Brandy Wingate Voss




                                         14
APPENDIX




   15
Lopez v. State, Not Reported in S.W.3d (2015)


                                                                   Cecilia Escamilla found her brother, the decedent, dead at
                                                                   home on the evening of Sunday, December 4, 2011. The San
                  2015 WL 5602278
                                                                   Juan Police Department opened an investigation into his death
    Only the Westlaw citation is currently available.
                                                                   that night. The next day, an anonymous tipster gave the police
          SEE TX R RAP RULE 47.2 FOR                               the name of “Roli Lopez who lived in Alamo.” Lopez became
    DESIGNATION AND SIGNING OF OPINIONS.                           the focus of their investigation.

     DO NOT PUBLISH. TEX. R. APP. P. 47.2(B).                      On the morning of Wednesday, December 7, 2011, the
            Court of Appeals of Texas,                             police went to Lopez's home and informed him about their
            Corpus Christi-Edinburg.                               investigation. After a brief exchange, the police handcuffed
                                                                   and transported Lopez to the police station for further
             Roel Alvalrez Lopez, Appellant,
                                                                   questioning. According to Lopez and his mother, as the police
                            v.                                     escorted him away, he asked his mother to call his lawyer.
              The State of Texas, Appellee.                        The police officers denied hearing this request. Shortly after
                                                                   the police brought him into custody, Lopez's mother retained
             NUMBER 13–13–00307–CR |
                                                                   two attorneys to assist him.
             Delivered and filed June 25, 2015
                                                                   When Lopez arrived at the police station on Wednesday
On appeal from the 206th District Court of Hidalgo County,
                                                                   morning, officers questioned him concerning his whereabouts
Texas.
                                                                   on the previous Sunday. The initial interview was not
Attorneys and Law Firms                                            recorded. However, according to the police, Lopez signed
                                                                   a written waiver of his Miranda rights. Lopez did not
Ricardo P. Rodriguez, Glenn W. Devino, for the State of            recall signing this waiver and claimed that he requested an
Texas.                                                             attorney. According to the police, during this unrecorded
                                                                   interview, Lopez identified three individuals that could
Brandy Wingate Voss, for Roel Alvarez Lopez.
                                                                   account for his whereabouts on Sunday: Jennifer Gonzales,
Before Chief Justice Valdez and Justices Rodriguez and             Danny Anguiano, and Joel Gonzalez.
Longoria
                                                                   Approximately two hours into questioning, but still during
                                                                   Wednesday morning, the police obtained access to a video
                                                                   camera and began recording the interview. Lopez appeared
               MEMORANDUM OPINION
                                                                   in handcuffs. The police did not read Lopez his Miranda
Memorandum Opinion by Chief Justice Valdez                         rights at the start of the video. The police offered Lopez a
                                                                   bottle of water and gave him an opportunity to take a cigarette
 *1 A jury found appellant Roel Alvarez Lopez (“Lopez”)            break. The police also indicated that they could arrange to
guilty of the offense of murder, a first degree felony,            have Lopez's mother bring him some food if he was hungry,
and sentenced him to thirty-seven years' imprisonment in           but Lopez declined. Although Lopez had a splint on his
the Texas Department of Criminal Justice—Institutional             finger, he did not indicate the need for medical attention. The
Division. See Tex. Penal Code Ann. § 19.02 (West, Westlaw          interview continued for the remainder of the morning with
through 2015 3d R.S.). By two issues, Lopez contends that          several breaks in questioning. At no point during the recorded
(1) the trial court erred in failing to suppress evidence that     interview did Lopez request to speak to an attorney.
he claims constituted the fruit of statements that he made
during an allegedly illegal police interrogation, and (2) he was   Throughout the recorded interview, Lopez consistently
deprived of effective assistance of counsel. We affirm.            denied any involvement in the decedent's death; he again
                                                                   referenced Jennifer Gonzales, Danny Anguiano, and Joel
                                                                   Gonzalez; and he offered an alibi that consisted of him
                                                                   being at home during a certain time frame on the previous
                       I. Background
                                                                   Sunday. However, when Lopez's alibi did not match up with
                                                                   information that his family members provided concerning



                © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                            1
Lopez v. State, Not Reported in S.W.3d (2015)


his whereabouts on Sunday, the police began to suspect that            evidence was inadmissible under the fruit of the poisonous
Lopez was not telling the truth. The police then asked Lopez           tree doctrine due to the allegedly illegal police interrogation.
whether it would be appropriate to charge his family members
with filing a false report in light of the fact that the information   1      At the suppression hearing, Lopez clarified that his
they provided did not match up with his story. Despite what                   motion to suppress sought to exclude the following
the police believed to be inconsistencies in his alibi, Lopez                 evidence:
maintained his innocence throughout the interview.                                 What I'm asking the Court to suppress is the
                                                                                   statements made by Joel [Gonzalez], whose
 *2 Over the next two days, Lopez remained in custody.                             identity came through what we classify as illegal
The attorneys that Lopez's mother hired went to the police                         questioning of Mr. Lopez. So they learn of
station to visit with Lopez on Thursday and Friday, but the                        Joel [Gonzalez], his statements and any physical
authorities did not allow them access to Lopez. According                          evidence that was gathered as a result.
                                                                                   Daniel Anguiano, which I think the State agrees
to Lopez, during this time, the police put him in a cell with
                                                                                   that if Daniel Anguiano is inadmissible, then so are
hostile individuals, refused his requests to see his attorneys,
                                                                                   everybody else that was at that barbeque essentially
threatened to arrest his family, and did not feed him.
                                                                                   because they learned of those people through Daniel
                                                                                   Anguiano and they learned of Daniel Anguiano
By Friday afternoon, Lopez informed the police that he                             through Mr. Lopez.
wanted to confess. After Lopez indicated that he wanted to                         And Jennifer Gonzalez, who they also learned
confess, the police fed him a plate of barbeque. After finishing                   from Mr. Lopez. And then any subsequent physical
his food, Lopez confessed that he shot the decedent with a                         evidence that they gathered through them.
gun. Lopez's confession was recorded and reduced to writing.                       So it's just all evidence that stems from those
Thereafter, Lopez was charged with capital murder.                                 individuals.
                                                                       Midway through the suppression hearing, the State made
After Lopez confessed, the police contacted Jennifer                   an important announcement to the trial court; the State
Gonzales, Danny Anguiano, and Joel Gonzalez—the three                  announced that it did not intend to introduce any statement
individuals who Lopez identified during his initial interview.
                                                                       that Lopez gave to the police. 2 The State explained that
After contacting these individuals, the police obtained
                                                                       it elected not to introduce Lopez's statements out of a
additional incriminating evidence against Lopez, which, in
                                                                       concern that the police had not complied with certain statutory
relevant part, included the following: (1) their statements that
                                                                       requirements pursuant to Texas Code of Criminal Procedure
tended to connect Lopez to the crime; (2) the murder weapon,
                                                                       article 38.22. See TEX. CODE CRIM. PROC. ANN. art.
which Lopez borrowed from Joel Gonzalez at a barbeque on
                                                                       38.22 (West, Westlaw through 2015 3d R.S.) (providing, as
the evening of the murder; and (3) several personal items
                                                                       a prerequisite to admissibility, that the accused's statement
belonging to the decedent and his family, which Lopez gave
                                                                       capture the reading and waiver of his Miranda rights).
to Jennifer Gonzalez after the murder.
                                                                       2      The excluded statements consisted of Lopez's videotaped
A. Suppression Hearing                                                        interview on Wednesday and his written and videotaped
Prior to trial, Lopez moved to suppress his written and                       confession on Friday.
oral statements at the police department arguing the police             *3 With the admissibility of Lopez's statements no longer
interrogated him illegally. Specifically, Lopez argued that the        at issue, the focus of the suppression hearing turned to the
police obtained his statements (1) by ignoring his request             question of whether the fruit of the poisonous tree doctrine
for counsel in violation of his Miranda rights, and (2) by             applied to exclude the statements of Jennifer Gonzales,
using coercive tactics to get him to talk (and eventually              Danny Anguiano, and Joel Gonzalez, and the physical
confess) in violation of his due process right to be free              evidence that the police obtained through them. The State
from coercion under the Fourteenth Amendment. In addition              argued:
to his statements, Lopez sought to suppress any statement
that Jennifer Gonzales, Danny Anguiano, and Joel Gonzalez                           [T]hat evidence should not be
provided to the police, and any physical evidence that the                          suppressed because, what we're
                                                                                    saying is that there were statutory
police obtained through them. 1 Lopez argued that this
                                                                                    requirements that were not met, which


                 © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                                      2
Lopez v. State, Not Reported in S.W.3d (2015)


             would make the oral statements,                         43, 48 (Tex.Crim.App.2010). In a motion to suppress
             the recordings inadmissible, which                      hearing, the trial court is the “sole trier of fact and judge
             is an evidentiary rule. However, the                    of the credibility of the witnesses and the weight to be
             exclusionary rule does not apply to                     given their testimony.” State v. Ross, 32 S.W.3d 853, 855
             this situation because there were no                    (Tex.Crim.App.2000). As such, the trial court may “believe
             Constitutional violations that would                    or disbelieve all or any part of a witness's testimony,
             allow the ‘fruit of the poisonous tree’                 even if that testimony is not controverted.” Id. This is so
             doctrine to apply to this situation. So                 because it is “the trial court that observes first hand the
             the taint for the original oral statements              demeanor and appearance of a witness[.]” Id. On appeal,
             made by the Defendant does not carry                    we should afford “almost total deference to a trial court's
             to the evidence that was obtained as a                  determination of the historical facts that the record supports
             result of those statements.                             especially when the trial court's fact findings are based on
                                                                     an evaluation of credibility and demeanor.” Guzman v. State,
Citing Baker v. State, the State clarified that the fruit of the     955 S.W.2d 85, 89 (Tex.Crim.App.1997). We should also
poisonous tree doctrine did not apply unless there was actual        afford the same amount of deference to the “trial court's
police coercion. 956 S.W.2d 19, 23 (Tex.Crim. App.1997)              rulings on ‘application of law to fact questions,’ also known
(holding that “[i]n the absence of actual [police] coercion,         as ‘mixed questions of law and fact,’ if the resolution of those
the fruits of a statement taken in violation of Miranda need         ultimate questions turns on an evaluation of credibility and
not be suppressed under the ‘fruits' doctrine”). Lopez agreed        demeanor.” Id. Finally, we conduct a de novo review where
with this articulation of the law but argued that the fruits of      “the resolution of mixed questions of law and fact do not turn
his statements should be suppressed because the police used          on an evaluation of credibility and demeanor.” Id.
coercion to get him to talk.
                                                                      *4 When, as here, the trial court rules on a defendant's
To resolve this issue, it appears that the trial court determined,   motion to suppress without entering findings of fact, we must
and the parties agreed, that the focus of the suppression            view the evidence “in the light most favorable to the trial
hearing should center on the circumstances surrounding               court's ruling” and “assume that the trial court made implicit
Lopez's detention on his first day in custody when Lopez             findings of fact that support its ruling as long as those findings
told the police about Joel Gonzalez, Daniel Anguiano, and            are supported by the record.” Ross, 32 S.W.3d at 855. The
Jennifer Gonzalez.                                                   trial judge's decision will be sustained if it is correct on any
                                                                     theory of law applicable to the case. Id.
At the conclusion of the suppression hearing, the trial court
orally (1) granted Lopez's motion to suppress as to his
                                                                     B. Applicable Law
statements, and (2) denied his motion to suppress as to the
fruits of his statements. The trial court did not enter findings     i. Sources of Law
of fact and conclusions of law for its ruling.                       Lopez's first issue requires a review of three sources of law:
                                                                     (1) the Miranda rule; (2) the Texas confession statute; and (3)
                                                                     the right to be free from police coercion under the due process
                   II. Motion to Suppress                            clause. First, the Miranda rule secures the Fifth Amendment
                                                                     right against self-incrimination in the context of custodial
By his first issue, Lopez argues that suppression of his             interrogations by requiring that a person subject to police
statements also required suppression of the fruits of his            questioning receive the following warnings: “that he has a
statements because the police violated (1) his Miranda right         right to remain silent, that any statement he does make may
to counsel, and (2) his due process right to be free from police     be used as evidence against him, and that he has a right to
coercion.                                                            the presence of an attorney, either retained or appointed.”
                                                                     Miranda v. Arizona, 384 U.S. 436, 444 (1966). Second, the
                                                                     Texas confession statute implements the Miranda rule by
A. Standard of Review                                                requiring, among other things, that the accused's statement
We review a trial court's decision on a motion to suppress           be either written or recorded and contain a reading of the
for an abuse of discretion. Crain v. State, 315 S.W.3d



                © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                                 3
Lopez v. State, Not Reported in S.W.3d (2015)


Miranda warnings, along with the accused's waiver thereof.          of his statements. See Patane, 542 U.S. at 634; see also
TEX.CODE CRIM. PROC. ANN. art. 38.22.                               Baker, 956 S.W.2d at 23–24; In re H. V., 252 S.W.3d at
                                                                    329; Contreras, 312 S.W.3d at 583. Thus, assuming without
Third, the due process clause of the Fourteenth Amendment           deciding that the police violated Lopez's Miranda rights, we
requires that an accused's statement be voluntary and not           cannot conclude that the trial court abused its discretion in
the product of police coercion. See Armstrong v. State,             following well-settled law by refusing to suppress the fruits
718 S.W.2d 686, 693 (Tex.Crim.App.1985). To determine               of his statements. 3 See Ross, 32 S.W.3d at 855.
whether the circumstances render an accused's statement
coerced and involuntary, courts look at whether his will was        3      Lopez argues that the Texas exclusionary rule should
“overborne” by police coercion. Id. Courts look to the totality
                                                                           apply to exclude physical evidence derived from
of the circumstances surrounding the statement in making this
                                                                           Miranda violations because things have changed since
determination. Id. (citing Davis v. North Carolina, 384 U.S.               the last time the court of criminal appeals took up
737 (1966)). Relevant circumstances include the “length of                 the issue in Baker v. State, 956 S.W.2d 19, 23
detention, incommunicado or prolonged detention, denying a                 (Tex.Crim.App.1997). Specifically, Lopez points out
family access to a defendant, refusing a defendant's request               that in 2000, after the court of criminal appeals decided
to telephone a lawyer or family member, and physical                       Baker, the Supreme Court in Dickerson abandoned its
brutality.” Id. When the issue is raised, the State must prove             characterization of Miranda as a prophylactic rather than
voluntariness by a preponderance of the evidence. Juarez v.                a constitutional rule. See Dickerson v. United States,
State, 409 S.W.3d 156 (Tex.App.–Houston [1st Dist.] 2013                   530 U.S. 428, 444 (2000) (concluding that Miranda
pet. ref'd).                                                               announced a constitutional rule that Congress may not
                                                                           supersede legislatively). Lopez argues that Dickerson's
                                                                           characterization of Miranda as a constitutional rule
ii. Exclusionary Remedy                                                    calls for a reassessment of Baker's holding, which
A statement taken in violation of any one of these three                   was premised on a view that Miranda announced
                                                                           a prophylactic rule. We disagree. Four years after
sources of law is inadmissible; however, only a violation of
                                                                           Dickerson was decided, the Supreme Court in Patane
the third source of law—the due process right against police
                                                                           clarified that Dickerson did not change the rule that
coercion—entitles the accused to suppression of the fruits of
                                                                           physical evidence is admissible even if gained from
his statement. See United States v. Patane, 542 U.S. 630, 634–             questioning that violates Miranda. See United States v.
44 (2004) (plurality opinion); Chavez v. Martinez, 538 U.S.                Patane, 542 U.S. 630, 643 (2004) (plurality opinion).
760, 769 (2003); see also Baker, 956 S.W.2d at 22–24 (citing               Furthermore, in 2008, the Texas Supreme Court echoed
Michigan v. Tucker, 417 U.S. 433, 448–49 (1974)); In re H.V.,              this holding in the context of a juvenile proceeding. See
252 S.W.3d 319, 329 (Tex.2008); Contreras v. State, 312                    In re H.V., 252 S.W.3d 319, 328 (Tex.2008) (holding
S.W.3d 566, 583 (Tex.Crim.App.2010); State v. Cruz, No.                    that “violations of Miranda do not justify exclusion of
PD0082–14, 2015 WL 2236982, at *6 (Tex.Crim.App. May                       physical evidence resulting therefrom”). Thus, in light
13, 2015). “In determining whether evidence is inadmissible                of Patane and In re H.V., and without binding authority
as fruit of the poisonous tree, the critical issue is whether the          to the contrary, we decline Lopez's invitation to reassess
evidence was gained by exploitation of an illegality.” Graham              Baker's holding.

v. State, 964 S.W.2d 738, 741 (Tex.App.–Beaumont 1998)
(citing Wong Sun v. United States, 371 U.S. 471 (1963)), aff'd,     2. Police Coercion Claim
994 S.W.2d 651 (Tex.Crim.App.1999).                                 We now turn to Lopez's second argument that the trial
                                                                    court erred in failing to suppress the fruits of his statements
                                                                    because the police obtained them through coercion. Unlike
C. Analysis                                                         his Miranda claim, this claim entitled Lopez to suppression
                                                                    of the fruits of his statements if there was “actual [police]
1. Miranda Claim                                                    coercion.” See Baker, 956 S.W.2d at 23; see also Armstrong,
 *5 Lopez argues that the trial court erred in failing to           718 S.W.2d at 693. We afford almost total deference to the
suppress the fruits of his statements because the police            trial court's ruling on this issue because it involved a mixed
violated his Miranda right to counsel. However, as noted            question of law and fact, which turned on an evaluation of
above, the exclusionary remedy for a Miranda violation is           credibility and demeanor. See Garcia v. State, 15 S.W.3d
limited to suppression of Lopez's statements—not the fruits         533, 535 (Tex.Crim.App.2000); Guzman, 955 S.W.2d at 89.


                © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                                     4
Lopez v. State, Not Reported in S.W.3d (2015)


                                                                            fruits doctrine did not apply to exclude the fruits of Lopez's
Because the trial court did not enter written findings of fact,
                                                                            statements because the police could not have obtained that
we must view the evidence in the light most favorable to its
                                                                            evidence by exploiting an illegality. Id. Furthermore, Lopez
ruling. See Ross, 32 S.W.3d at 855. We must also assume that
                                                                            provides no legal authority to support a contrary position.
the trial court made implicit findings of fact in support of its
                                                                            Viewing the evidence in the light most favorable to its
ruling as long as those findings are supported by the record.
                                                                            ruling, we cannot conclude that the trial court erred in
Id. Finally, we must affirm the trial court's ruling if it is correct
                                                                            implicitly finding that Lopez's fruit-producing statements
on any theory of law applicable to the case. Id.
                                                                            were voluntary and not the product of police coercion. See
                                                                            Ross, 32 S.W.3d at 855. We therefore overrule Lopez's first
Guided by this standard of review, the record supports the
                                                                            issue.
trial court's implied finding that Lopez identified Jennifer
Gonzales, Danny Anguiano, and Joel Gonzalez during his
initial interview with the police, which took place on the
morning of his first day in custody. Lopez does not argue that                                     III. Conclusion 5
his will was overborne by police coercion during this initial
interview. Instead, to establish police coercion, Lopez points              5       By his second issue, Lopez contends that, if his first
to evidence—disputed by the State—that occurred after his                           issue was not preserved for appellate review, it was only
initial interview. Specifically, Lopez argues that the police                       because his trial counsel provided ineffective assistance
detained him for approximately three days, put him in a cell                        by waiving the issue when he stated “no objection”
with hostile individuals, denied him access to his lawyers and                      as the State introduced the evidence that his motion
family members, deprived him of food, and threated to arrest                        to suppress unsuccessfully sought to exclude. Having
                                                                                    already addressed the merits of Lopez's first issue,
his family. 4 The State responds that these circumstances,
                                                                                    we have assumed, without deciding, that counsel's “no
even if true, are irrelevant because Lopez made the fruit-
                                                                                    objection” statement did not waive his earlier-preserved
producing statements during his initial interview, and he does
                                                                                    claim. See Thomas v. State, 408 S.W.3d 877, 881
not argue that the police obtained those statements through
                                                                                    (Tex.Crim.App.2013) (indicating that if it is clear from
coercion. We agree with the State.                                                  the record as a whole that the defendant did not intend
                                                                                    to waive an earlier-preserved claim of error, then the
4       We note that this evidence was not without dispute, as                      claim has not been waived and should be resolved on
        the trial court was faced with conflicting testimony from                   the merits). We do so being guided by Texas Rule of
        several witnesses at the suppression hearing regarding                      Appellate Procedure 47.1, which requires that we “hand
        the deprivations Lopez claimed to have suffered.                            down a written opinion that is as brief as practicable but
                                                                                    that addresses every issue raised and necessary to final
 *6 The critical issue for purposes of applying the fruits
                                                                                    disposition of the appeal.” See TEX.R.APP. 47.1.
doctrine is whether the police obtained the fruits at issue by
exploiting Lopez's right to be free from coercion—i.e., by                  We affirm the judgment of the trial court.
exploiting an alleged illegality. See Graham, 964 S.W.2d at
741; see also Wong Sun, 371 U.S. at 471. With this in mind,
                                                                            All Citations
the trial court could have reasonably determined that Lopez's
will was not overborn by police coercion during his initial                 Not Reported in S.W.3d, 2015 WL 5602278
interview—i.e., the fruit-producing interview; therefore, the

 End of Document                                                        © 2015 Thomson Reuters. No claim to original U.S. Government Works.




                 © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                                             5
