                                                                                                            ACCEPTED
                                                                                                       13-14-00123-CR
                                                                                       THIRTEENTH COURT OF APPEALS
                                                                                              CORPUS CHRISTI, TEXAS
                                                                                                 10/14/2015 9:34:29 AM
                                                                                                      Dorian E. Ramirez
                                                                                                                 CLERK

                                 Cause No. 13-14-00123-CR

                       IN THE COURT OF APPEALS       FILED IN
                                              13th COURT OF APPEALS
            FOR THE THIRTEENTH SUPREME JUDICIAL     DISTRICT
                                           CORPUS CHRISTI/EDINBURG, TEXAS
                 AT CORPUS CHRISTI-EDINBURG,10/14/2015
                                               TEXAS 9:34:29 AM
                                                                      DORIAN E. RAMIREZ
                                                                           Clerk
----------------------------------------------------------------------------------------------------
                                     RAUL LARA, APPELLANT
                                                 v.
                           THE STATE OF TEXAS, APPELLEE
----------------------------------------------------------------------------------------------------

              APPEAL OF TRIAL COURT CAUSE NO. CR-4394-12-E
                          FROM THE 275TH DISTRICT COURT
                               HIDALGO COUNTY, TEXAS
                           The Honorable Juan Partida, Presiding
----------------------------------------------------------------------------------------------------

       SUPPLEMENTAL BRIEF OF THE STATE OF TEXAS/APPELLEE

----------------------------------------------------------------------------------------------------
                             Ricardo Rodriguez, Jr.
                             Criminal District Attorney
                             Hidalgo County, Texas

                             Glenn W. Devino
                             State Bar No. 24012525
                             Lead Counsel for Appellee

                             Office of the Criminal District Attorney
                             100 N. Closner Blvd.
                             Edinburg TX 78539
                             Telephone 956-318-2300
                             Facsimile 956-380-0407
                             glenn.devino@da.co.hidalgo.state.tx

                             FOR THE STATE OF TEXAS, APPELLEE
         NOTE AS TO PURPOSE OF THIS SUPPLEMENTARY BRIEF

The purpose of this Supplemental Brief is to address the additional arguments of

Appellant set forth in his Amended Brief that are not within his initial Brief. This

Brief is supplemental to, and not in lieu of, the initial Brief of the State of Texas,

Appellee.




                                          2
                    IDENTIFICATION OF PARTIES AND COUNSEL
   Appellee certifies that the following is a complete list of the parties, attorneys, and
   all other interested persons regarding this matter:

1.) The Appellant is:
   Raul Lara

2.) Appellant was represented in the trial court by:
   Judith Pena-Morales, Esq.        120 S. 12th Ave., Edinburg TX 78539
   E. Omar Maldonado, Esq. 1        100 N. Closner, Edinburg TX 78539
   O. Rene Flores, Esq.             1308 S. 10th St., Edinburg TX 78539

3.) Appellant is represented on appeal by:
   Rolando Garza, Esq.              310 W. University Dr., Edinburg TX 78539

4.) The Appellee is:
   The State of Texas
   by and through Ricardo Rodriguez, Jr., Hidalgo County Criminal District Attorney

5.) Appellee was represented in the trial court by:
   Rene Guerra, Criminal District Attorney in and for Hidalgo County, Texas2
   100 N. Closner, 3rd floor, Edinburg TX 78539
   by his Assistant Criminal District Attorneys Linda Castillo, Roberto ‘Bobby’ Lopez,
Jr. and Ashley Reeve

6.) Appellee is represented on appeal by:
   Ricardo Rodriguez, Jr., Criminal District Attorney in and for Hidalgo County, Texas
   100 N. Closner, 3rd floor, Edinburg TX 78539
   by his Assistant Criminal District Attorney Glenn W. Devino


   1
     E. Omar Maldonado, Esq., now sits as Judge Presiding, County Court at Law 8, Hidalgo
   County, Texas; his motion to be permitted to withdraw as counsel for Appellant was granted by
   written order before trial on the merits or any proceedings pertinent to this appeal. O. Rene
   Flores, Esq. was granted leave to substitute for E. Omar Maldonado as co-counsel with Ms.
   Morales, who represented Appellant throughout the course of proceedings in the trial court.
   CR169, CR171, CR249.
   2
    The term of office of Rene Guerra as Criminal District Attorney in and for Hidalgo County,
   Texas, ended after trial of this cause was concluded but during the pendency of this appeal.
                                                3
                      NOTES AS TO THE FORM OF CITATION


         A.) Citation to the Clerk’s Record will be to page number, e.g. CR 47
refers to Page 47 of the Clerk’s Record. Citation to a Supplemental Clerk’s Record
will be to volume and page number, e.g. 1SCR5 refers to Page 5 of Supplemental
Clerk’s Record, volume 1.
         B.) Citation to testimony in the Reporter’s Record will be to volume and
page number, e.g. 3RR56 refer to page 56 of volume 3 of the Reporter’s Record.
         Note: The numbering of the various volumes of the Reporter’s Record is in
some respects improper:
         a.) A reference to 17RR herein is a reference to the transcript
             memorializing proceedings conducted December 6, 2013; a reference
             to 1Supp. RR herein is a reference to the transcript memorializing
             proceedings conducted December 9, 2013.3
         b.) A reference to 25RR herein is a reference to the transcript
             memorializing proceedings conducted December 18, 2013, although
             the copy of the transcript memorializing these proceedings, as provided
             by the District Clerk of Hidalgo County, is labeled ‘volume 26 of 29’.
         c.) A reference to 26RR herein is a reference to the transcript
             memorializing proceedings conducted December 19, 2013.
         d.) A reference to Supp. RR1, followed by an exhibit number, is a reference
             to the Supplemental Reporters Record containing exhibits admitted in
             suppression hearing.


3
  Both of these referenced volumes are numbered ‘7 of 29’; staff of the Court has advised that the
latter volume will be and is redesignated so as to avoid confusion.

                                                4
                     TABLE OF CONTENTS
Title Page…………………………………………………………………………...1

Note as to the Purpose of this Supplemental Brief…………………………………2

Identification of Parties and Counsel …...………………………………………….3

Note as to the Form of Citation……………………………………..……………...4

Table of Contents…………………………………………………………………...5

Index of Authorities………………………………………………………………...6

Statement of the Case………………………………………………………………7

Issue Presented……………………………………………………………………..8

Statement of Facts……………………………………………………………….....9

Summary of Arguments……………………………………………………….......10

Note as to Oral Argument………………………………………………………....11

Arguments and Authorities………………………………………………………..12

Conclusion………………………………………………………………………...16

Prayer……………………………………………………………………………...16

Certificate of Compliance…………………………………………………………17

Certificate of Service……………………………………………………………...17




                               5
                          INDEX OF AUTHORITIES
Cases

Bible v. State, 162 S.W.3d 234 (Tex. Crim. App. 2005)……………………...13fn7

Castellan v. State, 54 S.W.3d 469 (Tex. App.—Corpus Christi 2001, no pet.)…..15

Garcia v. State, 919 S.W.2d 370 (Tex. Crim. App. 1996, cert. denied)(op. on

           rehearing)…………………………………………………………………13

Hernandez v. State, 421 S.W.3d 712 (Tex. App.—Amarillo 2014, pet. ref’d)..15-16

Missouri v. Siebert, 542 U.S. 600 (U.S. 2003)……………………………......12-13

Sosa v. State, 769 S.W.2d 909, 916 (Tex. Crim. App. 1989, cert. denied)……….14



Statutes

Tex. Code Crim. P. Art. 38.22…………………………………………………….12



Rules

Tex. R. App. P. 9.4…………………………………………………………….11fn5

Tex. R. App. P. 38.1…………………………………………………………...11fn5

Tex. R. App. P. 39.7…………………………………………………………...11fn5




                                        6
                           STATEMENT OF THE CASE

Appellee, the State of Texas, does not set forth herein a Statement of the Case, but

rather rests on the procedural history set forth in the initial Brief of Appellee.




                                           7
                                ISSUE PRESENTED

Issue:

Appellant is not entitled to reversal on his claim of error in the admission of

written custodial statements.




                                       8
                              STATEMENT OF FACTS

Appellee, the State of Texas, does not set forth herein a Statement of Facts, but

rather rests on the recitation of facts established by evidence as set forth in the

original Brief of Appellee.




                                        9
                          SUMMARY OF ARGUMENTS4

The trial court did not err in admitting the written custodial statements of

Appellant. Proper waivers are set forth on the face of each statement. The said

waivers are adequate in that the phrasing thereof substantially complied with the

specific provisions of the governing statute. Appellant was properly and timely

advised as to his rights before the execution of both statements. The circumstances

of the instant case do not present a ‘question now/warn later’ interrogation

scenario. The techniques employed by investigators in interviewing Appellant

were not coercive in nature so as to render his statements involuntary.




4
  This Summary is supplemental to, and not in lieu of, the Summary of Arguments within the
initial Brief of Appellee.

                                           10
                              NOTE AS TO ORAL ARGUMENT


Appellant does not request oral argument.5



The State of Texas respectfully submits that oral argument in the case at bar would

not serve to enlighten the Court further or illuminate the issues in that, because the

facts and legal arguments are adequately presented in the briefs and record, the

decisional process of the Court would not be significantly aided by oral argument.



The State of Texas reserves the right to present oral argument should the Court sua

sponte order oral argument.




5
  Appellee recited in its initial Brief that Appellant requested oral argument. This recitation was
incorrect. Appellant did not, in either his initial Brief nor in his Amended Brief, reflect on the
cover thereof a request for oral argument. Tex. R. App. P. 9.4(g); Tex. R. App. P. 39.7. Neither
Appellant’s initial Brief nor his amended Brief contains a ‘statement regarding oral argument’ as
permitted by Tex. R. App. P. 38.1(e).
                                                11
                           ARGUMENTS AND AUTHORITIES


Issue: Appellant is not entitled to reversal on his claim of error in the admission

of written custodial statements.6



Appellant contends that both of his custodial written statements should have been

suppressed for alleged lack of compliance with the governing statute, which

provides in pertinent part that the face of the statement must show that Miranda

warnings were issued before making the statement and that the accused, prior to

and during the making of the statement, knowingly, intelligently, and voluntarily

waived these rights. Tex. Code Crim. P. Art. 38.22 sec. 2.



One line of argument advanced by Appellant is grounded on the undisputed

testimony that the statements, which contains all the requisite cautions and

acknowledgements on their face, were not produced in written form until the

conclusion of the interviews rather than before questioning commenced. 17RR24-

25, 53-54. Appellant’s argument is flawed. Neither interview of Appellant was a

‘question first/warn later’ interrogation of the sort condemned by the Supreme

Court. In Missouri v. Siebert, 542 U.S. 600, 124 S. Ct. 2601, 159 L.Ed.2d 643


6
  The arguments advanced herein are supplemental to, and not in lieu of, those advanced in the
initial Brief of Appellee.
                                             12
(U.S. 2003), the interviewing officer made a “’[c]onscious decision’ to withhold

Miranda warnings [at the initial contact with and questioning of the suspect], thus

resorting to an interrogation technique he had been taught: question first, then give

the warnings, and then repeat the question ‘until I get the answer that she’s already

provided once.’” Id. at 605. Here, in contrast, Appellant was advised as to his

rights at the outset of both interviews. 17RR13, 40-41.7 The waivers on the face of

the written statements, which concededly were actually printed at the conclusion of

each interview rather than at commencement, merely memorialized in writing the

issuance of warnings that had properly and timely occurred.



Appellant’s reliance on Garcia v. State, 919 S.W.2d 370 (Tex. Crim. App. 1996,

cert. denied)(op. on rehearing) is likewise misplaced. The statement form at issue

in Garcia lacked an express waiver of any nature; rather, the form included only a

recitation that the facts therein were true and that the accused had made no request

for counsel or demand for cessation of the interview. Garcia, 919 S.W.2d at 384-

385. Even then, the Court of Criminal Appeals ultimately upheld the trial court’s

denial of the defendant’s suppression motion. Id. at 387. In the matter at bar, an




7
  The second interviewing officer reissued the required warnings despite this officer’s awareness
that Appellant had already been advised of his rights before the substance of the first interview.
17RR38. Reissuance of the Miranda warnings was not in any event required. See, Bible v. State,
162 S.W.3d 234 (Tex. Crim. App. 2005).
                                               13
explicit waiver does in fact appear on the face of both statements and above the

factual substance of the statements. 28RR State’s Exhibits 84, 86.



Substantial compliance with the provisions of Tex. Code Crim. P. Art. 38.22 sec.

2(b) in terms of the wording of a waiver is sufficient. See, Sosa v. State, 769

S.W.2d 909, 916 (Tex. Crim. App. 1989, cert. denied)(“[a] warning which is only

slightly different from the language of the statute but which conveys the exact

meaning of the statute is sufficient to comply with the statute.”). The waiver

provision on each statement at issue reads as follows:

      I have read this statement of my rights (this statement of my rights
      had been read to me) and I understand what my rights are. I am
      willing to discuss subjects presented and answer questions. I do not
      want a lawyer at this time. I understand and know what I am doing.
      No promises or threats have been made to me and no pressure or
      coercion of any kind has been used against me.
      28RR State’s Exhibits 84, 86.
These waivers are substantively identical to that deemed adequate in Sosa, 769

S.W.2d 914. Moreover, this Court, in considering a waiver with somewhat

different phrasing, likewise held that waiver to be proper:

      Although appellant's waiver did not list the words "knowingly,"
      "intelligently," or "voluntarily," it is clear that these requirements
      were met, adhering to the legislative intent of section 2(b). Thus, the


                                         14
      statement was valid, and the trial court was within its discretion to
      deny appellant's motion to suppress.
      Castellan v. State, 54 S.W.3d 469, 480 (Tex. App.—Corpus Christi

      2001, no pet.).

The waivers subject of Appellant’s complaint were in substantial compliance with

the governing statute and thus both were adequate and proper.



Appellant contends that the testimony as to interview techniques employed,

involving advising Appellant that investigators had already gained information

from other sources implicating Appellant and that Appellant would thus likely ‘go

down’ for the offense, rendered his statements involuntary. The Amarillo Court of

Appeals has recently considered and rejected such claims:

      Early in his questioning, Smith confronted appellant with autopsy
      results showing Espinosa did not die from alcohol or drugs. Smith
      pressed appellant to "get past" the "I'm going to cover for [Kenneth],
      he's going to cover for [me]" posture, and made vague references to
      other evidence recently discovered that "brought us back to you."
      Hernandez v. State, 421 S.W.3d 712, 719 (Tex. App.—Amarillo
      2014, pet. ref’d)



The Hernandez court explained its reasoning for rejecting Appellant’s claims:

      The law permits police some use of psychological tactics to obtain
      the statement of a suspect. Henderson v. Hendricks, 02-4338 (MLC),
                                        15
      2005 U.S. Dist. Lexis 32897 at *31 (D.N.J. Dec. 13, 2005) (not
      designated for publication); Miller v. Fenton, 796 F.2d 598, 605 (3d
      Cir. 1986). Thus, for example, an interviewer may play on the
      suspect's sympathies or explain that honesty may be the best policy
      for a suspect hoping for leniency. Miller, 796 F.2d at 605; Rachlin v.
      United States, 723 F.2d 1373, 1378 (8th Cir. 1983) (although agents
      told suspect it was in his best interest to cooperate, resulting
      confession was voluntary); United States v. Vera, 701 F.2d 1349,
      1363-64 (11th Cir. 1983)(same). "These ploys may play a part in the
      suspect's decision to confess, but so long as that decision is a product
      of the suspect's own balancing of competing considerations, the
      confession is voluntary." Miller, 796 F.2d at 605.
      Id. at 717-718
None of the approaches employed by either investigator regarding the statements at

issue were coercive in nature so as to render the confessions involuntary.



                                    CONCLUSION

Appellee respectfully submits, for the reasons set forth herein and as further set

forth in its initial Brief, the Judgment of the trial court should in all respects be

affirmed.

                                     PRAYER

Wherefore, premises considered, the State of Texas prays the Court affirm the

Judgment of the trial court.


                                         16
                                 Respectfully submitted,

                                 ______/s/ Glenn W. Devino_____________
                                 Glenn W. Devino
                                 Assistant Criminal District Attorney
                                 Hidalgo County, Texas
                                 100 N. Closner, 4th floor
                                 Edinburg TX 78539
                                 Telephone 956-318-2300
                                 Facsimile 956-380-0407
                                 State bar no. 24012525

Certificate of Compliance
I hereby certify that this Brief, including footnotes but excluding those parts listed
in Rule 9.4(i)(1), Tex. R. App. P., contains 2,500 words

                                 ______/s/ Glenn W. Devino_____________
                                 Glenn W. Devino
                                 Assistant Criminal District Attorney
                                 Hidalgo County, Texas
                                 100 N. Closner, 4th floor
                                 Edinburg TX 78539
                                 Telephone 956-318-2300
                                 Facsimile 956-380-0407
                                 State bar no. 24012525
Certificate of Service
I hereby certify that I have sent a true copy of the foregoing Brief of Appellee to
Appellant, Raul Lara by serving Appellant therewith through the electronic filing
manager to his attorney, Rolando Garza, on this the 14th day of October, 2015.
                                 _____/s/______Glenn W. Devino
                                 Glenn W. Devino
                                 Assistant Criminal District Attorney
                                 Hidalgo County, Texas
                                 100 N. Closner, 4th floor
                                 Edinburg TX 78539
                                 Telephone 956-318-2300
                                 Facsimile 956-380-0407
                                 glenn.devino@da.co.hidalgo.tx.us
                                 State bar no. 24012525

                                         17
