Reversed and Remanded and Majority and Dissenting Opinions filed December
23, 2014.




                                        In The

                       Fourteenth Court of Appeals

                                NO. 14-12-00096-CR

                            JOSE VASQUEZ, Appellant
                                          V.

                         THE STATE OF TEXAS, Appellee

                      On Appeal from the 228th District Court
                              Harris County, Texas
                          Trial Court Cause No. 1333231

                       MAJORITY                OPINION


      Appellant Jose Vasquez appeals his conviction for capital murder. After the jury
found him guilty, the trial court assessed punishment at life in prison. On appeal, we
held the trial court erred in admitting appellant’s videotaped confession and such error
was harmful, reversed appellant’s conviction, and remanded the case to the trial court.
The Court of Criminal Appeals granted the State’s petition for review, vacated our
judgment, and remanded the case to our court with instructions to remand the case to the
trial court for findings of fact and conclusions of law.1 The trial court rendered findings
of fact. Appellant reasserts his complaint that the trial court erred in denying appellant’s
motion to suppress the videotaped confession he made to an investigating officer during
custodial interrogation. Appellant argues that his statement was obtained by an
impermissible two-step interrogation technique. We again reverse the trial court’s
judgment and remand for a new trial.

                                             Background

       On April 16, 2010, appellant was arrested pursuant to a warrant and charged with
two counts of capital murder. Officers chased, apprehended, and handcuffed appellant at
a gas station, placed him in a squad car, and transported him to the police station for
questioning. Another suspect named Martinez had been with appellant and was arrested
at the same time. Officers placed appellant in an interview room, where he remained for
nearly eight hours while being interrogated by three or four investigating officers,
including Officers Padilla and Evans. The officer who last questioned appellant, Officer
Bolton, ultimately obtained a confession that was not captured on videotape. Soon
thereafter, Bolton asked permission to videotape appellant’s confession. Appellant
complied with the request and repeated his confession.2

       Appellant filed a written pretrial motion to suppress his confession on grounds
that he was not given Miranda3 warnings and he did not validly waive his rights before
he confessed. Appellant subsequently filed another pretrial motion to suppress his oral
       1
         Vasquez v. State, 411 S.W.3d 918, 919-20 (Tex. Crim. App. 2013). When a question is raised
as to the voluntariness of a statement of an accused, article 38.22 of the Code of Criminal Procedure
requires a trial court to enter “an order stating its conclusion as to whether or not the statement was
voluntarily made, along with the specific finding of facts upon which the conclusion was based.” Tex.
Crim. Proc. Code art. 38.22 § 6.
       2
           The relevant facts concerning the crime are discussed below.
       3
        Miranda v. Arizona, 384 U.S. 436, 478-79 (1966) (prohibiting use of oral statement of
accused made as result of custodial interrogation unless certain warnings are given and accused
knowingly, intelligently, and voluntarily waives rights).

                                                    2
statements on the sole ground that using the oral statements at trial would be prohibited
by Texas Code of Criminal Procedure article 38.22, section 3.4 The trial court carried
the motions with trial and held a hearing outside the presence of the jury to determine
the admissibility of the statements.

       At the hearing, only Bolton testified. He testified as follows:

       [Defense counsel:] And when you got involved . . . Padilla . . . and Evans
                          had been going back and forth interviewing . . .
                          Martinez and [appellant], correct?

       [Bolton:]             I believe they were interviewing the two defendants in
                             the case. And also I think there was a witness that they
                             interviewed.
       [Defense counsel:] . . . And you were in . . . a room where you could look
                          inside while they were talking to [appellant].
       [Bolton:]             Yes, sir.

       [Defense counsel:] And you could hear what Evans and Padilla [were]
                          telling them. . . . You could . . . see them and hear . . . ?

       [Bolton:]             Both. . . .

       [Defense counsel:] And when any other officers read them their Miranda
                          warnings, you don’t know or if they were read at all
                          ‘cause you weren’t there?

       [Bolton:]             Yes, I was there. I was in the monitoring room. When
                             [Evans and Padilla] entered the room, you know, they
                             read [appellant]—and when they interviewed . . .
                             Martinez, they also read him his legal warnings as well.
                             ...

       [Defense counsel:] . . . [W]here was [appellant] located when you saw

       4
         Texas Code of Criminal Procedure article 38.22, section 3 restricts the admissibility in a
criminal proceeding of statements made during custodial interrogation to statements that are recorded
and obtained after the accused has been given a statutory warning akin to the Miranda warnings and
“knowingly, intelligently, and voluntarily waives any rights set out in the warning.”

                                                 3
                         Evans and Padilla talking to him?

      [Bolton:]          . . . I was not present when . . . Padilla talked to
                         [appellant]. I was in an interview room talking
                         to . . . Martinez. I was conducting an interview there
                         while . . . Padilla was speaking to [appellant]. So, I was
                         not present when he spoke to him, you know. . . .

      [Defense counsel:] . . . [Y]ou stayed in the little anteroom listening to
                         somebody talking to [appellant] for a while. How long
                         did you stay in there and listen to that?

      [Bolton:]          . . . I didn’t watch that interview. While . . . Padilla or . .
                         . Evans, either one, was interviewing [appellant] . . . I
                         was interviewing . . . Martinez.

      [Defense counsel:] Okay. So what . . . they said and what they did, you
                         don’t know other than what they told you he was
                         saying.

      [Bolton:]          Yes, sir. . . .
      [Defense counsel:] And then eventually you decided to go talk to
                         [appellant].

      [Bolton:]          After [I] interview[ed] Martinez, . . . Padilla had already
                         concluded whatever interview he had with [appellant]. .
                         . . And [Padilla] asked me . . . to talk to [appellant]. So,
                         at that time I went to the interview room and . . . began
                         the interview with [appellant].

      Bolton testified that he gave appellant Miranda warnings, as reflected on the
videotape, but did not testify that he had previously done so before appellant confessed
off-camera:

      [Prosecutor:]      . . . Did you advise him of his legal rights and
                         warnings?

      [Bolton:]          Yes, sir, I did.
      [Prosecutor:]      Did he appear—did you go through each individual

                                             4
                           legal right and warning with him?

      [Bolton:]            Yes, sir, I did.

      [Prosecutor:]        Did he appear to understand each individual legal right
                           and warning?

      [Bolton:]            Yes, he did.
      [Prosecutor:]        Did he waive each individual legal right and warning
                           that you gave him?
      [Bolton:]            Yes, sir, at the end.

      [Prosecutor:]        . . . And did he agree to speak with you having waived
                           those rights?

      [Bolton:]            Yes, sir, he did.
(Emphasis added). Bolton did not clarify what he meant by “at the end.”

      At the beginning of the videotape recording, Bolton stated, “I’m going to read
your rights to you like I did a little earlier,” but he did not indicate on the videotape or in
his testimony whether the “earlier” reading of his rights occurred before or after the
previous confession had been made. Bolton further testified that appellant never
invoked his rights to remain silent or have counsel present.

      Appellant testified he invoked his right to remain silent before custodial
interrogation began and no officer gave him Miranda warnings until after he confessed
off-camera. The trial court suppressed the statements that were not captured on
videotape but admitted the videotaped confession.

      On appeal, we concluded that the State did not meet its burden to present
evidence that (1) officers read appellant his Miranda rights before appellant made off-
camera incriminating statements; and (2) officers did not employ a two-step
interrogation technique in a deliberate, calculated way to undermine Miranda warnings
or take curative measures to ensure appellant would understand the import and effect of
                                               5
the Miranda warning and waiver. Vasquez v. State, 397 S.W.3d 850, 854-58 (Tex.
App.—Houston [14th Dist.] 2013), vacated, 411 S.W.3d 918 (Tex. Crim. App. 2013).
We held that the trial court erred in admitting appellant’s videotaped statement and such
error was harmful. Id. at 858-59. We reversed the trial court’s judgment and remanded
the case for a new trial. Id. at 859.

       The Court of Criminal Appeals ordered the trial court to determine on remand:
(1) whether the original, unrecorded interview was custodial in nature; (2) whether
appellant was Mirandized prior to his original interrogation; (3) if not, whether the
police deliberately employed a two-step interrogation process; and (4) if they did,
whether any curative measures were taken before the second confession. Vasquez, 411
S.W.3d at 920. The trial court made the following findings of fact, in relevant part,
expressly “based upon the reporter’s record in this case and based upon th[e] Court’s
evaluation of the witnesses’ testimony and credibility”5:

            Detective Bolton credibly stated that he gave the defendant his legal
             warnings, and that the defendant waived his rights prior to giving the
             statements, all of which is reflected on the video.

            Bolton credibly testified that his partner, Investigator Padilla, had
             interviewed the defendant prior to the formal statement and that Bolton had
             monitored the interview.

            Bolton credibly testified that Padilla had given the defendant his legal
             warnings prior to questioning him.

            [A]ny statements indicating that Padilla had not given the defendant his
             legal warnings prior to questioning him are not credible.

            [T]he defendant was not credible when he testified during the suppression
             hearing that the officers never read him his legal warnings when they first
             started talking to him.

       5
          The trial court did not expressly make any conclusions of law, although some of the trial
court’s findings are conclusions of law.

                                                6
          [T]he defendant was not credible when he claimed that he repeatedly told
           the officers that he did not want to talk to them.

          Bolton credibly testified that the delay in taking a formal interview of the
           defendant was due to an effort to build rapport with the defendant.

          [T]he defendant’s original, unrecorded interview was custodial in nature.

          [T]he defendant was Mirandized prior to his original interrogation.

          [E]ven if the defendant had not been Mirandized prior to his original
           interrogation, there was no evidence that the police deliberately employed a
           two-step interrogation process in order to circumvent the protections of
           Miranda and [there was evidence] that the police did not deliberately
           employ such a two-step interrogation process. Rather, any delay in the
           administration of Miranda warnings was due to an effort to build rapport
           with the defendant rather than to intentionally circumvent the protections of
           Miranda.

          [C]urative measures were taken before the second confession by the
           following procedures: (1) there was minimal reference to the original
           interrogation in the defendant’s recorded statement, (2) different officers
           conducted the two interviews, (3) a substantial amount of time elapsed
           between the original interrogation at 5:15 p.m. and the formal recorded
           statement after midnight, and (4) Miranda warnings were again given and
           waived prior to the second statement, which was recorded.

                                      Discussion

      In his sole issue, appellant argues the trial court erroneously admitted the
videotaped confession because it was obtained by an improper two-step “question first,
warn later” interrogation technique. See Missouri v. Seibert, 542 U.S. 600, 622 (2003)
(Kennedy, J., concurring); Carter v. State, 309 S.W.3d 31, 35–36 (Tex. Crim. App.
2010). A “question first, warn later” interrogation technique consists of officers
interrogating a suspect and obtaining a confession without first providing Miranda
warnings; then, after the inculpatory statements are made, officers provide Miranda
warnings and obtain a waiver of the warnings. See Seibert, 542 U.S. at 604–05. Officers

                                           7
then have the suspect repeat the inculpatory statements in an attempt to cure the lack of
Miranda warnings.6 See id. at 605.

       In reviewing a trial court’s ruling on a motion to suppress, appellate courts must
view all of the evidence in the light most favorable to the ruling. State v. Garcia–Cantu,
253 S.W.3d 236, 241 (Tex. Crim. App. 2008). At a suppression hearing, the trial judge
is the sole factfinder. St. George v. State, 237 S.W.3d 720, 725 (Tex. Crim. App. 2007).
We give almost total deference to a trial court’s express determination of historical facts
when supported by the record. State v. Dixon, 206 S.W.3d 587, 590 (Tex. Crim. App.
2006); State v. Ross, 32 S.W.3d 853, 855–56 (Tex. Crim. App. 2000). The same
deference is accorded to determinations of mixed questions of law and fact if their
resolution depends upon witness credibility and demeanor. Ross, 32 S.W.3d at 856.

       Issues that present purely legal questions are considered under a de novo
standard. Dixon, 206 S.W.3d at 590; Ross, 32 S.W.3d at 856. We will sustain the trial
court’s ruling if it is reasonably supported by the record and is correct on any theory of
law applicable to the case. Villarreal v. State, 935 S.W.2d 134, 138 (Tex. Crim. App.
1996). In this connection, when the trial court files findings of fact with its ruling on a
motion to suppress, we do not engage in our own factual review, but determine only
whether the record supports the trial court’s fact findings. Paolilla v. State, 342 S.W.3d
783, 792 (Tex. App.—Houston [14th Dist.] 2011, pet. ref’d).

       Under Miranda and article 38.22 of the Code of Criminal Procedure, an oral
statement of an accused made as a result of custodial interrogation is not admissible at
trial unless the accused was warned of his rights and knowingly, intelligently, and
voluntarily waived those rights. Miranda v. Arizona, 384 U.S. 436, 478-79 (1966); Tex.

       6
           The classic example of this technique occurs when “the suspect’s first, unwarned
interrogation [leaves] ‘little, if anything, of incriminating potential left unsaid,’ making it ‘unnatural’
not to ‘repeat at the second stage what had been said before.’” Bobby v. Dixon, 132 S. Ct. 26, 31
(2011) (citing Seibert, 542 U.S. at 616–17)).

                                                    8
Code Crim. Proc. art. 38.22 § 3. If the record shows the warnings were received and
understood by the accused and he did not invoke his rights, the accused waives the right
to remain silent by making an uncoerced statement to the police. Umana v. State, No.
14-13-00168-CR, 2014 WL 4199116, at *7 (Tex. App.—Houston [14th Dist.] Aug. 26,
2014, pet. filed). We review the totality of the circumstances as reflected in the record to
determine whether the trial court’s finding or conclusion that an accused voluntarily
waived his rights finds support in the record. Id. at *8-9.

      In the plurality opinion Missouri v. Seibert, four justices of the Supreme Court
concluded that a “question first, warn later” interrogation technique circumvented the
objective of Miranda by rendering any warnings given ineffective. Seibert, 542 U.S. at
611–13; see also Martinez v. State, 272 S.W.3d 615, 619-20 (Tex. Crim. App. 2008).
The Seibert plurality found that the purpose of this interrogation technique was to obtain
a confession the suspect may not have made if he had understood his rights at the outset.
Seibert, 542 U.S. at 611. In his concurring opinion in Seibert, Justice Kennedy
determined that when a two-step interrogation technique is used in a deliberate,
calculated way to undermine Miranda warnings, absent “curative measures,” the post-
warning statements must be excluded. Seibert, 542 U.S. at 622 (Kennedy, J.,
concurring). In Carter, the Court of Criminal Appeals expressly adopted Justice
Kennedy’s concurrence in Seibert. Carter, 309 S.W.3d at 38.

      I.     Issue Preserved for Appellate Review

      The State filed a supplemental brief, arguing for the first time on remand that
appellant did not preserve error on his appellate issue because neither of his two pretrial
motions to suppress mentioned “Seibert or ‘midstream warnings’ or a ‘two-step
interrogation’” and appellant’s counsel did not mention a “two-step interview” until
closing argument at the suppression hearing. The State contends that the focus of the
suppression motions was the “voluntariness of the appellant’s statement and the State’s

                                             9
compliance with Article 38.22 of the Code of Criminal Procedure, which governs the
admission of oral statements.”

      To preserve an issue for appellate review, a defendant must first raise that issue in
the trial court. Tex. R. App. P. 33.1(a). Eschewing hyper-technical requirements for
preservation, the Court of Criminal Appeals stated, “[A]ll a party has to do to avoid the
forfeiture of a complaint on appeal is to let the trial judge know what he wants, why he
thinks himself entitled to it, and to do so clearly enough for the judge to understand him
at a time when the trial court is in a proper position to do something about it.” Lankston
v. State, 827 S.W.2d 907, 909 (Tex. Crim. App. 1992); see also Bedolla v. State, 442
S.W.3d 313, 316 (Tex. Crim. App. 2014).

      In his first motion to suppress, appellant asserted that his:

      confession was involuntary and was coerced and enticed from [appellant].
      [Appellant] was arrested around 11 a.m. and he didn’t give a video
      statement until almost twelve hours later. He was not given his Miranda
      warnings and had requested an attorney. The officers persistently and
      coercively interviewed him and wore down his resistance and force[d] him
      to make a statement.
      In his second motion to suppress, appellant contended that he “may have made
oral statements after his arrest and the use of [such statements] is prohibited by the
Texas Code of Criminal Procedure, Article 38.22, Section 3.” Under article 38.22,
unrecorded statements of an accused obtained through custodial interrogation are not
admissible in a criminal proceeding. Tex. Code Crim. Proc. art. 38.22 § 3. Recorded
statements are admissible only if the voices on the recording are identified. Id. art. 38.22
§ 3(a)(4).

      We agree that the focus of the second motion to suppress was on the admissibility
of appellant’s unrecorded statements under article 38.22. However, the first motion was
focused on the voluntariness of appellant’s statement, purportedly taken after officers

                                            10
did not give appellant Miranda warnings, “persistently and coercively interviewed
him[,] wore down his resistance[,] and force[d] him to make a statement.”7

       At the suppression hearing, Bolton testified he Mirandized appellant “at the end”
before recording his statement. Thus, the issue regarding voluntariness of appellant’s
confession in the context of midstream warnings was before the trial court. Also at the
close of the hearing, appellant’s counsel asserted the recorded statement was
inadmissible under article 38.22, section 3 because the voices on the recording were not
identified, but he then presented a second argument:

       And my next approach . . . is I’m contending this is a two-step interview. . .
       . And once they got him to say what they wanted him to say, they took him
       in and videoed him and gave his Miranda warning and he told the story
       again. And I’m suggesting under the existing case law, that’s illegal and the
       statement should be suppressed.

The trial court suppressed the unrecorded statements but not the video statement.

       Terms such as “two-step questioning,” “two-step interrogation technique,” and
“two-step question first, warn later” all refer to the practice of obtaining a confession
and then giving Miranda warnings midstream during an interview of a suspect. See,

       7
          We note that the Court of Criminal Appeals has twice addressed in unprecedential,
unpublished opinions whether raising the issue of voluntariness preserves the issue of whether a two-
step interrogation technique was used in a deliberate, calculated way to undermine Miranda
protections. See Hunt v. State, No. PD-0152-12, 2013 WL 3282973, at *4-5 (Tex. Crim. App. June 26,
2013) (not designated for publication) (holding raising the issue of voluntariness in the context of
midstream warnings preserved complaint when, among other things, trial court found “second
confession [was] not so tainted as to make it inadmissible” and thus trial court “clearly” had notice of
appellant’s Seibert complaint); Batiste v. State, No. AP-76,600, 2013 WL 2424134, at *16 (Tex. Crim.
App. June 5, 2013) (not designated for publication) (holding that objection to “voluntariness” of
defendant’s statement did not preserve error as to two-step interview when appellant did not reference
Seibert, Carter, “two-step questioning,” “question first, warn later” or any other issues that might raise
an issue under Seibert and the trial court’s findings of fact and conclusions of law were directed only to
general voluntariness). The facts of this case are closer to Hunt because appellant raised the issue of
voluntariness in his first suppression motion and, as discussed below, objected to the officers’
purported “two-step interview” at the hearing and the trial court’s findings are directed toward the
Seibert challenge.

                                                   11
e.g., Carter, 309 S.W.3d at 37 (referencing “two-step interrogation technique,” “two-
step strategy,” and “two-step, ‘question first, warn later’ strategy” as potential violations
of a suspect’s Miranda protections). As set forth above, this interrogation technique is
improper when employed in a deliberate, calculated way to undermine Miranda
warnings, absent curative measures. Id. at 37-38. We conclude appellant’s references to
“two-step interview” and officers’ Mirandizing appellant only after “they got him to say
what they wanted him to say” sufficiently apprised the trial court of appellant’s
objection that police violated his Miranda protections by employing an improper two-
step interrogation technique.8

       Moreover, the trial court’s findings are directed toward the issues relevant to a
Seibert challenge. The trial court found appellant was Mirandized before his original
interrogation, there was no evidence the police deliberately employed a two-step
interrogation process in order to circumvent the protections of Miranda, and curative
measures were taken by the officers.9 See Carter, 309 S.W.3d at 37-38.

       We conclude appellant’s objection was clear enough for the trial court to
understand the Seibert objection because appellant raised the issue of voluntariness in
his first suppression motion and objected at the hearing to the officers’ purported “two-
step interview” and the trial court’s findings were directed toward the Seibert challenge.
Accordingly, appellant preserved the issue for our review.

       II.     No evidence that officers read appellant his Miranda warnings before
               appellant made off-camera incriminating statements
       The State, as the proponent of the evidence of appellant’s confession, bears the
       8
         We find the State’s complaint that this objection was not raised until “closing argument at the
suppression hearing” to be inconsequential. At that point in the hearing, the State could have requested
to put on more evidence regarding this issue, but it did not do so.
       9
         We acknowledge that the trial court rendered its findings on remand; however, it made no
finding that it had not been aware of appellant’s Seibert challenge at the time of the suppression
hearing.

                                                  12
burden of establishing its admissibility. See Martinez, 272 S.W.3d at 623 (citing Tex. R.
Evid. 104(a), De la Paz v. State, 273 S.W.3d 671, 680 (Tex. Crim. App. 2008), and
Cofield v. State, 891 S.W.2d 952, 954 (Tex. Crim. App. 1994)). It is also the State’s
burden to establish a valid waiver of Miranda rights by a preponderance of the
evidence. See id. at 619 n.10; see also Seibert, 542 U.S. at 608 n.1 (“The prosecution
bears the burden of proving, at least by a preponderance of the evidence, the Miranda
waiver.”).

      The trial court made the following findings relevant to this issue:

           Detective Bolton credibly stated that he gave the defendant his legal
            warnings, and that the defendant waived his rights prior to giving the
            statements, all of which is reflected on the video.

           Bolton credibly testified that his partner, Investigator Padilla, had
            interviewed the defendant prior to the formal statement and that Bolton had
            monitored the interview.

           Bolton credibly testified that Padilla had given the defendant his legal
            warnings prior to questioning him.

           [A]ny statements indicating that Padilla had not given the defendant his
            legal warnings prior to questioning him are not credible.

           [T]he defendant was not credible when he testified during the suppression
            hearing that the officers never read him his legal warnings when they first
            started talking to him.

           [T]he defendant was Mirandized prior to his original interrogation.

We shall analyze these findings to determine whether they are supported by the record.

      Warnings by Bolton. Bolton did not testify that he Mirandized appellant before
appellant made off-camera incriminating statements. On the video, Bolton stated, “I’m
going to read your rights to you like I did a little earlier.” However, he did not testify or
otherwise indicate on the video that he had done so before appellant confessed off-


                                             13
camera. In fact, he testified that appellant waived his Miranda rights “at the end,” but he
did not explain what he meant by that phrase. We conclude the trial court’s finding that
“Bolton credibly stated that he gave the defendant his legal warnings” is supported by
the record. But the finding that “Bolton credibly stated that . . . the defendant waived his
rights prior to giving the statements, all of which is reflected on the video” is not
supported by the record (emphasis added).

      Evans’ and Padilla’s Interview of Appellant. Bolton testified that he did not
monitor Evans’ or Padilla’s interview of appellant. As set forth above, the following
exchange occurred upon defense counsel’s cross-examination of Bolton:

      [Defense counsel:] . . . [W]here was [appellant] located when you saw
                         Evans and Padilla talking to him?
      [Bolton:]            . . . I was not present when . . . Padilla talked to
                           [appellant]. I was in an interview room talking to . . .
                           Martinez. I was conducting an interview there while . . .
                           Padilla was speaking to [appellant]. So, I was not
                           present when he spoke to him, you know. . . .

      [Defense counsel:] . . . [Y]ou stayed in the little anteroom listening to
                         somebody talking to [appellant] for a while. How long
                         did you stay in there and listen to that?

      [Bolton:]            . . . I didn’t watch that interview. While . . . Padilla or . .
                           . Evans, either one, was interviewing [appellant] . . . I
                           was interviewing . . . Martinez.

      [Defense counsel:] Okay. So what . . . they said and what they did, you
                         don’t know other than what they told you he was
                         saying.

      [Bolton:]            Yes, sir. . . .

Accordingly, the trial court’s finding that “Bolton credibly testified that . . . Padilla . . .
had interviewed the defendant prior to the formal statement and that Bolton had
monitored the interview” is not supported by the record.

                                              14
      Bolton had testified, however, as follows: “I was in the monitoring room. When
[Evans and Padilla] entered the room, you know, they read [appellant]—and when they
interviewed . . . Martinez, they also read him his legal warnings.” This testimony is
unclear and inconsistent with Bolton’s later testimony clarifying that he did not monitor
appellant’s interview.

      The trial court is the sole factfinder at a suppression hearing and may believe or
disbelieve some or all of a witness’s testimony. Amador v. State, 275 S.W.3d 872, 878
(Tex. Crim. App. 2009). However, the trial court’s account of the evidence must be
plausible in light of the record viewed in its entirety and must be reasonably supported
by the evidence. See id. at 878-80 (concluding, after considering facts “taken as a
whole” and reasonable inferences therefrom that the State carried its burden to show
warrantless arrest was supported by probable cause); see also Miller v. State, 393
S.W.3d 255, 263 (Tex. Crim. App. 2012) (“[A]ny trial-court findings inconsistent with .
. . conclusive evidence may be disregarded as unsupported by the record, even when
that record is viewed in a light most favorable to the trial court’s ruling.”); Carmouche
v. State, 10 S.W.3d 323, 332-33 (Tex. Crim. App. 2000) (concluding trial court’s
finding that defendant voluntarily consented to search was not supported by record
when “indisputable” video evidence contradicted essential portions of ranger’s
testimony).

      Although Bolton initially stated that Evans and Padilla Mirandized appellant,
Bolton clarified he was not present when Evans and Padilla interviewed appellant.
Bolton further testified he was not present when appellant was arrested at 2:00 p.m.
Bolton had been asked to assist in the interrogation around 5:15 p.m. and could “really
just testify to anything that happened after 5:15.” Bolton testified he interviewed another
suspect and did not begin interviewing appellant until 10:00 or 10:30 p.m. Thus, he was
not aware of what transpired with appellant from 2:00 p.m. until he started his interview

                                            15
at 10:00 or 10:30 p.m. Reviewing the entirety of Bolton’s testimony, we conclude the
trial court’s findings that “Bolton credibly testified that Padilla had given the defendant
his legal warnings prior to questioning him” and appellant “was Mirandized prior to his
original interrogation” are not plausible or reasonably supported by the evidence.

      Appellant’s Testimony. With regard to the other two findings, that “any
statements indicating that Padilla had not given the defendant his legal warnings prior to
questioning him are not credible”10 and appellant “was not credible when he testified
during the suppression hearing that the officers never read him his legal warnings when
they first started talking to him,” the trial court was allowed to disbelieve appellant’s
testimony on these points. See Amador, 275 S.W.3d at 878. However, the State was still
required to meet its burden to show appellant received Miranda warnings before making
the off-camera incriminating statements, which it failed to do. See Martinez, 272
S.W.3d at 619 n.10.

      We conclude the trial court’s finding that appellant received his Miranda
warnings before making incriminating statements is not supported by the record. To the
contrary, the State failed to present evidence that appellant received such warnings.
Therefore, we must address whether the State established that it did not employ a two-
step interrogation technique in a deliberate way to undermine appellant’s Miranda
protections.

      III.      No evidence that the two-step interrogation technique was not
                deliberately employed
      Courts should determine “whether the evidence shows that [the interrogating
officer] deliberately employed a two-step ‘question-first, warn later’ interrogation
technique to circumvent [the] appellant’s Miranda protections.” Carter, 309 S.W.3d at
38; Ervin v. State, 333 S.W.3d 187, 213 (Tex. App.—Houston [1st Dist.] 2010, pet.
      10
           The only evidence of this was presented through appellant’s testimony.

                                                  16
ref’d). Because the “question of whether the interrogating officer deliberately withheld
Miranda warnings will invariably turn on the credibility of the officer’s testimony in
light of the totality of the circumstances surrounding the interrogation,” a factual finding
regarding the officer’s credibility is entitled to deference on appeal and is reviewed only
for clear error.11 Carter, 309 S.W.3d at 39; Ervin, 333 S.W.3d at 213.

       The following findings by the trial court are relevant to this issue:

             [T]he defendant was not credible when he claimed that he repeatedly told
              the officers that he did not want to talk to them.

             Bolton credibly testified that the delay in taking a formal interview of the
              defendant was due to an effort to build rapport with the defendant.

             [E]ven if the defendant had not been Mirandized prior to his original
              interrogation, there was no evidence that the police deliberately employed a
              two-step interrogation process in order to circumvent the protections of
              Miranda and [there was evidence] that the police did not deliberately
              employ such a two-step interrogation process. Rather, any delay in the
              administration of Miranda warnings was due to an effort to build rapport
              with the defendant than to intentionally circumvent the protections of
              Miranda.
We may set aside these findings only if they are clearly erroneous. See Carter, 309
S.W.3d at 39-41; McCulley v. State, 352 S.W.3d 107, 118 (Tex. App.—Fort Worth
2011, pet. ref’d).

       In Martinez, the Court of Criminal Appeals held that the State has the burden of
proving that a two-step interrogation technique was not deliberately employed in light

       11
            When the two-step questioning tactic is not deliberately employed, “a suspect who has once
responded to unwarned yet uncoercive questioning is not thereby disabled from waiving his rights and
confessing after he has been given the requisite Miranda warnings.” See Oregon v. Elstad, 470 U.S.
298, 318 (1985); see also Carter, 309 S.W.3d at 36; Ervin, 333 S.W.3d at 213. In this situation, when
the first statement is unwarned but not coerced, “the admissibility of any subsequent statement should
turn . . . solely on whether it is knowingly and voluntarily made.” Elstad, 470 U.S. at 309; see also
Carter, 309 S.W.3d at 32; Ervin, 333 S.W.3d at 213. “Unless a deliberate two-step strategy is
employed, Elstad applies.” Carter, 309 S.W.3d at 37; see also Ervin, 333 S.W.3d at 213.

                                                 17
of the State’s burden to show a confession is admissible. 272 S.W.3d at 623-24. No
other Texas cases have addressed this issue directly.12 In Martinez, police officers
questioned the defendant about a robbery and murder before the defendant was given
Miranda warnings. Id. at 618. Thereafter, a polygraph test was administered to the
defendant, which took three to four hours. Id. The questions asked during the polygraph
test were not in the record. Id. After the polygraph test, an officer informed the
defendant that he had failed the test. Id. Appellant was then taken to municipal court,
where a magistrate read him his Miranda warnings. Id. Upon his return to the police
station, an officer again read appellant his Miranda warnings, and appellant was again
questioned about the robbery and murder. Id. Appellant then gave incriminating
statements on videotape. Id. The State argued appellant had the burden of producing an
adequate record regarding what questions were asked during the polygraph test and any
unwarned conversations. Id. at 623.

       The Court of Criminal Appeals noted,

       When the officers initially questioned [the defendant] at the police station
       without giving him Miranda warnings, they violated [the defendant’s]
       constitutional rights. At the suppression hearing, the state failed to provide
       the polygrapher’s name, the questions used during the polygraph
       examination, or the content of the initial interrogation of [the defendant],
       all of which are under the exclusive control of the state.

Id. at 623-24.

       In holding that appellant’s videotaped statement was inadmissible, the court
further noted,

       12
          Other Texas courts of appeals have noted that the burden of showing admissibility is on the
State. See, e.g., Ervin, 333 S.W.3d at 235-36. Other jurisdictions have imposed this burden on the
government as consistent with the government’s burden to prove admissibility of a confession before it
may come into evidence. See, e.g., U.S. v. Capers, 627 F.3d 470, 479 (2d Cir. 2010); U.S. v. Stewart,
536 F.3d 714, 719 (7th Cir. 2008); U.S. v. Ollie, 442 F.3d 1135, 1142-43 (8th Cir. 2006); Ross v. State,
45 So. 3d 403, 427 (Fla. 2010).

                                                  18
      Here, [the defendant] was in custody for the purposes of Miranda; he gave
      both statements to law-enforcement officials after his formal arrest
      pursuant to an arrest warrant, and both statements were given at a police
      station. This indicates that the absence of Miranda warnings at the
      beginning of the interrogation process was not a mistake based on the
      interrogating officers’ mistaken belief that [the defendant] was not in
      custody, but rather a conscious choice.
Id. at 624.

      In his concurrence, Judge Price stated, “I do not know whether [the State’s]
burden should extend to disproving circumstances that precede the Miranda warnings
that might suffice, in contemplation of Seibert, to call the efficacy of those warnings
into doubt.” Id. at 628 (Price, J., concurring). But he noted without regard to which
party carried the burden, the defendant “prove[d] circumstances that would impugn the
efficacy of otherwise valid Miranda warnings.” Id. Despite these statements and other
statements that appear to conflict with the analysis in the opinion authored by Judge
Johnson, Judge Price joined Judge Johnson’s opinion, making it a five-judge majority
opinion of the court. See id. at 617 (noting that Judge Price joins Judge Johnson’s
opinion); Id. at 630 (Price, J., concurring) (stating that Judge Price joins Judge
Johnson’s opinion).

      Justice Hervey dissented, and three justices joined her dissent. She stated she
would require the defendant to present a sufficient record showing a police officer
deliberately employed the two-step questioning tactic. Id. at 631 (Hervey, J.,
dissenting). She cited cases that stand for the proposition that it is the defendant’s
burden to prove his statements were the result of custodial interrogation and then the
burden shifts to the State to defeat the defendant’s claim. Id. at 643. Here, it is
undisputed that appellant was in custody when he made his statements. He had been
arrested pursuant to a valid arrest warrant.



                                               19
       As in Martinez, the record in this case also is incomplete.13 Neither Evans nor
Padilla testified. There is no evidence of what transpired before Bolton began his
interrogation at 10 or 10:30 p.m. Appellant confessed, and the officer “came out of the
video room . . . and told [the other officers] that [appellant] had confessed” and “we
need to get it on video.” A few minutes later, at “about midnight,” Bolton reentered the
interrogation room, started the recording, and read appellant his Miranda warnings.
Although Bolton stated on the video that he read appellant his Miranda warnings “a
little earlier,” no evidence shows when this occurred and thus whether it occurred before
appellant made any incriminating statements off-camera. On the video, appellant repeats
earlier unrecorded statements, which are not in the record, but Bolton refers to them
numerous times during the video recording.14

       The State presented no evidence that the two-step interrogation was not
deliberately employed to undermine the Miranda warnings. The trial court’s finding that
“there was no evidence that the police deliberately employed a two-step interrogation
process in order to circumvent the protections of Miranda” is not relevant because it
shifts the burden to the appellant to prove the two-step interrogation was deliberately
employed, when the State was required to show that it was not. See id. at 623-24.

       Although appellant presented some evidence that the interrogation technique was
deliberately employed to undermine the Miranda warnings, the trial court was entitled
to discredit appellant’s testimony. See Amador, 275 S.W.3d at 878. However, the State
had the burden to present evidence that its interrogation technique was not deliberately
employed to undermine the Miranda warnings. See Martinez, 272 S.W.3d at 623-24. As

       13
          The Martinez court held that an incomplete record does not preclude an appellate court from
analyzing whether a two-step questioning tactic was deliberately employed because it is the State’s
burden to show the confession is admissible. See Martinez, 272 S.W.3d at 623.
       14
           For example, after administering Miranda warnings, Bolton began the video interrogation by
stating, “Tell me what we talked about earlier.”

                                                 20
in Martinez, appellant was in custody for Miranda purposes when he was being
interrogated. He gave both statements to law-enforcement officers after he had been
arrested pursuant to a valid arrest warrant. Both statements were given at a police
station. As set forth above, the State did not show that officers read appellant his
Miranda warnings before the first confession was obtained. This indicates that the
absence of Miranda warnings before the beginning of the interrogation process was not
a mistake but rather a conscious choice. Id. at 624.

       The trial court found, however, that “the police did not deliberately employ [an
illegal] two-step interrogation process. Rather, any delay in the administration of
Miranda warnings was due to an effort to build rapport with the defendant rather than to
intentionally circumvent the protections of Miranda.” The record indicates, to the
contrary, that Bolton testified he did not record the entire interview of appellant because
he wanted “to build rapport.” He did not testify that he or the other officers delayed
administering Miranda warnings to build rapport.15

       The State cites two cases from jurisdictions outside of Texas in support of its
argument that a delay in administering Miranda warnings to build rapport is not a
deliberate attempt to circumvent Miranda protections. The first case, an unpublished
opinion, is distinguishable because the officer there testified that during the course of
the conversation he realized he had forgotten to Mirandize the suspect: “The
conversation began . . . a rapport was built, and it wasn’t until some facts started to
come out that I realized I had forgotten to Miranda. That’s why I stopped the interview
then, made the Miranda advisement, and made sure he waived before we continued.”
       15
         Defense counsel asked Bolton, “And if it comes to a point whether the Miranda warnings
were read or not, y’all talked to him for almost eight hours and then all the [sic] sudden decide to start
audio. Why don’t you audio the whole thing?” (Emphasis added.)
         Bolton responded, “[W]e just don’t do it. And it’s just a decision that we made that—
sometimes it’s like hours, you know, just to get—to build rapport with the individual. You know, we
talk to them about a number of things, about family.”

                                                   21
People v. Delatorre, No. B230591, 2012 WL 909659, at *2 (Cal. Ct. App. Mar. 19,
2012). Forgetfulness is not deliberateness. See Carter, 309 S.W.3d at 39 (articulating
standard as “whether interrogating officer deliberately withheld Miranda warnings”).
Moreover, the court of appeals in Delatorre held that the defendant had waived his
complaint that “his admissions had been tainted by the delayed Miranda warning”
because at trial, the defendant only asked the trial court to exclude his prewaiver
statements. Id. at *4. Thus, the Delatorre court did not need to address whether the
police officer’s delay in administering the Miranda warnings was deliberate. As set
forth above, appellant did not waive that issue in this case.

       The second case also is distinguishable. The court held that officers’ prewaiver
“initial background interview” of a suspect for 20 minutes was not a deliberate attempt
to undermine Miranda. State v. Hughes, 272 S.W.3d 246, 248, 254 (Mo. Ct. App.
2008). During that 20-minute conversation, officers asked the suspect various questions
about his background, relationships with family members, and why he had come to the
city where the crime was committed. Id. at 248. Importantly, before appellant confessed,
officers read his Miranda rights to him and he signed a Miranda waiver form. Id. The
officer who testified at trial identified two reasons beyond collection of background
information justifying the prewaiver discussion: “(1) to determine whether the subject is
under the influence of drugs or alcohol to an extent that would prevent the subject from
meaningfully participating in an interrogation; and (2) to assess the subject’s level of
intellectual functioning, facility with the English language, and ability to read.” Id. at
254.

       In concluding that “the officers had no intent to violate Miranda by conducting
their interrogation in the manner they chose,” the court noted:

       We are not blind to the fact that an evident purpose of the officers’ pre-
       waiver questioning of [the suspect] (beyond acquiring background
       information, and gauging his intellectual capacity, literacy, and lucidity)
                                            22
      was to build a rapport to facilitate [the] further interrogation. The officers
      did so by engaging [the suspect] in a discussion of various non-threatening
      subjects. . . . However, nothing in that pre-waiver discussion undermined,
      misrepresented, or otherwise rendered ineffective the Miranda warning
      [the suspect] was ultimately given, or the waiver he ultimately executed
      (nor did the officers intend to achieve this effect, according to the trial
      court’s findings).
Id. at 255. The clear implication from this statement is that while a prewaiver attempt to
build rapport by discussing subjects unrelated to the crime is permissible, taking steps
during a prewaiver discussion to “undermine[], misrepresent[], or otherwise render[]
ineffective the Miranda warning” would be a violation of Seibert. See id.

      In this case, unlike the facts in Hughes, appellant was in custody for
approximately eight hours before Bolton began questioning him and had previously
been questioned by Evans and Padilla for an indeterminate amount of time. The record
is silent regarding what subjects were discussed as well as to whether appellant received
his Miranda warnings during that timeframe. Moreover, as set forth above, Bolton did
not testify that the administration of Miranda warnings was delayed to build rapport. He
merely testified that the recording was delayed for that purpose.

      The State has not cited any cases holding that an officer’s intentional withholding
of Miranda warnings to build rapport is not a deliberate attempt to circumvent Miranda
protections, nor have we found any. See Martinez, 272 S.W.3d at 624-25 (holding State
failed to meet burden to show withholding Miranda warnings was not deliberate when,
among other things, interrogation process at police station was lengthy and appellant did
not receive Miranda warnings until seven hours after the initial interrogation). We
conclude that the trial court’s finding that the police did not deliberately employ an
illegal two-step interrogation process because any delay was due to an effort to build
rapport is not supported by the record. No testimony was elicited to this effect. There is
no evidence that the officers did not make a conscious choice to withhold Miranda

                                           23
warnings. See Martinez, 272 S.W.3d at 624. Accordingly, the State failed to meet its
burden to show that its interrogation technique was not deliberately employed to
undermine Miranda protections. See id. at 623-24.

      IV.    No Evidence of Curative Measures
      As set forth above, absent curative measures, the post-warning statements must be
excluded. Seibert, 542 U.S. at 622 (Kennedy, J., concurring); Carter, 309 S.W.3d at 37.
“Curative measures should be designed to ensure that a reasonable person in the
suspect’s situation would understand the import and effect of the Miranda warning and
of the Miranda waiver.” Martinez, 272 S.W.3d at 621; see also Ervin, 333 S.W.3d at
212-13. Curative measures allow the accused to distinguish the two contexts and
appreciate that the interrogation has taken a new turn. Martinez, 272 S.W.3d at 621;
Ervin, 333 S.W.3d at 213. Examples of appropriate curative measures include (1) a
substantial break in time and circumstances between the unwarned statement and the
Miranda warning; (2) explaining to the defendant that the unwarned statements, taken
while in custody, are likely inadmissible; (3) informing the suspect that, although he
previously gave incriminating information, he is not obligated to repeat it;
(4) interrogating officers refraining from referring to the unwarned statement unless the
defendant refers to it first; or (5) if the defendant does refer to the pre-Miranda
statement, the interrogating officer stating that the defendant is not obligated to discuss
the content of the first statement. Martinez, 272 S.W.3d at 626-27 (referring to examples
in Seibert plurality and concurrence).

      The trial court made the following findings relevant to this issue:

      [C]urative measures were taken before the second confession by the
      following procedures: (1) there was minimal reference to the original
      interrogation in the defendant’s recorded statement, (2) different officers
      conducted the two interviews, (3) a substantial amount of time elapsed
      between the original interrogation at 5:15 p.m. and the formal recorded

                                            24
      statement after midnight, and (4) Miranda warnings were again given and
      waived prior to the second statement, which was recorded.

      Only the first two findings arguably could be considered curative measures, but
neither is supported by the record. As set forth above, Bolton referred to the original
confession numerous times during the recorded interview. Bolton began the video
interrogation by stating, “Tell me what we talked about earlier.” Bolton also stated:
“Earlier you said you were out drinking with a friend. Tell me what happened.” “Earlier
you said the passenger door was open.” “Earlier you said you ran down the street.” The
video interview does not reflect that appellant referred to the unrecorded statement first,
and Bolton did not refrain from referring to the statement. See Carmouche, 10 S.W.3d at
332-33 (concluding trial court’s finding was clearly erroneous when “indisputable”
video evidence contradicted finding).

      In any event, the proper inquiry is whether Bolton refrained from referring to the
earlier statement or whether appellant referred to it first—neither occurred here. When
an officer refers to the first interrogation in the second interrogation, as here, it is
evidence that a continuity exists between the two interrogations. See Martinez, 272
S.W.3d at 625-26. To avoid a Miranda violation in such a circumstance, an officer may
inform the defendant that any prior unMirandized statements made during a previous
interrogation could not be used against him. See id. at 626. Here, Bolton repeatedly
referred to appellant’s previous statement on the video and thus treated that
interrogation as a continuation of the first. See id. at 625-26. On the video, Bolton did
not inform appellant that any unMirandized statements could not be used against him.
Accordingly, the trial court’s finding that Bolton’s reference to the unrecorded
statement was minimal and thus a curative measure is not supported by the record.

      Moreover, it is undisputed that Bolton elicited the original, unrecorded confession
from appellant and then recorded the statement. Thus, the trial court’s finding that


                                            25
different officers conducted the two interviews as a curative measure is not supported by
the record.

       The third finding—that “a substantial amount of time elapsed between the
original interrogation . . . and the formal recorded statement” is not a curative measure.
A curative measure would be a substantial break in time and circumstances between the
unwarned statement and the Miranda warning. See id. at 626. When the presence of
police personnel with the defendant is virtually uninterrupted, there is no substantial
break in time and circumstances between the prewarning statement and the Miranda
warning. See id. at 625. Appellant had been interviewed by Evans and Padilla for an
indeterminate time period before Bolton began his interview. The only evidence of a
break in time of police presence with appellant was Bolton’s testimony that “after
[appellant] confessed,” Bolton “used the restroom and then a few minutes later . . . came
back into the room” and took the recorded statement. That is not evidence that a
substantial amount of time elapsed between the first and the second interrogations.
Thus, the trial court’s finding is not supported by the record.

       The final relevant finding—that Miranda warnings were given and waived prior
to the second statement16—likewise is not a curative measure. In fact, that is the pattern
of an improper “question first, warn later” interrogation technique when the prior
statement was unwarned. See Seibert, 542 U.S. at 604–05. This finding is not relevant.

       No evidence was presented that curative measures were taken in this case. Thus,
we conclude on this record the State did not meet its burden to present evidence that the
officers did not employ a two-step interrogation technique in a deliberate, calculated
way to undermine appellant’s Miranda warnings or that the officers took curative


       16
         We note that the trial court found the warnings were “again” given. For the reasons set forth
above, we conclude the State did not present evidence of when the original warnings were given and
thus whether it was before Bolton elicited the first confession.

                                                 26
measures to alleviate the purported failure to give such warnings before the original
confession was obtained. Accordingly, the trial court’s findings that the officers did not
employ a two-step interrogation technique in a deliberate, calculated way to undermine
appellant’s Miranda warnings and that officers took curative measures are not supported
by the record and are clearly erroneous. The trial court erred in admitting appellant’s
videotaped statement.

      V.     Admission of Statement Harmful
      We must determine whether admitting appellant’s videotaped statement was
harmful error requiring reversal. See Tex. R. App. P. 44.2(a). The admission of
incriminating statements made during a custodial interrogation where no proper
Miranda warnings were given constitutes constitutional error, and this court must
reverse unless we determine beyond a reasonable doubt that the error did not contribute
to appellant’s conviction. See id.; Akins v. State, 202 S.W.3d 879, 891-92 (Tex. App.—
Fort Worth 2006, pet. ref’d.). In analyzing whether the constitutionally erroneous
admission of a defendant’s statement was harmless, we review whether the admission of
appellant’s statement contributed to the jury’s verdict of guilty in this cause, regardless
of whether there is evidence independent of the statement that is otherwise sufficient to
sustain the jury’s verdict of guilt. McCarthy v. State, 65 S.W.3d 47, 55 (Tex. Crim. App.
2001). If there is a reasonable likelihood that the error materially affected the jury’s
deliberations, then the error is not harmless beyond a reasonable doubt. Id.

      A defendant’s statement, especially a statement implicating him in the
commission of the charged offense, is unlike any other evidence that can be admitted
against the defendant. Id. at 55-56. The presence of other overwhelming evidence that
was properly admitted which supports the material fact to which the inadmissible
evidence was directed may be an important factor in the evaluation of harm. Wall v.
State, 184 S.W.3d 730, 746 (Tex. Crim. App. 2006). However, a confession is likely to

                                            27
leave an indelible impact on a jury. McCarthy, 65 S.W.3d at 56.

      If the jury believes that a defendant has admitted the crime, it will
      doubtless be tempted to rest its decision on that evidence alone, without
      careful consideration of the other evidence in the case. Apart, perhaps,
      from a videotape of the crime, one would have difficulty finding evidence
      more damaging to a criminal defendant’s plea of innocence.

Id. (quoting Arizona v. Fulminante, 499 U.S. 279, 313 (1991) (Kennedy, J.,
concurring)).

      Here, appellant confessed to shooting the two complainants execution-style as
they sat in a car and to stealing the complainants’ marijuana and cars. He also confessed
that he threw the gun he used in the commission of the offenses into a bayou. The State
presented evidence that corroborated the confession. A neighbor heard gun shots, left
his house, and saw the two bodies and a man stumbling toward the bayou. A witness
testified that he walked into a house after the shooting. The witness testified that a group
of people, including appellant, was in the house, and the people were celebrating. The
witness testified, “They said that they had shot somebody.” He said “they” showed him
a bag of marijuana. He could not remember who showed him the bag, but he
“guess[ed]” it was appellant. However, he said appellant “was not really the one that
was speaking that much.” He said “they” told him “they” had a gun “that they threw
away.” He also said appellant’s accomplice Martinez did most of the talking.

      Another witness had gone to the house with the first witness to obtain marijuana.
That witness said appellant and Martinez were there with a group of people. Appellant
and Martinez were “jumpy.” The second witness testified that appellant said “[t]hey
killed two people because of a bag of weed.” Appellant also purportedly said that
“[t]hey had [the complainants’] car in their garage.” Defense counsel elicited testimony
from the second witness that in his earlier statement to police, he said Martinez did the
talking, not appellant. No evidence was presented that appellant was the shooter other

                                            28
than appellant’s videotaped confession. Although some evidence of appellant’s guilt
corroborates his confession, we cannot say there is no reasonable likelihood that the
State’s use of appellant’s statement materially affected the jury’s deliberations. See id.

       We sustain appellant’s sole issue. We reverse the judgment of the trial court and
remand for a new trial.17 See Tex. R. App. P. 43.2(d); McCarthy, 65 S.W.3d at 56.




                                            /s/    Martha Hill Jamison
                                                   Justice



Panel consists of Chief Justice Frost and Justices Christopher and Jamison (Frost, C.J.,
dissenting).
Publish — TEX. R. APP. P. 47.2(b).




       17
           A motion to suppress is a specialized objection to the admissibility of evidence. Black v
State, 362 S.W.3d 626, 633 (Tex. Crim. App. 2012). When an appellate court concludes that certain
evidence is inadmissible, this is generally the law of the case. See Howlett v. State, 994 S.W.2d 663,
666 (Tex. Crim. App. 1999) (“[A]n appellate court’s resolution of a question of law in a previous
appeal of the same case will govern the disposition of the same issue when raised in a subsequent
appeal.”). The law of the case doctrine may apply to a motion to suppress. See, e.g., Satterwhite v
State, 858 S.W.2d 412, 430 (Tex. Crim. App. 1993) (applying law of the case because none of the facts
surrounding search had changed); Ware v State, 736 S.W.2d 700, 701 (Tex. Crim. App. 1987)
(applying law of the case when the facts and legal issues were “virtually identical”). However, though
we have concluded that the State did not meet its burden of proof on this record, nothing prevents the
State from offering additional evidence in support of the admissibility of the confession on remand.
See Black, 362 S.W.3d at 633-34; Montalvo v State, 846 S.W. 2d 133, 136 (Tex. App.—Austin 1993,
no pet.).

                                                  29
