Opinion issued July 30, 2015




                                     In The

                               Court of Appeals
                                     For The

                          First District of Texas
                            ————————————
                               NO. 01-14-00579-CR
                           ———————————
                         MAYRA FLORES, Appellant
                                        V.
                      THE STATE OF TEXAS, Appellee


                   On Appeal from the 339th District Court
                           Harris County, Texas
                       Trial Court Case No. 1280239


               MEMORANDUM OPINION ON REHEARING

      Appellant, Mayra Flores, was charged by indictment with murder.1 The jury

found her guilty, and the trial court assessed punishment at 25 years’ confinement.




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      See TEX. PENAL CODE ANN. § 19.02(b) (Vernon 2011).
In one issue, Appellant argues the trial court abused its discretion by admitting the

two audio recordings of her custodial interrogation.

      On June 11, 2015, we issued our original opinion in this case. On June 25,

2015, Flores filed a motion for rehearing. We deny the motion for rehearing,

withdraw our prior opinion and judgment, and issue this opinion and a new

judgment in their place. Our disposition remains the same.

      We affirm.

                                   Background

      On October 3, 2010, Appellant and her boyfriend, Francisco Castellano,

were arguing.    In the course of the argument, Appellant stabbed Castellano,

ultimately killing him.      Officers W. Kuhlman and R. Hunter interrogated

Appellant. Officer Kuhlman recorded the interview. Thirty-six minutes into the

interrogation, the recording device stopped. About 20 minutes after that, Officer

Kuhlman began recording again. The interrogation lasted for another 35 minutes

before the recording ends.

      At trial, Appellant sought to suppress the admission of the two audio

recordings, claiming the recording cutting off at the end of the second recording

prevented the State from establishing the admissibility requirements for both

recordings. The trial court overruled the objection and admitted both recordings.




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              Motion to Suppress Interrogation Audio Recordings

      In her sole issue on appeal, Appellant argues the trial court abused its

discretion by admitting the two audio recordings of her custodial interrogation.

A.    Standard of Review

      We review a trial court’s denial of a motion to suppress under a bifurcated

standard of review. Turrubiate v. State, 399 S.W.3d 147, 150 (Tex. Crim. App.

2013). We review the trial court’s factual findings for abuse of discretion and

review the trial court’s application of the law to the facts de novo. Id. Almost total

deference should be given to a trial court’s determination of historical facts,

especially those based on an evaluation of witness credibility or demeanor.

Gonzales v. State, 369 S.W.3d 851, 854 (Tex. Crim. App. 2012). At a suppression

hearing, the trial court is the sole and exclusive trier of fact and judge of the

witnesses’ credibility and may choose to believe or disbelieve all or any part of the

witnesses’ testimony. Maxwell v. State, 73 S.W.3d 278, 281 (Tex. Crim. App.

2002); State v. Ross, 32 S.W.3d 853, 855 (Tex. Crim. App. 2000).

      Where, as here, a trial judge does not make explicit findings of fact, we

review the evidence in the light most favorable to the trial court’s ruling. Walter v.

State, 28 S.W.3d 538, 540 (Tex. Crim. App. 2000). We will defer to the trial

court’s fact findings and not disturb the findings on appeal unless the trial court




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abused its discretion in making a finding not supported by the record. Cantu v.

State, 817 S.W.2d 74, 77 (Tex. Crim. App. 1991).

B.    Analysis

      Appellant’s objection to the two audio recordings is based on article 38.22 of

the Texas Code of Criminal Procedure. See TEX. CODE CRIM. PROC. ANN. art.

38.22 (Vernon Supp. 2014). Section three of article 38.22 establishes certain

requirements for the admissibility of the recording of a custodial interrogation. Id.

art. 38.22, § 3(a). One of the requirements is “the recording device was capable of

making an accurate recording, the operator was competent, and the recording is

accurate and has not been altered.” Id. art 38.22, § 3(a)(3). Appellant argues that,

because the recording stopped recording and left a 20-minute portion of the

interrogation unrecorded, the recording of the interrogation is not accurate.

      As an initial matter, Appellant asserts in her brief that Officers Kuhlman and

Hunter continued to talk with her for 20 minutes after the second recording

stopped, that they discussed the events surrounding Castellano’s death, and that she

made exculpatory statements that are not otherwise in the recordings.           While

Appellant testified to this effect during her examination and cross-examination at

trial, this testimony was not before the trial court at the time Appellant raised the

motion to suppress earlier in the trial. Because this evidence was not before the

trial court, it is not part of our appellate review. See Weatherred v. State, 15


                                          4
S.W.3d 540, 542 (Tex. Crim. App. 2000) (holding appellate court reviews trial

court’s ruling on admissibility of evidence “in light of what was before the trial

court at the time the ruling was made”). Accordingly, there was no evidence

before the trial court at the time of the ruling that the conversation continued for

any length of time after the recording cut off or that any statements were

subsequently made that would call into question the accuracy of the nearly hour-

long recorded conversation. Although Appellant continues to argue in her motion

for rehearing that her conversation with the police lasted another 20 minutes after

the second recording stopped and included exculpatory information, she presents

no argument for how this evidence was before the trial court at the time it made its

ruling.

      Appellant’s argument is premised on the idea that, because it ended abruptly,

the second recording has been altered, rendering it inadmissible pursuant to article

38.22. See TEX. CODE CRIM. PROC. ANN. art. 38.22, § 3(a) (establishing condition

for admissibility that recording has not been altered). In Quinones, the defendant

claimed his recorded statement was inadmissible because, in part, “the tape had

been altered by [a] fifteen second tapeover.” Quinones v. State, 592 S.W.2d 933,

943 (Tex. Crim. App. 1980). The Court of Criminal Appeals held that “any

alteration in a tape [does not] render[] the tape per se inadmissible. If the alteration

is accidental and is sufficiently explained so that its presence does not affect the


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reliability and trustworthiness of the evidence, the recording can still be admitted.”

Id. at 944.

      Quinones was decided under a framework that predates article 38.22. See id.

at 943 (citing Edwards v. State, 551 S.W.2d 731, 733 (Tex. Crim. App. 1977)).

Since the enactment of article 38.22, however, the Court of Criminal Appeals has

confirmed that inadvertent anomalies that do not affect the overall reliability of the

recording do not constitute the impermissible sort of alteration contemplated by

section 3 of article 38.22. See Maldonado v. State, 998 S.W.2d 239, 244–46 (Tex.

Crim. App. 1999) (citing CRIM. PROC. art. 38.22, § 3; Quinones, 592 S.W.2d at

944); see also Martines v. State, 371 S.W.3d 232, 244 (Tex. App.—Houston [1st

Dist.] 2011, no pet.) (citing Maldonado and Quinones for same proposition).

      In Maldonado, the defendant complained of a three-second and a one-second

portion of the recording of his statement that had been “over-recorded.” Id. at 244.

The Court of Criminal Appeals noted there was no evidence that the over-

recordings were intentional and they did not occur during his admission to killing

the victim. Id. at 244–45. Based on this, the court held, “There is adequate

evidence here to support the . . . conclusion that the anomalies were merely

inadvertent and did not affect the overall reliability of the tape.” Id. at 245.

      Assuming without deciding that an abrupt ending to a recording constitutes

an alteration, there was no evidence that the abrupt ending was anything other than


                                           6
inadvertent.   Furthermore, the recording did not end while Appellant was

discussing the events leading up to Castellano’s death. Officer Kuhlman testified

that the recordings “fairly and accurately depict[ed] the conversation that [he] had

with the defendant on that day.” There was nothing before the trial court at the

time it made its ruling to contradict this testimony. We hold Appellant has failed

to establish how the trial court abused its discretion by admitting the recording into

the record.

      We overrule Appellant’s sole issue.

                                    Conclusion

      We affirm the judgment of the trial court.




                                               Laura Carter Higley
                                               Justice

Panel consists of Chief Justice Radack and Justices Higley and Massengale.

Do not publish. TEX. R. APP. P. 47.2(b).




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