                                                                            ACCEPTED
                                                                        13-15-00089-CR
                                                        THIRTEENTH COURT OF APPEALS
                                                               CORPUS CHRISTI, TEXAS
                                                                   7/10/2015 1:33:38 PM
                                                                 CECILE FOY GSANGER
                                                                                 CLERK

                 No. 13-15-00089-CR

* * * * * * * * * * * * * * * * * * * * * * * *FILED
                                                 * *IN* *
                                        13th COURT OF APPEALS
             IN THE COURT OF APPEALS CORPUS CHRISTI/EDINBURG, TEXAS
               THIRTEENTH DISTRICT 7/10/2015 1:33:38 PM
              CORPUS CHRISTI, TEXAS CECILE FOY GSANGER
                                                Clerk
****************************
                ROBERTO SAVEDRA,
                           APPELLANT

                           V.

            THE STATE OF TEXAS,
                        APPELLEE
****************************
    On Appeal from Cause No. 99-4-6124
      in the 24th Judicial District Court
          of Jackson County, Texas
****************************

                STATE’S REPLY BRIEF

****************************

                            ROBERT E. BELL
                            District Attorney
                            State Bar Card No. 02086200
                            Jackson County Courthouse
                            115 West Main Street
                            Edna, Texas 77957

                            JIM VOLLERS
                            State Bar Card No. 20609000
                            2201 Westover Road
                            Austin, Texas 78703

                            ATTORNEYS FOR THE STATE

                            i
IDENTITY OF PARTIES AND COUNSEL

1.   Robert E. Bell
     Criminal District Attorney, Jackson County
     State Bar Card No. 02086200
     Jackson County Courthouse
     115 West Main Street
     Edna, Texas 77957
     Email: ef_mitchell@yahoo.com

     Jim Vollers
     Attorney at Law
     State Bar Card No. 20609000
     2201 Westover Road
     Austin, Texas 78703
     Email: jimvollers@att.net
     Attorneys for the State

2.   Roberto Savedra
     Appellant

3.   Ralph R. Martinez
     Attorney at Law
     State Bar Card No.13143600
     2900 Woodridge, Suite 202
     Houston, Texas 77087
     Email: ralis994@aol.com
     Attorney for Appellant

4.   Honorable Stephen Williams, District Judge
     24th Judicial District Court, Jackson County Courthouse
     115 West Main Street
     Edna, Texas 77957
     Email: kwilliams@cscd.net
     Trial Judge




                                  ii
                             TABLE OF CONTENTS

                                                                                   PAGE

IDENTITY OF PARTIES AND COUNSEL . . . . . . . . . . . . . . . . .                    ii

TABLE OF CONTENTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . .         iii

INDEX OF AUTHORITIES . . . . . . . . . . . . . . . . . . . . . . . . . . .           v

STATEMENT OF THE CASE . . . . . . . . . . . . . . . . . . . . . . . . . .            2

STATEMENT OF FACTS. . . . . . . . . . . . . . . . . . . . . . . . . . . . .          2

APPELLANT’S ASSIGNMENT OF ERROR NUMBER ONE
     (RESTATED). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .       6

       WHETHER APPELLANT’S STATEMENT TO OFFICER
       PAT BRENNAN AND CONSENTS TO SEARCH AND
       MOVE HIS VEHICLE WERE OBTAINED AS A RESULT
       OF AN ILLEGAL PROLONGED DETENTION

ARGUMENT AND AUTHORITIES . . . . . . . . . . . . . . . . . . . . . .                  6

CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .    14

APPELLANT’S ASSIGNMENT OF ERROR NUMBER TWO
     (RESTATED). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .       15

       WHETHER THE SEARCH OF APPELLANT’S VEHICLE
       WAS ILLEGAL FOR FAILURE OF POLICE TO GIVE
       APPELLANT HIS MIRANDA WARNINGS PRIOR TO
       SECURING APPELLANT’S CONSENTS TO SEARCH
       HIS VEHICLE

ARGUMENT AND AUTHORITIES . . . . . . . . . . . . . . . . . . . . . .                 15



                                           iii
APPELLANT’S ASSIGNMENT OF ERROR NUMBER THREE
     (RESTATED). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .   16

       WHETHER THE CONSENTS GIVEN BY APPELLANT
       TO SEARCH HIS VEHICLE AND MOVE HIS VEHICLE
       TO ANOTHER LOCATION WERE KNOWINGLY AND
       VOLUNTARILY GIVEN

ARGUMENT AND AUTHORITIES . . . . . . . . . . . . . . . . . . . . . .             16

APPELLANT’S ASSIGNMENT OF ERROR NUMBER FOUR
     (RESTATED). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .   17

       WHETHER THE STATEMENTS APPELLANT GAVE TO
       OFFICER PAT BRENNAN WERE INVOLUNTARILY
       OBTAINED IN VIOLATION OF TEXAS CODE OF
       CRIMINAL PROCEDURE ARTICLE 38.21 AND 38.22,
       THE FIRTH AMENDMENT OF THE UNITED STATES
       CONSTITUTION, AND ARTICLE I §10 OF THE
       TEXAS CONSTITUTION

ARGUMENT AND AUTHORITIES . . . . . . . . . . . . . . . . . . . . .               18

CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .   19

CERTIFICATE OF SERVICE . . . . . . . . . . . . . . . . . . . . . . . . .         20

CERTIFICATE OF COMPLIANCE . . . . . . . . . . . . . . . . . . . . . .            21




                                           iv
                            INDEX OF AUTHORITIES


CASES:                                                                                  PAGE

Gillenwaters v. State, 205 S.W.3d 534, 537
      (Tex.Crim.App. 2006) . . . . . . . . . . . . . . . . . . . . . . . . .               7

Juarez v. State, 758 S.W.2d 772, 781, n.5
     (Tex.Crim.App. 1988) . . . . . . . . . . . . . . . . . . . . . . . . .               13

Kothe v. State, 152 S.W.3d (Tex.Crim.App. 2004) . . . . . . . .                           13

Lankston v. State, 827 S.W.2d 907, 909
    (Tex.Crim.App. 1992) . . . . . . . . . . . . . . . . . . . . . . . . .                 8

Layton v. State, 280 S.W.3d 235 (Tex.Crim.App. 2009) . . . .                               7

Neal v. State, 150 S.W.3d 169, 178 (Tex.Crim.App. 2004) . .                                8

Rodriguez v. United States, 135 S.Ct. 1609 . . . . . . 9, 10, 12, 13

Schneckloth v. Bustamonte, 412 U.S. 218 . . . . . . . . . . . .                           13

Zillender v. State, 557 S.W.2d 515, 517
      (Tex.Crim.App. 1977) . . . . . . . . . . . . . . . . . . . . . . . . .               8


TEXAS RULES OF APPELLATE PROCEDURE:

Rule 33.1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .     7

Rule 33.1(a)(1)(A). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .         7


TEXAS RULES OF EVIDENCE:

Rule 103(a)(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .        7
                                              v
                      NO. 13-15-00089-CR

                   IN THE COURT OF APPEALS

                     THIRTEENTH DISTRICT

                    CORPUS CHRISTI, TEXAS

     ****************************

                       ROBERTO SAVEDRA,

                                 APPELLANT

                                 V.

                      THE STATE OF TEXAS,

                                  APPELLEE

     ****************************
         On Appeal from Cause No. 99-4-6124
          in the 24th Judicial District Court
              of Jackson County, Texas
     ****************************

                      STATE’S REPLY BRIEF

     ****************************

TO THE HONORABLE JUSTICES OF THE COURT OF APPEALS:

     COMES NOW, THE STATE OF TEXAS, appellee herein, and

files this, its reply brief herein, and would show unto the Court the

following:


                                 1
                     STATEMENT OF THE CASE

      Appellant was charged by indictment with possession of

marijuana in an amount between five and 50 pounds. On February

17, 2015, appellant waived a jury and was tried before the court

upon his plea of not guilty.     Appellant had filed two motions to

suppress and they were carried along with the trial.             At the

conclusion of the evidence, the court overruled both motions based

upon evidence presented at trial and found appellant guilty of

possession of marijuana and assessed his punishment at six years

confinement in the Texas Department of Criminal Justice.

                       STATEMENT OF FACTS

      This was a trial before the court conducted on February 17,

2015, for an offense committed on February 16, 1999. On that date

Trooper Frank Rios of the Texas Department of Public Safety, while

on routine patrol, observed appellant driving a 1981 Dodge pickup

that was pulling a trailer that did not have a front license plate on the

vehicle, did not have a left outside rearview mirror that was required

when pulling a trailer, and had a defective muffler that sometimes

struck the pavement under the pickup R. (Vol. 2, pp. 10-18). When


                                   2
Trooper Rios made the routine traffic stop, appellant exited the

vehicle at Trooper Rios’ request and produced a Louisiana driver’s

license before he was requested to do so (R. Vol. 2, p. 12). Rios

became suspicious when appellant would not look him in the eye

when he talked to him and appeared to be more nervous than

usually occurred for a routine traffic stop for minor violations (R. Vol.

2, p. 13). Appellant identified the passenger as his wife. Rios asked

appellant and his wife routine questions such as where they were

coming from, where they were going and the purpose of the trip.

Because of appellant’s reactions and the conflict in answers between

appellant and his wife, Rios became increasingly suspicious that the

situation involved more than a routine traffic stop (R. Vol. 2, pp. 16-

17). Rios then requested appellant’s consent to conduct a search of

the vehicle and the trailer. Appellant consented to the search. This

request and consent occurred only about two or three minutes

maybe four after the initial traffic stop was made (R. Vol. 2, p. 35)

and before Rios had concluded such matters as conducting a routine

check of the vehicle license and writing a ticket for the offenses he

observed (R. Vol. 2, pp. 29-34).


                                   3
     When Rios looked under appellant’s vehicle, he noticed two

non-factory welds on the drive shaft yoke and indications that certain

bolts connecting the drive shaft had been disturbed. Rios became

suspicious that the drive shaft which was about four inches wide and

hollow contained contraband, even though when he tapped on it it

sounded hollow, because of his observation that the bolts had been

disturbed but the universal joint had not been replaced. He again

asked appellant’s permission and consent to remove the vehicle to a

garage because he needed further tools to conduct the search (R.

Vol. 2, pp. 17-19). Appellant consented and agreed to follow Rios to

a garage in Ganado.      Once he got there, Rios again asked for

permission to continue the search and appellant granted consent (R.

Vol. 2, pp. 19-20). Rios then drilled an inspection hole into the drive

shaft, hit another pipe, continued to drill and found that it contained

a “green substance that smelled like unburnt marijuana.” Then the

drive shaft was taken apart and found to contain 9.60 pounds of

marijuana (R. Vol. 2, p. 21).

     After the discovery of the marijuana, appellant was interviewed

by Sergeant Pat Brennan and told Sergeant Brennan that he,


                                  4
appellant, actually put the marijuana in the drive shaft (R. Vol. 2, pp.

23-24).    Pat Brennan, who was a sergeant investigator with

Department of Public Safety Narcotics Service, sponsored the

introduction of State’s Exhibit 8 which was a taped interview with

appellant, which was played to the court.        This exhibit included

Brennan’s explanation of appellant’s rights and warnings to appellant

along with his waiver of his right to counsel and his confession (R.

Vol. 2, pp. 46-48).

      The State further proved that appellant skipped bail on this

charge. The bond was forfeited and appellant was later arrested for

a different traffic offense on April 7, 2014 and returned to Jackson

County for trial (R. Vol. 2, pp. 51-56).

      At the conclusion of the evidence, the trial court stated:

      “The motion to suppress statements and the motion to
      suppress evidence are denied and I’ve signed the orders
      to that effect. I do find that there was probable cause for
      the stop, that the Trooper received consent for the
      subsequent searches and as to the statement I find it was
      voluntary and that he had been properly admonished.”
      (R. Vol. 1, p. 59)

      Prior to this ruling by the trial court, appellant had objected to

State’s Exhibit 8 only on the grounds stated in his pretrial motion (R.


                                    5
Vol. 1, p. 47) and in his argument to the court immediately prior to

the ruling which might be construed as objections (R. Vol. 2, pp. 58-

59).



       APPELLANT’S ASSIGNMENT OF ERROR NUMBER ONE
                        (RESTATED)

WHETHER APPELLANT’S STATEMENT TO OFFICER PAT
BRENNAN AND CONSENTS TO SEARCH AND MOVE HIS
VEHICLE WERE OBTAINED AS A RESULT OF AN ILLEGAL
PROLONGED DETENTION.

                  ARGUMENT AND AUTHORITIES

       As set forth in his Assignment of Error Number One, appellant’s

complaint is that appellant’s consents to search and his statement to

Officer Brennan were tainted by “an illegal prolonged detention.”

Examination of this record reveals that this issue was not preserved

for review.

       Appellant filed two motions to suppress in this cause.    One,

titled “Motion to Suppress Statements,” containing five allegations,

none of which mention that his statement was tainted by “an illegal

prolonged detention” resulting from a traffic stop.    In his motion

titled “Motion to Suppress Evidence,” appellant alleged that he was


                                   6
“illegally stopped by officers” and the traffic stop and seizure was

made in violation of the Fourth Amendment of the United States

Constitution.”   Nowhere does it suggest that there was an “illegal

prolonged detention.”

      Rule 33.1 of the Texas Rules of Appellate Procedure specifically

provides that as a prerequisite to presenting a complaint for appellate

review the record must show that “the complaint was made to the

trial court by a timely request, objection, or motion” that stated the

grounds for the ruling that the complainant sought from the trial

court “with sufficient specificity to make the trial court aware of the

complaint, unless the specific grounds were apparent from the

context;” and the trial court ruled on the request, objection or

motion, either expressly or implicitly.

      It was pointed out in Layton v. State, 280 S.W.3d 235

(Tex.Crim.App. 2009), “In order to preserve an issue for appellate

review, a timely and specific objection is required.       TEX.R.APP.

P. 33.1(a)(1)(A); TEX.R. EVID. 103(a)(1); Gillenwaters v. State, 205

S.W.3d 534, 537 (Tex.Crim.App.2006). A specific objection is

necessary to inform the trial judge of the issue and basis of the


                                    7
objection, and to allow the judge a chance to rule on the issue at

hand. Neal v. State, 150 S.W.3d 169, 178 (Tex.Crim.App.2004),

citing Zillender v. State, 557 S.W.2d 515, 517 (Tex.Crim.App.1977).

As   we   stated   in Lankston   v.    State, 827   S.W.2d   907,   909

(Tex.Crim.App.1992), ‘all the 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 he is 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.’”    (280 S.W.3d 239). This record

fails to reveal that appellant voiced any further objection in the bench

trial in this cause that would indicate to the trial judge that his

request for relief was based upon the illegality of a “prolonged

detention.”    He simply did not let the trial judge know what he

wanted and why he thought he was entitled to it clearly enough for

the judge to understand him at the time when the trial court was in a

position to do something about it.         It is therefore respectfully

submitted that this point of error was not preserved for review.

      Even if this Court feels that this issue has been preserved, it is

clearly without merit.


                                   8
        It appears that the manner in which the issue is presented

herein the main issue to be decided is whether or not appellant was

subjected to an improperly prolonged detention after a proper traffic

stop.    Appellant relies rather strongly upon Rodriguez v. United

States, 135 S.Ct. 1609.        The State respectfully submits that

Rodriguez is inapplicable because the court clearly states that the

question presented in that case was “whether the Fourth Amendment

tolerates a dog sniff conducted after completion of a traffic stop.”

(Emphasis added).     In Rodriguez the facts relied upon by the

Supreme Court revealed that a traffic stop was made at 12:06 a.m.

and by 12:27 or 12:28 a.m. the officer had finished explaining the

warning to Rodriguez and had given him back the documents

obtained from him. At that point Rodriguez had all of his documents

back and a copy of the written warning and the officer had gotten all

of the reasons for the stop out of the way. Nevertheless, he did not

consider Rodriguez “free to leave,” although justification for the

traffic stop was out of the way, the officer asked Rodriguez for

permission to walk his dog around the vehicle. Rodriguez said no.

The officer then instructed Rodriguez to turn off the ignition, exit the


                                   9
vehicle and stand in front of the patrol car to wait for a second officer

to arrive. Rodriguez complied and at 12:33 another deputy sheriff

arrived and the dog was lead twice around Rodriguez’s vehicle. The

dog alerted to drugs and a search of the vehicle was conducted. The

Supreme Court then concluded that the police may not “routinely”

extend an otherwise completed traffic stop, absent reasonable

suspicion, in order to conduct the dog sniff. The court went on to

note that the court of appeals did not review the determination of

whether or not the detention of Rodriguez for the dog sniff “was not

independently supported by individualized suspicion” and went on to

hold that “the question whether reasonable suspicion of criminal

activity justified detaining Rodriguez beyond completion of the traffic

infraction investigation, therefore, remains open for Eighth Circuit

consideration on remand.”

      From this, it is perfectly clear that if there is a reasonable

suspicion to suspect that there are other violations, the detention is

justified.   It therefore appears that in the Rodriguez case the

holding of the court that requires that a traffic stop end “when tasks

tied to the traffic infraction are – or reasonably should have been –


                                   10
completed” specifically left the question open as to whether a

reasonable suspicion of criminal activity justified detaining the

completion of the traffic infraction investigation. In the instant case,

the officer who made the traffic stop developed a reasonable

suspicion of criminal activity within a couple of minutes by reason of

the conduct of appellant and the conflicting answers to questions

posed between appellant and his wife.       When appellant gave his

voluntary permission for Rios to search his vehicle, Rios was acting

not only on a reasonable suspicion of criminal activity but also on

voluntary consent by the owner of the vehicle to conduct a search.

Then, upon searching the vehicle, Rios concluded, based upon what

he saw and upon his experience, that there was not only a more

reasonable suspicion of criminal activity but a reasonable belief by

Rios that contraband was contained in the drive shaft of the vehicle.

      Since Officer Rios developed a reasonable suspicion of criminal

activity within two or three minutes after stopping appellant and

immediately asking appellant for permission to conduct a search,

which was voluntarily granted by appellant, there was no “routine”

extension of the traffic stop because Rios was acting both upon his


                                  11
reasonable suspicion and upon appellant’s voluntary grant of

permission for Rios to search the automobile.           Under these

circumstances, appellant is certainly misplacing his reliance upon

Rodriguez, supra. It should be noted that the only evidence that

appellant’s consent to search was voluntary was offered by the State

and certainly support the trial court’s finding that appellant

voluntarily consented to the search. Also, it should be noted that

allegations in this brief by appellant that he was “continuously

interrogated” and “aware his wife was interrogated” and “was

restrained knowing his wife would be arrested” (Brief, p. 15) are

without any support in this record and clearly are simply figments of

appellant’s imagination.   Appellant’s statement in his brief that he

was “not allowed to consult family or counsel” is also without support

in this record.

      Appellant also complains that his consent to the searches was

involuntary because he was given no Miranda warning prior to the

consent.    While there were a number of cases observing that a

Miranda warning is good police procedure, appellant cites none that

says that it is necessary in order to make the consent to search


                                  12
voluntary. As a matter of fact, it has been held that police need not

inform a person of his right to refuse to consent to a search.

Schneckloth v. Bustamonte, 412 U.S. 218; Juarez v. State, 758

S.W.2d 772, 781, n.5 (Tex.Crim.App. 1988).             If there is no

requirement that a person must be warned of his right to refuse to

consent to a search, there certainly is no requirement that a

Miranda warning is necessary in order to make a consent to search

voluntary. Appellant’s assertion that there was an illegal prolonged

detention is without merit and his reliance upon Rodriguez simply is

inappropriate.

     Actually this situation is more similar to the situation faced in

Kothe v. State, 152 S.W.3d 54 (Tex.Crim.App. 2004) where the

court was considering the problem of whether an officer’s continued

detention was “reasonable” under the circumstances. In addressing

the issue the court pointed out that in assessing a legal issue, the

appellate court should give great deference to the trial court’s

findings of historical fact; however, questions involving legal

principles and the application of law to established facts are properly

reviewed de novo. Thus, in deciding whether the officer’s continued


                                  13
detention was “reasonable” under the specific circumstances, the

court would review the trial court's factual findings in the light most

favorable to its ruling, but decide the issue of “reasonableness” as a

question of Fourth Amendment law under Supreme Court precedent,

viewing the totality of the circumstances in the light most favorable

to the trial court's factual findings.     It concluded that the officer’s

decision to return to his vehicle and simply wait a few minutes for the

warrant-check     results   before       releasing   the   defendant   was

“reasonable” as a matter of substantive Fourth Amendment law.

Here the officer was acting reasonably as a matter of substantive

Fourth Amendment law by delaying release of appellant based upon

appellant’s voluntary consent to search the vehicle as well as the

officer’s reasonable suspicion that a criminal act was being

committed by appellant.

                             CONCLUSION

      Since there was no illegal detention, there is simply no

necessity to examine whether or not the consent to search and

voluntariness of his statement were impacted by an illegal detention.




                                     14
      This assignment of error is not supported by the record or the

legal authority relied upon and is without merit.


    APPELLANT’S ASSIGNMENT OF ERROR NUMBER TWO
                     (RESTATED)

WHETHER THE SEARCH OF APPELLANT’S VEHICLE WAS
ILLEGAL FOR FAILURE OF POLICE TO GIVE APPELLANT HIS
MIRANDA WARNINGS PRIOR TO SECURING APPELLANT’S
CONSENTS TO SEARCH HIS VEHICLE.

                  ARGUMENT AND AUTHORITIES

      While appellant complains only of the failure to give Miranda

warnings in his point of error, he argues also that consent by

appellant to search his vehicle was improper because of an extended

investigation after a traffic stop of matters not involved in the traffic

stop. First of all, it is noted that this second contention is not within

the scope of appellant’s assignment of error, and neither of these

contentions are preserved for review because appellant made no

specific objection to these issues in the trial court.

      Since the issue of preservation of these errors and the

substance of appellant’s arguments have been addressed in the

argument and authorities under Appellant’s Assignment of Error

Number One, the State simply adopts its answer to Appellant’s
                                    15
Assignment of Error Number One as its response to the Assignment

of Error Number Two.

     As shown in the previous argument and authorities, Appellant’s

Assignment of Error Number Two is without merit and should be

overruled.


   APPELLANT’S ASSIGNMENT OF ERROR NUMBER THREE
                     (RESTATED)

WHETHER THE CONSENTS GIVEN BY APPELLANT TO SEARCH
HIS VEHICLE AND MOVE HIS VEHICLE TO ANOTHER
LOCATION WERE KNOWINGLY AND VOLUNTARILY GIVEN.

                ARGUMENT AND AUTHORITIES

     Again, it is respectfully submitted that this record does not

contain specific objections, either in his motions to suppress or the

trial to the issues which he argues in this assignment of error. The

argument and authorities offered by the State under Appellant’s

Assignment of Error Number One on this issue are adopted herein as

a response to the allegations contained in Assignment of Error

Number Three.

     If the Court feels that this issue has been preserved for review,

it is respectfully submitted that the trial judge’s finding that “the


                                 16
Trooper received consent for the subsequent searches” (R. Vol. 2, p.

59) carries with it the implicit finding by the trial court that the

consents to search given by appellant were voluntary.        The only

testimony admitted on this issue was offered by the State indicating

that appellant knew and understood what he was doing and

consented to the searches. Appellant offered absolutely no evidence

of any sort that the searches were not voluntary. The evidence in

this cause contains no suggestion whatsoever that the trial judge

abused his discretion in finding that the consents to search were

voluntary.

     It is respectfully suggested that this issue is not properly

preserved for review, and if it had been, the trial court did not abuse

its discretion in overruling any objection on this issue which might

have been made by appellant.


    APPELLANT’S ASSIGNMENT OF ERROR NUMBER FOUR
                     (RESTATED)

WHETHER THE STATEMENTS APPELLANT GAVE TO OFFICER
PAT BRENNAN WERE INVOLUNTARY OBTAINED IN
VIOLATION OF TEXAS CODE OF CRIMINAL PROCEDURE
ARTICLE 38.21 AND 38.22, THE FIFTH AMENDMENT OF THE
UNITED STATES CONSTITUTION, AND ARTICLE I §10 OF THE
TEXAS CONSTITUTION.
                                  17
                    ARGUMENT AND AUTHORITIES

      Since this issue is basically the same as that set forth in

Appellant’s Assignment of Error Number Three, the State simply

adopts the argument and authorities made in Appellant’s Assignment

of Error Number Three in response to these allegations.

      It is respectfully submitted that the question presented by

appellant was not preserved for appellate review, and if it had been

properly preserved it is without merit.

      Appellant’s    primary   argument   is   that   his   “inability   to

comprehend English and the interviewer Pat Brennan’s inability to

speak Spanish” made the interview presumptively involuntary to

support appellant’s contention that this issue was raised. The record

reveals an unsworn statement by his counsel to the court that

appellant “keeps speaking to me in Spanish and says he can’t speak

English” (R. Vol. 2, p. 6), and the unsworn response by appellant

when asked if he could speak English was “Not too much.” (R. Vol.

2, p. 6). The record reveals that both the arresting officer and the

officer who took the statement from appellant testified that appellant

did understand English and understood the Miranda warnings which
                                   18
were given. In addition to this, the trial court had the opportunity to

hear a 15-minute interview in order to judge appellant’s capacity to

understand exactly what was going on. This record is before this

Court and it includes the recording which the State feels shows

appellant’s ability to speak English and his understanding of all that

occurred.    It is respectfully submitted that this evidence certainly

supports the fact that the trial court did not abuse its discretion in

determining that appellant did understand English and that his

confession was voluntary.

      This assignment of error is without merit and should be

overruled.

                             CONCLUSION

      WHEREFORE, PREMISES CONSIDERED, it is respectfully

submitted that the record in this cause reveals that appellant’s

complaints are completely without merit and that the judgment of

the trial court should be in all things affirmed.




                                    19
                                  Respectfully submitted,
                                  Robert E. Bell
                                  District Attorney
                                  State Bar Card No. 02086200
                                  Jackson County Courthouse
                                  115 W. Main Street
                                  Edna, Texas 77957


                                  /s/ Jim Vollers_______________
                                  Jim Vollers
                                  State Bar Card No. 20609000
                                  2201 Westover Road
                                  Austin, Texas 78703

                                  ATTORNEYS FOR THE STATE



                    CERTIFICATE OF SERVICE

      I hereby certify that on this the 10th day of July, 2014, a true
and correct copy of the foregoing was served electronically through
the electronic filing manager on the party listed below:

      Ralph R. Martinez, Attorney at Law, 2900 Woodridge, Suite
202, Houston, Texas 77087, Attorney for Appellant, at
ralis994@aol.com.

     Robert E. Bell, District Attorney, Jackson County Courthouse,
115 West Main Street, Edna, Texas 77957, Attorney for Appellee, at
ef_mitchell@yahoo.com.

       Judge Stephen Williams, District Judge, 24th Judicial District
Court, 115 West Main Street, Edna, Texas                77957, at
kwilliams@cscd.net.



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       If the email of the party or attorney to be served was not on
file with the electronic filing manager, the pleading was served by
email.


                                  /s/ Jim Vollers
                                  Jim Vollers



                CERTIFICATE OF COMPLIANCE

     I certify that this document contains 5,106 words (counting all
parts of the document).


                                  /s/ Jim Vollers________________
                                  Jim Vollers
                                  2201 Westover Rd.
                                  Austin, Texas 78703
                                  (512) 478-6846
                                  SBN 20609000
                                  JimVollers@att.net
                                  COUNSEL OF RECORD




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