                                MEMORANDUM OPINION
                                        No. 04-10-00586-CR

                                       Emmanuel SUAREZ,
                                           Appellant

                                                  v.

                                       The STATE of Texas,
                                             Appellee

                     From the 186th Judicial District Court, Bexar County, Texas
                                  Trial Court No. 2009CR10403A
                           Honorable Maria Teresa Herr, Judge Presiding

Opinion by:      Catherine Stone, Chief Justice

Sitting:         Catherine Stone, Chief Justice
                 Sandee Bryan Marion, Justice
                 Phylis J. Speedlin, Justice

Delivered and Filed: August 10, 2011

AFFIRMED

           Emmanuel Suarez appeals from a judgment sentencing him to life imprisonment for the

murder of Justin Rodriguez. In two issues, Suarez complains the trial court erred by: (1) denying

his motion to suppress his recorded confession; and (2) admitting two crime scene photographs

of the victim during trial. We affirm the trial court’s judgment.
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                                             BACKGROUND

        Gilbert Vargas and his girlfriend, Lauren Orosco, attended a party at Rodriguez’s

apartment, where Vargas got into a physical altercation with several individuals. Vargas was

visibly upset following the altercation and left the party. As he was leaving, Vargas commented

that he would return.

        Vargas spoke to his friend Richard Lopez after he left the party and arranged to meet his

friend at a Jack in the Box restaurant. Richard, who was accompanied by three other individuals,

Vincent Lopez, Felix Perez, and Suarez, arrived at the restaurant together in Richard’s vehicle.

Vargas spoke with the men, 1 and they all decided to go back to Rodriguez’s apartment. Vargas

and his girlfriend drove their vehicle back to the apartment complex, while Richard, Vincent,

Felix, and Suarez followed in Richard’s vehicle.

        Rodriguez and two of his friends, Irael Guerra and Jeff Perez, were standing outside

Rodriguez’s apartment when Vargas and the other men arrived. Vargas opened the passenger

side door of Orosco’s vehicle and began yelling and cursing at Rodriguez. In the meantime,

Richard, Vincent, Felix, and Suarez drove up behind Vargas and Orosco. Suarez pulled out a .44

caliber pistol that Vargas had given to him a little while earlier and began firing multiple rounds

at Rodriguez and his friends. Two of the rounds struck Rodriguez, while another one struck

Guerra. After Suarez finished firing, Vargas and the others fled the scene. Rodriguez, who was

fatally wounded, died at the scene.

        Although the police had Vargas’s information and a description of the vehicle responsible

for the drive-by shooting, they could not locate any of the individuals responsible for

Rodriguez’s death that night. The police eventually located Vargas and Orosco a few days later,


1
 A surveillance camera from the Jack in the Box restaurant recorded the meeting between Vargas and the other
men.

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and Orosco agreed to cooperate with the police. Orosco identified all of the individuals involved

in the shooting, including Suarez, and the police issued a warrant for Suarez’s arrest.

       Suarez showed up at the police station following the issuance of the warrant for his arrest

and asked to speak with detectives about Rodriguez’s death. Officers arrested Suarez due to the

outstanding arrest warrant and placed him in an interview room to speak with a detective.

Detective David Snow then met with Suarez to question him about the shooting.

       The video recording of Suarez’s interview with Detective Snow shows that Suarez was

provided with water and that he was not restrained when he was introduced to the detective. At

the beginning of the interview, Detective Snow told Suarez that he was under arrest and

informed him of his Miranda rights. When Detective Snow asked Suarez whether he understood

his rights, Suarez responded by nodding his head up and down and stating “yes, sir.” Although

Detective Snow asked Suarez whether he understood his rights, the detective did not explicitly

ask Suarez if he was waiving those rights. Detective Snow then proceeded to question Suarez

about his activities on the day of the shooting.

       During the course of the initial forty-five minutes of the interview, Suarez repeatedly

denied having any involvement in Rodriguez’s death. He also refused to acknowledge that he

had met with Vargas, Richard, Vincent, and Felix prior to the shooting. Suarez’s denials caused

Detective Snow to call Suarez a “liar” and remark that Suarez was “making [himself] look like

shit.” Detective Snow then showed Suarez the Jack in the Box surveillance footage showing him

at the restaurant with the other suspects. Suarez, however, still refused to acknowledge that he

was at the Jack in the Box before the shooting. Detective Snow concluded that Suarez was not

going to reveal the truth to him and terminated his discussion with Suarez, stating “Good luck to




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you Emmanuel, okay, I will see you in court.” The video then shows Detective Snow exiting the

interview room.

           Approximately five minutes after Detective Snow exited the interview room, Suarez

called for the detective. When Detective Snow returned to the interview room, Suarez asked the

detective to sit down so that he could tell the detective the truth about the shooting. Suarez then

asked Detective Snow whether the interview was being recorded, stating “because you might

want to record this.” At this point in the video, Suarez began to tell Detective Snow about the

events surrounding the shooting and admitted that he was at the Jack in the Box with the other

men prior to the shooting. Suarez confessed to shooting Rodriguez and told Detective Snow that

he received the murder weapon from Vargas. Although Suarez admitted to shooting Rodriguez,

Suarez claimed he did not intend to harm anyone — just scare them. 2 The video shows that once

Suarez provided Detective Snow with his confession, the detective left the interview room to get

Suarez some more water. When Detective Snow returned to the interview room, he notified

Suarez that their interview was in fact being recorded.

           During the course of his interview with Detective Snow, Suarez appeared calm and, for

the most part, intelligible and responsive.              Suarez did not appear intoxicated or under the

influence of any intoxicants or drugs. Moreover, Suarez never invoked any of his constitutional

or statutory rights before, during, or after giving his statement. Suarez appeared eager to speak

with Detective Snow upon calling the detective back into the interview room, asking the officer

to stop talking so that he could continue telling him about the incident.

           Suarez was charged with murder and moved to suppress his recorded confession,

asserting his statement was inadmissible because he had not expressly waived his rights prior to

giving the statement. The trial court held a hearing on Suarez’s motion to suppress, and it heard
2
    According to Suarez, he had no idea how he hit anyone because he was not aiming the gun when he fired it.

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testimony from Detective Snow at the hearing. The court ultimately concluded that Suarez

voluntarily gave his confession.     The court also found Suarez knowingly and intentionally

waived his rights. Thus, the trial court ruled that Suarez’s recorded statement was admissible

and denied the motion to suppress.

       At the conclusion of his trial, Suarez was convicted by the jury of murder. The jury

assessed a life sentence for Suarez’s crime, and the trial court sentenced him accordingly.

Suarez’s motion for new trial was denied by the trial court and this appeal followed.

                                      MOTION TO SUPPRESS

       In his first issue, Suarez asserts the trial court erred in denying his motion to suppress his

oral statement to Detective Snow. We review a trial court’s ruling on a motion to suppress under

a bifurcated standard of review. St. George v. State, 237 S.W.3d 720, 725 (Tex. Crim. App.

2007). When reviewing a trial court’s ruling on a motion to suppress, we afford almost total

deference to determinations of historical facts, especially when those determinations involve

assessment of witness credibility and demeanor. Masterson v. State, 155 S.W.3d 167, 170 (Tex.

Crim. App. 2005). We give the same deference to determinations of mixed questions of law and

fact if their resolution depends upon witness credibility and demeanor. State v. Ross, 32 S.W.3d

853, 856 (Tex. Crim. App. 2000). However, we review de novo mixed questions of law and fact

that do not depend on an evaluation of credibility and demeanor. Guzman v. State, 955 S.W.2d

85, 89 (Tex. Crim. App. 1997).

       If the trial court makes explicit fact findings, we determine whether the evidence, when

viewed in the light most favorable to the trial court’s ruling, supports those fact findings. State v.

Kelly, 204 S.W.3d 808, 818 (Tex. Crim. App. 2006). If the trial court has not made a finding on

a relevant fact, we imply the finding that supports the trial court’s ruling so long as there is some



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support in the record. Id. at 818-19; see Moran v. State, 213 S.W.3d 917, 922 (Tex. Crim. App.

2007). We will uphold a trial court’s ruling if it is reasonably supported by the record and is

correct under any theory of law applicable to the case. St. George, 237 S.W.3d at 725.

       For a statement that stems from a custodial interrogation to be admissible, the accused

must knowingly, intelligently, and voluntarily waive his rights. Joseph v. State, 309 S.W.3d 20,

24 (Tex. Crim. App. 2010). A waiver need not assume a particular form and may be inferred

from the actions and words of the accused. Id. The State bears the burden of proving a valid

waiver by a preponderance of the evidence. Id.

       In evaluating whether a waiver is knowingly, intelligently, and voluntarily made, a court

must determine whether: (1) the relinquishment of the right was voluntary by determining

whether it was the product of a free and deliberate choice rather than intimidation, coercion, or

deception; and (2) the waiver was made with full awareness of the nature of the rights being

abandoned and the consequences of the decision to abandon it. Id. at 25. “Only if the ‘totality of

the circumstances surrounding the interrogation’ reveals both an uncoerced choice and the

requisite level of comprehension may a court properly conclude that the Miranda rights have

been waived.” Id. (quoting Moran v. Burbine, 475 U.S. 412, 421 (1986)). In reviewing the

totality of the circumstances, we may consider the defendant’s experience, background, and

conduct. Id.

       Here, the totality of the circumstances surrounding Suarez’s interview with Detective

Snow show that Suarez knowingly, intelligently, and voluntarily waived his rights. Detective

Snow orally advised Suarez of his Miranda rights, which informed Suarez that he had the right

to remain silent, to not make a statement to anyone, and to have an attorney appointed to




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represent him. When asked if he understood his rights, Suarez responded affirmatively and

began to speak with Detective Snow.

       Suarez did not request an attorney or ask to terminate his interview at any time. In

addition, the record does not show any evidence of intimidation or coercion by Detective Snow.

Although the videotape of Suarez’s interview demonstrates Detective Snow called Suarez a

“liar” and told him that he was “making [himself] look like shit,” such interrogation techniques

are not the type of “brutal ‘third-degree’ techniques” that would render Suarez’s statement

involuntary. See Estrada v. State, 313 S.W.3d 274, 297 (Tex. Crim. App. 2010) (concluding

appellant’s statement was voluntary despite interrogation techniques of repeated accusations of

criminal conduct and assertions that appellant was lying).

       The record shows that Suarez called Detective Snow back into the interview room on his

own accord to speak “about the truth” shortly after the detective ended their discussion and

walked away. Suarez was quite eager to discuss the events surrounding the shooting at this

juncture, and he made sure to advise Detective Snow to record his statement.             Suarez

immediately began providing a detailed account of the events surrounding the shooting and, at

one point, even asked Detective Snow not to interrupt him so that he could finish his story.

Suarez’s conduct confirms that he knowingly, intelligently, and voluntarily waived his rights.

We therefore conclude the trial court did not err by denying Suarez’s motion to suppress and

overrule Suarez’s first issue on appeal.

                                  CRIME SCENE PHOTOGRAPHS

       In his second issue, Suarez argues the trial court erred by admitting two crime scene

photographs of Rodriguez’s body. Specifically, Suarez claims this evidence was inadmissible

because it was more prejudicial than probative under Texas Rule of Evidence 403. “We review



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the trial court’s decision to admit or exclude evidence, as well as its decision as to whether the

probative value of evidence was substantially outweighed by the danger of unfair prejudice,

under an abuse of discretion standard.” Martinez v. State, 327 S.W.3d 727, 736 (Tex. Crim.

App. 2010), cert. denied, 2011 WL 1258305, at *1 (U.S. June 6, 2011) (No. 10-9833). A trial

court does not abuse its discretion unless its determination lies outside the zone of reasonable

disagreement. Id.

       Rule 403 allows for the exclusion of relevant evidence if its probative value is

substantially outweighed by the danger of unfair prejudice. TEX. R. EVID. 403. “Rule 403 favors

the admission of relevant evidence and carries a presumption that relevant evidence will be more

probative than prejudicial.” Threadgill v. State, 146 S.W.3d 654, 671 (Tex. Crim. App. 2004).

“[A] proper Rule 403 analysis by either the trial court or a reviewing court includes, but is not

limited to, the following factors: (1) the probative value of the evidence; (2) the potential to

impress the jury in some irrational, yet indelible, way; (3) the time needed to develop the

evidence; and (4) the proponent’s need for the evidence.” Erazo v. State, 144 S.W.3d 487, 489

(Tex. Crim. App. 2004). In a Rule 403 analysis involving photographs, the following additional

factors are relevant: (1) the number of photographs; (2) their size; (3) whether they are in color

or black and white; (4) whether they are gruesome; (5) whether a body is clothed or naked; and

(6) whether the body has been altered by an autopsy. Id.

       Here, during the testimony of paramedic Richard Vega concerning the nature of the

victim’s injuries, the trial court permitted the State to introduce two photographs of Rodriguez’s

shirtless body after he was pronounced dead by medical personnel. The photographs are color

photographs and approximately five by seven inches in size. State’s Exhibit 21 is a photograph

of Rodriguez’s torso lying amidst bloody towels and several medical items. It further shows the



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bloody wound Rodriguez sustained to his rib area.        State’s Exhibit 22 is a photograph of

Rodriguez rolled onto his side and shows a bloody wound to his back. The two photographs are

gruesome in the sense that they show blood and open wounds, but they are not especially

repugnant for a murder case. Vega testified that the two photographs fairly and accurately depict

Rodriguez’s wounds.

       Suarez essentially complains that the trial court should have excluded Exhibits 21 and 22

because they are gruesome and the issue of the cause of the victim’s death was presented by

other evidence. Contrary to Suarez’s argument, however, we believe the trial court acted within

its discretion when it admitted Exhibits 21 and 22 into evidence. The exhibits in question helped

the State illustrate Vega’s testimony by depicting both the crime scene and the victim’s injuries.

The photographs were thus probative and necessary for the State in developing its case. See

Shuffield v. State, 189 S.W.3d 782, 787–88 (Tex. Crim. App. 2006) (concluding photographs

were probative as they depicted both the crime scene and the victim’s injuries); Chamberlain v.

State, 998 S.W.2d 230, 237 (Tex. Crim. App. 1999) (“Visual evidence accompanying testimony

is most persuasive and often gives the fact finder a point of comparison against which to test the

credibility of a witness and the validity of his conclusions.”).      Although the crime scene

photographs of Rodriguez’s body may appear somewhat graphic or gruesome, they are no more

gruesome that the facts of the offense itself. See Williams v. State, 958 S.W.2d 186, 196 (Tex.

Crim. App. 1997); see also Sonnier v. State, 913 S.W.2d 511, 519 (Tex. Crim. App. 1995) (“But

when the power of the visible evidence emanates from nothing more than what the defendant has

himself done we cannot hold that the trial court has abused its discretion merely because it

admitted the evidence.    A trial court does not err merely because it admits into evidence

photographs which are gruesome.”). The record further shows that the State did not spend a lot



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of time presenting the photographs to the jury. Given these circumstances, we conclude the trial

court did not abuse its discretion in determining that the photographs are more probative than

prejudicial. Suarez’s second issue on appeal is therefore overruled.

                                          CONCLUSION

       Based on the foregoing, the judgment of the trial court is affirmed.



                                                 Catherine Stone, Chief Justice

DO NOT PUBLISH




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