                                                                               PD-0078-15
                  PD-0078-15                                  COURT OF CRIMINAL APPEALS
                                                                              AUSTIN, TEXAS
                                                            Transmitted 6/26/2015 12:21:22 PM
                                                               Accepted 6/29/2015 3:05:52 PM
                                                                               ABEL ACOSTA
                                                                                       CLERK
                          NO. PD-15-0078
               IN THE COURT OF CRIMINAL APPEALS


                        JOSE JESUS VASQUEZ
                              Appellant
                                  v.
                       THE STATE OF TEXAS
                             Appellee

                        No. 14-12-00096-CR
     In the Court of Appeals for the Fourteenth District of Texas

                             No. 1333231
         In the 228th District Court of Harris County, Texas


         APPELLANT’S BRIEF ON DISCRETIONARY REVIEW




ORAL ARGUMENT PERMITTED                     ALEXANDER BUNIN
                                            Public Defender
                                            Harris County, Texas
                                            MARK KRATOVIL
                                            Assistant Public Defender
                                            Texas Bar Number 24076098
                                            1201 Franklin Street, 13th Floor
                                            Houston, Texas 77002
       June 29, 2015                        Telephone: (713) 274-6728
                                            Facsimile: (713) 437-4339
                                            mark.kratovil@pdo.hctx.net
                                            Counsel for Appellant
                IDENTITY OF PARTIES AND COUNSEL
APPELLANT                              Jose Jesus Vasquez
                                       TDCJ # 01767401
                                       Telford Unit
                                       3899 State Highway 98
                                       New Boston, Texas 75570
DEFENSE COUNSEL AT TRIAL               James Stafford
                                       515 Caroline Street
                                       Houston, Texas 77002
                                       Marcy E. Kurtz
                                       711 Louisiana Street, Suite 2300
                                       Houston, Texas 77002
DEFENSE COUNSEL ON APPEAL              Alex Bunin
                                       Chief Public Defender
                                       Harris County, Texas
                                       Mark Kratovil
                                       Assistant Public Defender
                                       1201 Franklin Street, 13th Floor
                                       Houston, Texas 77002
STATE COUNSEL AT TRIAL                 Devon Anderson
                                       District Attorney
                                       Harris County, Texas
                                       Eric Devlin
                                       Assistant District Attorney
                                       1201 Franklin Street, 6th Floor
                                       Houston, Texas 77002
STATE COUNSEL ON APPEAL                Eric Kugler
                                       Assistant District Attorney
                                       1201 Franklin Street, 6th Floor
                                       Houston, Texas 77002
PRESIDING JUDGE AT TRIAL               The Honorable Marc Carter
                                       228th Judicial District Court
                                       1201 Franklin Street, 16th Floor
                                       Houston, Texas 77002




                               ii
                                                  TABLE OF CONTENTS

IDENTITY OF PARTIES AND COUNSEL .................................................................................. ii
TABLE OF CONTENTS ............................................................................................................ iii
INDEX OF AUTHORITIES ...................................................................................................... vii
STATEMENT OF THE CASE ..................................................................................................... 1
ISSUES PRESENTED ................................................................................................................. 3
STATEMENT OF FACTS............................................................................................................ 3
SUMMARY OF THE ARGUMENT .............................................................................................. 6
ARGUMENT .............................................................................................................................. 8
   RESPONSE TO THE STATE'S FIRST ISSUE: The Appellant’s pre-trial
   motions alleging that Miranda warnings were withheld, along with the
   subject matter explored at the hearing on the motion to suppress and
   defense counsel’s oral objection complaining of a “two-step interview,”
   preserved the Seibert issue for appellate review... ............................................................ 8
     A. Plain English Will Suffice To Preserve Error........................................................ 10

     B. This Court Has Previously Held a Seibert Complaint Is Preserved For Appellate
        Review When a Motion To Suppress Raises the Issue of Voluntariness And a
        Hearing Is Held On the Motion ............................................................................. 10

               a. The motion to suppress filed in Hunt v. State, which was held sufficient
                  to preserve error, contains language almost identical to those filed in the
                  present case .................................................................................................... 11

               b. In holding that error was not preserve, this Court previously advised in
                  Batiste v. State that language similar to what defense counsel said at the
                  motion to suppress hearing would preserve error for appellate review of
                  a Seibert claim .................................................................................................. 13

               c. The civil case law relied on by the State is not applicable to the present
                  case and is factually distinguishable............................................................. 15




                                                                   iii
  C. The State Bears the Burden Of Establishing the Admissibility Of the Appel-
     lant's Statement and Compliance With Miranda After the Appellant Carried His
     Burden Of Showing the Statement Was the Product of Custodial Interrogation
     ..................................................................................................................................... 16

  D. Defense Counsel's Pre-Trial Motions and Oral Objection Were Sufficient To
     Put the Trial Court And the State On Notice As To the Nature of the Com-
     plaint ........................................................................................................................... 19

             a. The trial court's ruling makes sense in the context of a Seibert objection
                made during an Article 38.22 hearing in light of the pre-trial motions to
                suppress .......................................................................................................... 20

                      i.     The trial court's ruling indicated that defense counsel's Seibert ob-
                             jection was overruled and that the unrecorded oral statements
                             would be suppressed, the latter of which is part of what the Ap-
                             pellant sought in his second motion to suppress ........................... 21

                     ii.     Because Seibert deals with a statement's voluntariness, an Article
                             38.22 hearing is the appropriate and only vehicle available to a de-
                             fendant through which a Seibert challenge can be explored and
                             raised .................................................................................................... 22

             b. The State had the option to request that the trial court reopen testimony
                on the motion to suppress, but did not do so ........................................... 24

  E. The Majority Was Correct In Holding That Error Was Preserved .................... 26

RESPONSE TO THE STATE'S SECOND ISSUE: The trial court's written
findings of fact explicitly state that the Appellant was subject to custodial
interrogation prior to receiving and waiving his Miranda warnings on the
recorded statement............................................................................................................ 26
  A. The Appellant Was Under Arrest, Held In the Homicide Office, And Subjected
     To Questioning By Law Enforcement Prior To His Videotaped Statement .... 27

  B. The State Has Not Preserved This Claim For Appellate Review ....................... 28

  C. The Majority Correctly Held That the Appellant Was the Subject of Custodial
     Interrogation .............................................................................................................. 29



                                                                   iv
RESPONSE TO THE STATE'S THIRD ISSUE: The record is devoid of
evidence showing the Appellant received Miranda warnings prior to the
start of the videotaped statement, and the State failed to carry its burden
demonstrating that a two-step interrogation technique was not deliberately
used. .................................................................................................................................... 30
  A. The Trial Court's Findings Are Not Entitled To Deference When They Are
     Not Supported By the Record................................................................................. 31

             a. The trial court's findings did not turn on a credibility determination, as
                there is no evidence in the record to support the finding that the Appel-
                lant received off-camera Miranda warnings ................................................ 32

             b. The trial court made no findings as to Detective Bolton's testimony that
                he learned about the Appellant's unrecorded interview directly from Ser-
                geant Padilla ................................................................................................... 34

  B. The Burden To Show a Two-Step Interrogation Was Not Deliberately Em-
     ployed Falls On the State, And the State Failed To Carry Its Burden ............... 35

  C. The Majority Was Correct In Holding the State Failed To Carry Its Burden On
     Both the Issues Of the Appellant's Receipt of Unrecorded Miranda Warnings
     And That a Two-Step Interrogation Technique Was Not Deliberately Used .. 38

RESPONSE TO THE STATE'S FOURTH ISSUE: The erroneous admission
of the recorded statement contributed to the Appellant's conviction, as
the recorded statement was the primary piece of evidence identifying the
Appellant as the shooter of the complaiant, as opposed to the co-
defendant, and was the only piece of evidence the jury asked to review
during deliberations.. ........................................................................................................ 39
  A. A Violation Of Seibert Is Constitutional Error And the Harm Analysis Under
     Rule 44.2(a) Is Applied ............................................................................................. 39

  B. The Appellant's Statement Was the Primary Piece Of Evidence Identifying
     Him As the Shooter .................................................................................................. 41

  C. The Appellant's Statement Was Viewed By the Jury On Multiple Occasions
     And Was the Only Piece Of Evidence the Jury Asked To Review .................... 42




                                                                   v
                a. The recorded statement was emphasized by the State during closing ar-
                   guments........................................................................................................... 42

                b. The jury asked to view the statement during deliberations ...................... 43

                c. The defensive theory that the Appellant acted in self-defense or was
                   guilty only of the lesser-included offense of murder was undermined by
                   the recording .................................................................................................. 44

     D. The Majority Correctly Held That the Appellant's Recorded Statement Likely
        Affected the Jury's Deliberations ............................................................................ 44

PRAYER .................................................................................................................................. 46
CERTIFICATE OF SERVICE .................................................................................................... 47
CERTIFICATE OF COMPLIANCE ........................................................................................... 48




                                                                    vi
                                               INDEX OF AUTHORITIES

Federal Cases

Anderson v. Bessemer City, 470 U.S. 564 (1985) .................................................................... 33

Miranda v. Arizona, 384 U.S. 436 (1966) ....................................................................... passim

Missouri v. Seibert, 542 U.S. 600 (2003) .......................................................................... passim

State Cases

Amador v. State, 275 S.W.3d 872 (Tex. Crim. App. 2008) ................................................ 32

Batiste v. State, No. AP-76,600, 2013 WL 2424134 (Tex. Crim. App. June 5, 2013) (not

   designated for publication) ........................................................................................ 13, 14

Bekendam v. State, 441 S.W.3d 295 (Tex. Crim. App. 2014) ....................................... 23, 24

Black v. State, 362 S.W.3d 626 (Tex. Crim. App. 2012) .............................................. 24, 25

Carmouche v. State, 10 S.W.3d 323 (Tex. Crim. App. 2000) ........................................ 33, 34

Carrillo v. State, 98 S.W.3d 789 (Tex. App.—Amarillo 2003, pet. ref’d) ......................... 13

Carter v. State, 309 S.W.3d 31 (Tex. Crim. App. 2010) .........................................31, 35, 36

Everitt v. State, 407 S.W.3d 259 (Tex. Crim. App. 2013) .................................................. 10

Ford v. State, 305 S.W.3d 530 (Tex. Crim. App. 2009) ...................................................... 19

Gardner v. State, 306 S.W.3d 274, 293-94 (Tex. Crim. App. 2009), cert. denied, 131

   S.Ct. 103 (2010) ................................................................................................................. 27

Herrera v. State, 241 S.W.3d 520 (Tex. Crim. App. 2007) ................................................. 17




                                                                 vii
Hunt v. State, No. PD-0152-12, 2013 WL 3282973 (Tex. Crim. App. June 26, 2013)

   (not designated for publication) ..........................................................................11, 12, 13

Lankston v. State, 827 S.W.2d 907 (Tex. Crim. App. 1992) ........................................ 10, 19

Jones v. State, 119 S.W.3d 766 (Tex. Crim. App. 2003) ..................................................... 39

Martinez v. State, 272 S.W.3d 615 (Tex. Crim. App. 2008) ...................................16, 17, 18

Miller v. State, 393 S.W.3d 255 (Tex. Crim. App. 2012) .................................................... 31

McCarthy v. State, 65 S.W.3d 47 (Tex. Crim. App. 2001) ......................................39, 40, 44

Oursbourn v. State, 259 S.W.3d 159 (Tex. Crim. App. 2009) ............................................. 24

Phillips v. Bramlett, 288 S.W.3d 876 (Tex. 2009) ................................................................. 15

State v. Mercado, 972 S.W.2d 75 (Tex. Crim. App. 1998) .................................................. 29

State v. Ross, 32 S.W.3d 853 (Tex. Crim. App. 2000) ........................................................ 31

Swain v. State, 181 S.W.3d 359 (Tex. Crim. App. 2005) .................................................... 14

Vasquez v. State, 411 S.W.3d 918 (Tex. Crim. App. 2013) ........................ 2, 12, 23, 24, 26

Vasquez v. State, 397 S.W.3d 850 (Tex. App.—Houston [14th Dist.] 2013, pet. granted)

   ...............................................................................................................................2, 5, 12, 27

Vasquez v. State, 453 S.W.3d 555 (Tex. App.—Houston [14th Dist.] 2015, pet. granted)

   ....................................................................................................................................... passim

Vasquez v. State, 453 S.W.3d 555 (Tex. App.—Houston [14th Dist.] 2015, pet. granted)

   ....................................................................................................................................... passim

Westbrook v. State, 29 S.W.3d 103 (Tex. Crim. App. 2000) ............................................... 40




                                                                     viii
Constitional Provisions, Statutes, and Rules

Tex. Code Crim. Proc. art. 38.22 (West 2014) ........................................... 2, 21, 22, 23, 24

Tex. Code Crim. Proc. art. 44.01 (West 2014) .................................................................. 29

Tex. Const. Art. V § 3 .......................................................................................................... 15

Tex. R. App. Proc. 33.1 (West 2014) .....................................................................10, 22, 29

Tex. R. App. Proc. 44.2 (West 2014) ....................................................................... 8, 39, 40

Tex. R. App. Proc. 47.7 (West 2014) ................................................................................. 13

Secondary Sources

LaFave, et. al., 7 Criminal Procedure § 27.6 (3d ed. 2007) ................................................... 40




                                                                ix
                               STATEMENT OF THE CASE

       The Harris County District Attorney’s Office charged Jose Jesus Vasquez (“Ap-

pellant”) by indictment with capital murder. Specifically, the Appellant was alleged to

have caused the deaths of Aleksander Lobos and Suu Nguyen. (C.R. at 2).

       Voir dire began on January 23, 2012 and a jury was seated the following morn-

ing. (2 R.R. at 200-201). Prior to trial, the defense filed two motions to suppress seek-

ing to exclude the videotaped statement the Appellant made to homicide detectives as

well as unrecorded oral statements that were not recorded. (C.R. at 54-58, 76-79).

These motions were not immediately ruled on. Instead, the trial judge made a nota-

tion on the defense’s proposed orders stating that the hearing would be held during

the trial, but outside the presence of the jury. (C.R. at 58, 79). This hearing was con-

ducted on January 25, 2012 after the commencement of testimony. (4 R.R. at 79-108).

The trial judge ultimately ruled that the defense’s motion would be granted in part and

that “any statements that [the Appellant] makes outside the video, outside of the Mi-

randa warnings that were stated on the video do not come in,” but that “The video it-

self is admissible.” (4 R.R. at 106).

       The Appellant was convicted on January 26, 2012 of capital murder. Because

the State did not elect to seek the death penalty, an automatic sentence of life without

parole was assessed. (5 R.R. at 106-107). No post-judgment motions were filed and




                                           1
The Appellant’s notice of appeal was certified by the trial court on January 26, 2012.

(C.R. at 151-152).

      On this cases first appearance before the Fourteenth Court of Appeals, in a

unanimous and published opinion authored by Justice Jamison, the Court of Appeals

held the trial court erred in admitting the Appellant’s videotaped statement and that

this erroneous admission caused the Appellant harm. Thus, the Appellant’s convic-

tion was reversed and remanded to the trial court. Vasquez v. State, 397 S.W.3d 850

(Tex. App.—Houston [14th Dist.] 2013, pet. granted).

      The State sought discretionary review from this Court. In a unanimous opinion

authored by Judge Womack, this Court declined to rule on the merits of the case and

remanded the case to the trial court with instructions to enter written findings of fact

pursuant to Texas Code of Criminal Procedure article 38.22 section 6. Vasquez v. State,

411 S.W.3d 918 (Tex. Crim. App. 2013). Pursuant to this opinion, the trial court en-

tered written findings of fact on May 7, 2014. (Supp. C.R. at 19-26).

      The case then returned to the Fourteenth Court of Appeals, where the Appel-

lant prevailed a second time. Vasquez v. State, 453 S.W.3d 555 (Tex. App.—Houston

[14th Dist.] 2015, pet. granted). The opinion of the Court of Appeals was not unan-

imous in this second appearance, as Chief Justice Frost authored a dissent which

would have held that the Appellant did not preserve error. Id. at 577-580 (Frost, C.J.,

dissenting). Again, the State sought discretionary review from this Court.




                                           2
                                 ISSUES PRESENTED

             RESPONSE TO THE STATE'S FIRST ISSUE: The Appellant’s
             pre-trial motions alleging that Miranda warnings were with-
             held, along with the subject matter explored at the hearing
             on the motion to suppress and defense counsel’s oral ob-
             jection complaining of a “two-step interview,” preserved
             the Seibert issue for appellate review.
             RESPONSE TO THE STATE'S SECOND ISSUE: The trial
             court’s written findings of fact explicitly state that the Ap-
             pellant was subject to custodial interrogation prior to re-
             ceiving and waiving his Miranda warnings on the recorded
             statement.
             RESPONSE TO THE STATE'S THIRD ISSUE: The record is
             devoid of evidence showing the Appellant received Miranda
             warnings prior to the start of the videotaped statement, and
             the State failed to carry its burden demonstrating that a
             two-step interrogation technique was not deliberately used.
             RESPONSE TO THE STATE'S FOURTH ISSUE: The errone-
             ous admission of the recorded statement contributed to the
             Appellant’s conviction, as the recorded statement was the
             primary piece of evidence identifying the Appellant as the
             shooter of the complainants, as opposed to the co-
             defendant, and was the only piece of evidence the jury
             asked to review during deliberations.
                               STATEMENT OF FACTS

      This case concerns the admissibility of the videotaped statement the Appellant

provided to homicide detectives with the Houston Police Department. On the even-

ing of April 1, 2010, Walter Gallo sought to acquire a pound of hydroponic marijuana.

In the pursuit of this venture, Gallo contacted Walter Martinez, a former co-worker

of his. (3 R.R. at 193-195). Martinez then contacted Alexander Lobos and Suu Ngu-

yen—the complainants in the present case—and arranged for the delivery of the mari-

                                           3
juana. (4 R.R. at 48-50). Gallo testified that once he arrived at Martinez’s house to re-

trieve the marijuana, Martinez and the Appellant informed him that they had just shot

two people. (4 R.R. at 214). A warrant was subsequently issued for the Appellant’s

arrest and he was taken into custody approximately two weeks later on April 16, 2010.

(5 R.R. at 65-72).

       After the Appellant had been apprehended by police at approximately 2:00

p.m., (4 R.R. at 74, 95), he was transported to the homicide squad’s offices and was

placed in an interview room at sometime before 5:15 p.m. on April 16, 2010. (4 R.R>

at 79-81, 89). Although Detective Richard Bolton eventually recorded a one-on-one

interview he conducted with the Appellant, at least two other officers, (4 R.R. at 89),

and as possibly as many as four interviewed and questioned the Appellant prior to the

recorded interview. (4 R.R. at 90, 97). This interview was conducted in an interview

room in the homicide division where video and audio equipment enabled officers not

present in the interview room to monitor what was transpiring behind closed doors.

(4 R.R. at 87-89).

       Detective Bolton began his unrecorded interview with the Appellant at approx-

imately 10:00 p.m. and testified that during the course of this interview, the Appellant

admitted his involvement in the deaths of the complainants. (4 R.R. at 91). Once De-

tective Bolton had extracted this confession, he exited the room and spoke with two

other officers who advised him that “we need to get it on video.” Id. Upon Detective

Bolton’s reentry into the interview room, the video recording commenced. (4 R.R. at

                                           4
91-92). At the start of the recording, Detective Bolton can be seen and heard reading

the Appellant his Miranda rights. Id. Although Detective Bolton testified that he had

read the Appellant his legal rights and warnings and that the Appellant appeared to

understand them, it is apparent from Detective Bolton’s testimony that this was a ref-

erence to the warnings Detective Bolton can be observed reading to the Appellant on

the videotape. (4 R.R. at 81-82). The recording contains numerous instances wherein

Detective Bolton requests that the Appellant repeat certain statements that Detective

Bolton says the Appellant had told him in their previous unrecorded interview. (4 R.R.

at 92).1

       Although the Appellant elected not to testify during the guilt-innocence phase

of the trial, he did provide testimony during the suppression hearing. According to

the Appellant, he was not given his Miranda warnings until after his initial unrecorded

confession to Detective Bolton. (4 R.R. at 97-98).

       Following testimony from Detective Bolton and the Appellant—the only two

witnesses presented at the suppression hearing—defense counsel put a finer point on

his objection to the admission of the Appellant’s videotaped statement to police.

Specifically, defense counsel’s argument was that this was an impermissible “two-

step” interview where a confession was first obtained during questioning conducted



1
 See also State’s Exhibit 150 (video recording of the Appellant’s statement to Detective Bolton);
Vasquez, 397 S.W.3d at 857 n. 12.



                                               5
prior to the giving of Miranda warnings, and that the Appellant was read his Miranda

rights for the first time once the recording had begun. (4 R.R. at 105-106). The trial

court granted the defense’s motion in part, by suppressing the unrecorded statements

made by the Appellant prior to the start of the video recording, but ruling that “[o]nly

the video statements are admissible.” (4 R.R. at 106).

                            SUMMARY OF THE ARGUMENT

       This case turns almost entirely on the proceedings in the trial court during a

hearing on the defense’s two motions to suppress. (4 R.R. at 79-108; C.R. at 54-57,

76-79). Put succinctly, the State failed to carry its burden during this hearing demon-

strating that the Appellant’s videotaped statement was admissible in two ways. First,

the State offered no evidence or testimony demonstrating that the Appellant received

his Miranda warnings prior to the start of the recorded statement. Second, the State

did not present any evidence showing that law enforcement had not deliberately used

a two-step interrogation technique of the kind specifically prohibited by the United

States Supreme Court in Missouri v. Seibert, 542 U.S. 600 (2003).

      Although the trial court found in its written findings of fact that the State had

carried its burden on both of these issues, (Supp. C.R. at 23-26), the record is devoid

of evidence to support the trial court’s findings in this respect. The testimony cited by

both the trial court and the State in support of these findings is, at best, implausible

on its face and based on internally inconsistent testimony. At worst, the testimony re-

lied on by the trial court and the State simply does not say what these parties assert

                                            6
that it does. Under these circumstances, the Fourteenth Court of Appeals acted

soundly in holding that the trial court’s findings on these issues did not find support

in the record. Vasquez, 453 S.W.3d at 569.

      The issue of law enforcement’s use of a two-step interrogation technique was

preserved for appellate review because defense counsel raised the issue of voluntari-

ness, coercion, and the withholding of Miranda warnings in two pre-trial motions to

suppress. (C.R. at 54-57, 76-79). In addition, defense counsel extensively explored the

issue of when the Appellant received his legal warnings during the hearing, and then

lodged a specific oral objection and argued that the Appellant’s recorded statement

was the product of a “two-step interview.” (4 R.R. at 105-106).

      There seems to be little doubt that the Appellant was the subject of custodial

interrogation prior to the start of his recorded statement. The trial court found as

much in its written findings of fact. (Supp. C.R. at 25). In this instance, the trial

court’s finding has ample support in the record and the State has failed to point any

evidence that could lead to the conclusion that the Appellant was not the subject of

custodial interrogation.

      Finally, because of the indelible nature of a defendant’s recorded confession,

combined with the jury’s repeated viewing of the statement—it was played for the ju-

ry on three separate occasions: during its original publication, during the State’s clos-

ing arguments, and at the request of the jury during its deliberations, (4 R.R. at 115; 5

R.R. at 101, 104; C.R. at 134)—it cannot be said that the statement’s admission did

                                             7
not contribute to the Appellant’s conviction beyond a reasonable doubt. Tex. R. App.

Proc. 44.2(a). While there was some evidence against the Appellant, it was far from

overwhelming.

                                          ARGUMENT

                 RESPONSE TO THE STATE'S FIRST ISSUE: The Appellant’s
                 pre-trial motions alleging that Miranda warnings were with-
                 held, combined with the subject matter explored at the
                 hearing on the motion to suppress and defense counsel’s
                 oral objection complaining of a “two-step interview,” pre-
                 served the Seibert issue for appellate review.2
       Two pre-trial motions to suppress the Appellant’s videotaped statement to po-

lice were filed. The first, entitled “Defendant’s Motion to Suppress the Confession,”

was filed a year-and-a-half before trial and alleged that:

       Said confession was involuntary and was coerced and enticed from the
       Defendant. The Defendant was arrested around 11 a.m. and he didn’t
       give a video statement until almost twelve hours later. He was not giv-
       en 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.
       [. . .]
       The Defendant was not given a warning of his constitutional and statu-
       tory rights as guaranteed by the United States Constitution and the Code
       of Criminal Procedure of the State of Texas by the person to whom the
       Defendant allegedly made the written/oral confession.




2
 The specific wording of the first issue granted for review by this Court is as follows: “The lower
court’s majority opinion erred in holding that the appellant preserved his two-step interrogation
complaint for appellate review.”


                                                8
(C.R. at 54) (emphasis added). The second motion, entitled “Motion to Suppress Oral

Statements,” was filed thirteen days before trial and alleged that:

       It is alleged that your Defendant may have made oral statements after his
       arrest and the use of same on the trial of this matter is prohibited by the
       Texas Code of Criminal Procedure Article 38.22, Section 3.
       The defense submits that there has been a fact issue raised as to the vol-
       untariness of an alleged oral statement made by the accused. In accord-
       ance with Article 38.22 of the Code of Criminal Procedure the Defend-
       ant will submit that the accused[‘s] alleged statement does not fall within
       any of the exceptions listed under that article.
(C.R. 76). The proposed orders on both motions contain handwritten notations from

the trial court, stating that the motion “Will be heard outside jury but with trial,” and

“Will be heard outside of jury but after jury sworn in.” (C.R. at 58, 79).

       During the course of the suppression hearing, the issue of when the Appellant

received Miranda warnings was consistently explored by defense counsel through both

Detective Bolton and the Appellant. (4 R.R. at 86-92, 97-102). At the close of the

suppression hearing, trial counsel for the defense made the following objection:

       And my next approach, Judge, is I’m contending this is a two-step inter-
       view. And because of the two-step interview, that they -- they inter-
       viewed him. 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.
(4 R.R. at 105-106). The trial court subsequently ruled that “Only the video state-

ments are admissible. Statements that he made that were not videoed are not admissi-

ble in the State’s case in chief.” (4 R.R. at 106).

                                              9
       These facts combined lead the majority to correctly hold that the Seibert issue

was preserved for appellate review. Vasquez, 453 S.W.3d at 566-67. This Court should

affirm the majority’s holding.

   A. Plain English Will Suffice To Preserve Error

       It has long been the case in Texas jurisprudence that “Straightforward commu-

nication in plain English will always suffice,” to preserve error. Lankston v. State, 827

S.W.2d 907, 909 (Tex. Crim. App. 1992). There are no hyper-technical requirements

for preservation. See Everitt v. State, 407 S.W.3d 259, 263 (Tex. Crim. App. 2013).

       Defense counsel stated in plain English the colloquial name for his objection

and went on to describe with more specificity what it was. (4 R.R. at 105-106). In ad-

dition, the two pre-trial motions to suppress raised the issue of the voluntariness of

the Appellant’s videotaped statement and made the specific claim that Miranda warn-

ings had been withheld. (C.R. at 54-55, 76-77). Per the requirements of Texas Rules

of Appellate Procedure 33.1, defense counsel went on to receive an adverse ruling

from the trial court, which ruled that the videotaped statement was admissible. (4 R.R.

at 106).

   B. This Court Has Previously Held a Seibert Complaint Is Preserved For
      Appellate Review When a Motion To Suppress Raises the Issue Of Vol-
      untariness And a Hearing Is Held On the Motion
       The State does not address in its brief one of the most salient points made by

the majority opinion on the issue of preservation. As noted by the majority, this

Court has previously addressed the issue of preservation in the context of a Seibert vio-


                                           10
lation in two unpublished opinions. See Vasquez, 453 S.W.3d at 565 n. 7. A brief re-

view of these cases is instructive on the issue currently before this Court.

          a. The motion to suppress filed in Hunt v. State, which was held suf-
             ficient to preserve error, contains language almost identical to
             those filed in the present case
       In Hunt v. State, No. PD-0152-12, 2013 WL 3282973 (Tex. Crim. App. June 26,

2013) (not designated for publication), trial counsel for Hunt filed a motion to sup-

press that alleged “any statements made by [appellant] were involuntary and coerced

and enticed from [appellant],” and that “’the statements made by [appellant] were

tainted by the illegal and unlawful detention and arrest,’ in violation of his rights under

the United States and Texas Constitutions and Article 38.23 of the Texas Code of

Criminal Procedure.” Id. at *5. This Court also noted that at the hearing on Hunt’s

motion to suppress that counsel for Hunt “extensively questioned the officers” re-

garding the use of the unwarned statement to elicit the warned statement. Id. In the

trial court’s written findings of fact, the trial court noted that “the second confession

is not so tainted as to make it inadmissible.” Id. Finally, this Court found it telling that

“The court of appeals recognized that appellant had raised a Seibert issue and cited to

that case in its analysis in both its 2009 and 2011 opinions. Clearly, that court had no-

tice of appellant’s Seibert complaint in the context of the voluntariness issue.” Id. (in-

ternal citations omitted).

       The facts of Hunt are highly analogous to the Appellant’s case. The pre-trial

motions filed by defense counsel largely mirrored the language of the motion to sup-


                                            11
press filed in Hunt. (C.R at 54-55, 76-77). At the hearing on the Appellant’s motion to

suppress, defense counsel questioned Detective Bolton and the Appellant about the

timing of Miranda warnings, whether they were withheld, and the use of the unwarned

and unrecorded statement to elicit the second warned and recorded statement. (4 R.R.

at 86-92, 97-102). The trial court’s written findings of fact on remand make findings

directly relevant to a Seibert challenge.3 (Supplemental C.R. at 25-26). And at no point

before either of this case’s two appearances before the Fourteenth Court of Appeals

was there any confusion as to the nature of the claim the Appellant was raising on di-

rect appeal. Both opinions from the Fourteenth Court of Appeals—and indeed, this

Court’s own opinion remanding the case to the trial court—conduct a review of the

case law applicable to a Seibert challenge. See Vasquez v. State, 411 S.W.3d 918 (Tex.

Crim. App. 2013); Vasquez, 453 S.W.3d at 563-565; Vasquez v. State, 397 S.W.3d 850,

854-57 (Tex. App.—Houston [14th Dist.] 2013, pet. granted). At no point during the

proceedings before the appellate courts was there any confusion about the nature of

the claim the Appellant was pursuing.4 And indeed, there is no explicit indication in



3
 As the majority opinion notes, on remand the trial court “made no finding that it had not been
aware of appellant’s Seibert challenge at the time of the suppression hearing.” Vasquez, 453 S.W.3d at
566 n. 9.
4
  It is worth noting that the State’s preservation argument was not presented to the Fourteenth
Court of Appeals on original submission or before this Court on the State’s first Petition for Discre-
tionary Review. See Vasquez, 411 S.W.3d 918; Vasquez, 397 S.W.3d 850. The State’s claim that error
was not preserved was raised for the first time two days before oral argument before the Fourteenth
Court of Appeals in a supplemental brief. See Vasquez, 453 S.W.3d at 565; Case Detail, Fourteenth
Court of Appeals, No. 14-12-00096-CR, http://www.search.txcourts.gov/Case.aspx?cn=14-12-


                                                 12
the record from either the trial court or a representative of the State appearing before

the trial court that there was confusion about the nature of the Appellant’s objection.

       Although Hunt is not binding on this Court as it was an unpublished opinion,

its reasoning remains sound. See Tex. R. App. Proc. 47.7(a); Carrillo v. State, 98 S.W.3d

789, 794 (Tex. App.—Amarillo 2003, pet. ref’d) (“The effect of the rule is to afford

parties more flexibility in pointing out such opinions and the reasoning employed in

them rather than simply arguing, without reference, that same reasoning.”). As was

the case in Hunt, this Court should again hold that the Appellant’s challenge to the use

of a two-step interrogation was preserved due to the factual and procedural similari-

ties of the cases.

           b. In holding that error was not preserved, this Court previously ad-
              vised in Batiste v. State that language similar to what defense
              counsel said at the motion to suppress hearing would preserve er-
              ror for appellate review of a Seibert claim
       The majority opinion notes that this Court held in Batiste v. State, No. AP-

76,600, 2013 WL 2424134 (Tex. Crim. App. June 5, 2013) (not designated for publica-

tion), that a Seibert issue was not preserved for appeal, but that the Appellant’s case

does not bear a close resemblance to the situation seen in Batiste. See Vasquez, 453

S.W.3d at 565 n. 7. In Batiste, this Court noted that the appellant “did not make any




00096-CR&coa=coa14 (last visited June 23, 2015) (noting that the State’s supplemental brief was
filed on September 23, 2014, while oral arguments were held and the case submitted on September
25, 2014).



                                              13
reference to Seibert, Carter, ‘two-step questioning,’ ‘question first, warn later,’ or any

other argument that might raise an issue under Seibert.” Batiste, 2013 WL 2424134, at

*16. This Court also noted that no claim of involuntariness “under the Fifth or Sixth

Amendments or under Article 38.22,” were presented on appeal. Id. at *16 n. 94.

      From this language in Batiste, it appears this Court may have held that the Seibert

claim was preserved if trial counsel had been more specific with his objection. Such a

situation now presents itself to this Court in the present case, as trial counsel objected

and used the phrase “two-step interview” and explained what he meant by that term

of art. (4 R.R. at 105-106). Additionally, the first pre-trial motion to suppress filed by

defense counsel specifically noted that his objection was based in part on the allega-

tion that the Appellant “was not given his Miranda warnings,” and that he “was not

given a warning of his constitutional and statutory rights as guaranteed by the United

States Constitution and the Code of Criminal Procedure of the State of Texas by the

person to whom the Defendant allegedly made the written/oral confession.” (C.R. at

54-55). Defense counsel’s oral objection to the trial court and written motion to sup-

press are thus not the “global” arguments that “contained little more than citations to

constitutional and statutory provisions,” that this Court has previously held are insuf-

ficient to preserve error. Swain v. State, 181 S.W.3d 359, 365 (Tex. Crim. App. 2005).




                                           14
            c. The civil case law relied on by the State is not applicable to the
               present case and is factually distinguishable
        In arguing that the Appellant’s pre-trial motions and oral objections were not

sufficient to preserve error, the State cites in its brief to the civil case5 of Phillips v.

Bramlett, 288 S.W.3d 876 (Tex. 2009). (State’s brief at 17-18). According to the Texas

Supreme Court, the objection made by trial counsel “without more, did not preserve er-

ror in this case.” Id. at 883. (emphasis added). But in the Appellant’s case, there was

substantially more than an imprecise one-sentence objection.

        As previously detailed, there were two pre-trial motions to suppress which spe-

cifically asserted that the Appellant had been denied his Miranda warnings, that the

Appellant’s videotaped statement was the product of coercion, and that the Appel-

lant’s statement was not voluntarily made. (C.R. at 54-55, 76-77). The question of

whether the Appellant had received Miranda warnings from other officers prior to the

videotaped statement was a subject broached by defense counsel when cross-

examining Detective Bolton. (4 R.R. at 87-88). The Appellant’s testimony on direct

examination described a near-text book example of a two-step interrogation, with the

Appellant testifying that the first time he received his Miranda warnings was “After I

confessed.” (4 R.R. at 97-98). To cap everything off, defense counsel stated with


5
 As this Court is undoubtedly aware, the Texas Constitution explicitly states that the Texas Supreme
Court has no appellate jurisdiction over criminal law matters. See Tex. Const. Art. V § 3(a) (“[The
Texas Supreme Court’s] jurisdiction shall be coextensive with the limits of the State and its determi-
nations shall be final except in criminal law matters. Its appellate jurisdiction shall be final and shall
extend to all cases except in criminal law matters and as otherwise provided in this Constitution or
by law.”).


                                                   15
specificity that he was objecting to the interview as the product of an illegal “two-step

interview.” (4 R.R. at 105-106). Needless to say, the single sentence objection at issue

in Phillips is a far cry from the situation at issue in the Appellant’s case.

   C. The State Bears the Burden Of Establishing the Admissibility Of the
      Appellant’s Statement And Compliance With Miranda After the Appel-
      lant Carried His Burden Of Showing the Statement Was the Product of
      Custodial Interrogation
       The dissent asserts—and the State in its brief seemingly agrees (State’s brief at

18-19)—that Martinez v. State, 272 S.W.3d 615, 623-24 (Tex. Crim. App. 2008), stands

for the proposition that the State’s burden proving admissibility “does not arise unless

the defendant first timely presents to the trial court a complaint that the police delib-

erately employed a ‘question first, warn later’ interrogation technique.” Vasquez, 453

S.W.3d at 578 (Frost, C.J., dissenting). The Appellant must respectfully disagree with

the dissent’s interpretation of Martinez in this regard.

       This Court stated in Martinez that “The state, as the proponent of the evidence

of appellant’s confession, bears the burden of establishing its admissibility. Further,

we have long held that the prosecution bears the burden of proving admissibility

when a Miranda violation is found.” Martinez, 272 S.W.3d at 623 (internal citations

omitted). In his concurring opinion, Judge Price noted that “Once a defendant has

shown that his statement was made as a result of custodial interrogation, the State has

the burden to establish compliance with Miranda.” Id. at 627-28 (Price, J., concurring).

Even Judge Hervey’s dissent in Martinez seemingly agrees with the procedural frame-



                                              16
work of the majority’s opinion—that the “heavy burden” to show compliance with

Miranda shifts to the State once the defense satisfies an initial showing—but disagrees

that the initial showing was met by Martinez in that particular case. Id. at 643 (Her-

vey, J., dissenting).

       The shifting burden can therefore be summarized as follows: the defense car-

ries the initial burden to show “that the setting is one of custodial interrogation”; the

burden then shifts to the State “to establish that Miranda warnings were given and that

the defendant voluntarily waived those rights and voluntarily responded to custodial

questioning.”      Herrera v. State, 241 S.W.3d 520, 533-34 (Tex. Crim. App. 2007)

(Cochran, J., concurring). What the dissent in the present case proposes—that the

State’s burden to show compliance with Miranda in the context of a Seibert violation

does not arise until the talismanic phrase “question first, warn later” is uttered—is

therefore a departure from what this Court held in Martinez.

       Applying the shifting burden generally applied to Miranda violations and reaf-

firmed in Martinez reveals the following: the Appellant met his initial burden to estab-

lish that his both his recorded and unrecorded statements were the product of custo-

dial interrogation in two ways. First, Detective Bolton testified that the Appellant was

arrested earlier in the day, was in custody, and was not free to leave.6 (4 R.R. at 81).



6
  It is unclear whether Detective Bolton is referring to the Appellant being in custody and not free to
leave for the videotaped statement only, or both the videotaped statement and the unrecorded
statement. The trial court later entered a written finding of fact determining that “the defendant’s


                                                  17
Second, the Appellant himself testified that he had been placed under arrest, trans-

ported directly to the homicide office, was continuously held in the same room at the

homicide office, and was not read his Miranda rights until after he made an incriminat-

ing statement. (4 R.R. at 95-99). Once the defense successfully carried its burden to

demonstrate that the Appellant’s statement was the product of custodial interrogation,

the burden then shifted to the State to show compliance with Miranda. Martinez, 272

S.W.3d at 623-24.

       But rather than present any further evidence or testimony7 to meet its “heavy

burden” to show compliance with Miranda—which would necessarily include demon-

strating that the protections of Miranda were not intentionally subverted through a

two-step interrogation technique by withholding Miranda warnings until the Appellant




original, unrecorded interview was custodial in nature.” (Supp. C.R. at 25). Even assuming that De-
tective Bolton’s testimony can be read to apply only to the videotaped statement, there is other tes-
timony which would lead to the conclusion that the Appellant’s unrecorded statements were also the
product of custodial interrogation. Specifically, the fact that the Appellant was arrested pursuant to
a warrant and was in continuous custody from that point on, (4 R.R. at 36, 39, 64-65, 72, 76), was
transported directly to the homicide office where the interview occurred following his arrest, (4 R.R.
at 77, 81), had been interviewed by at least two other law enforcement officers prior to Detective
Bolton’s interviews, (4 R.R. at 86, 89-90), and that Detective Bolton had conducted an unrecorded
interview with the Appellant immediately prior to the recorded interview. (4 R.R. at 91-92).
7
  Investigator Padilla, one of the other members of law enforcement who conducted unrecorded
interviews with the Appellant, was present in court on the day of the motion to suppress hearing
and was available to testify. In fact, Investigator Padilla was in the court during the State’s direct
examination and for a portion of defense counsel’s cross-examination of Detective Bolton. It was
not until defense counsel broached the topic of whether Detective Bolton heard or saw Investigator
Padilla’s unrecorded interview with the Appellant that the State informed the trial court of Investiga-
tor Padilla’s presence in the court’s gallery. After being informed of Padilla’s presence, the trial
court asked him to step outside of the courtroom in the event that he was called as a witness. (4 R.R.
at 86-87).


                                                  18
made incriminating statements, as the Appellant’s testimony alleged—the State did

not seek to call any other witnesses, introduce any other evidence, and agreed to pro-

ceed directly to arguments. (4 R.R. at 103-109). After receiving a favorable ruling

from the trial court, (4 R.R. at 106), the State did not seek to reopen the motion to

suppress hearing. The Appellant should not be faulted for not prodding the State to

meet its heavy burden to show compliance with the requirements of Miranda, particu-

larly after the issue of voluntariness was twice raised in pretrial motions, (C.R. at 54-

55, 76-77), the withholding of Miranda warnings was explored during the cross-

examination of both Detective Bolton and the Appellant during the hearing, (4 R.R. at

87-88, 97-102) and a specific oral objection was made by defense counsel. (4 R.R. at

105-106).

   D. Defense Counsel’s Pre-Trial Motions And Oral Objection Were Suffi-
      cient To Put the Trial Court and the State On Notice As To the Nature
      of the Complaint
      Under the test this Court set forth in Lankston, 827 S.W.2d at 909, an objection

preserves error if it is “sufficiently clear to provide the trial judge and opposing coun-

sel an opportunity to address and, if necessary, correct the purported error.” Ford v.

State, 305 S.W.3d 530, 533 (Tex. Crim. App. 2009). In addition, “the context in which

the complaint was made and the parties’ understanding of the complaint at the time,”

must also be taken into consideration. Id.

      To establish the context of what the hearing on the motion to suppress was lit-

igating, the written pre-trial motions make the subject matter immediately apparent.


                                             19
In the defense’s pre-trial motions to suppress, several references were made to the

failure of law enforcement to properly Mirandize the Appellant. In the Defendant’s

Motion to Suppress the Confession, defense counsel claimed that “He was not given

his Miranda warnings,” “The officers persistently and coercively interviewed him and

wore down his resistance and force[d] him to make a statement,” and that “The De-

fendant was not given a warning of his constitutional and statutory rights as guaran-

teed by the United States Constitution and the Code of Criminal Procedure of the

State of Texas by the person to whom the Defendant allegedly made the written/oral

confession.” (C.R. at 54-55). Therefore, both the State and the trial court were put on

notice that the defense sought to litigate whether the Appellant had been properly Mi-

randized, whether Miranda warnings had been withheld, and whether the Appellant’s

statement was made voluntarily or was the product of coercion.

          a. The trial court’s ruling makes sense in the context of a Seibert ob-
             jection made during an Article 38.22 hearing in light of the pre-trial
             motions to suppress
       A large part of the State’s argument that error was not preserved rests on the

assumption that “the trial court did not understand the nature of the objection.”

(State’s brief at 14). The State argues that the trial court’s ruling does not make sense

in the context of a Seibert motion. (State’s brief at 16). But it is clear from the context

of the trial court’s ruling that defense counsel’s Seibert objection was overruled and

that the Appellant was receiving at least some of the relief sought in his pre-trial mo-

tions to suppress.


                                            20
                 i. The trial court’s ruling indicated that defense counsel’s
                    Seibert objection was overruled and that the unrecorded oral
                    statements would be suppressed, the latter of which is part
                    of what the Appellant sought in his second motion to sup-
                    press
       The trial court’s ruling notes that “Only the video statements are admissible.

Statements that he made that were not videoed are not admissible in the State’s case

in chief.” (4 R.R. at 106). In addition, the trial court states that “I guess what I’m do-

ing is I’m granting your motion in part.” Id. It is apparent that the “part” that the trial

court was granting was the suppression of the unrecorded oral statements, which were

objected to in defense counsel’s pre-trial motion to suppress. (C.R. at 76).

       Specifically, the second motion to suppress filed by defense counsel is titled

“Motion to Suppress Oral Statements,” indicating that there are multiple oral state-

ments that defense counsel sought to suppress and not just the videotaped statement.

The body of this motion further clarifies that this is the case. The motion states that

it is seeking to suppress “any and all oral statements made by the Defendant,” and

that the Appellant “may have made oral statements after his arrest and the use of

same on the trial of this matter is prohibited by Texas Code of Criminal Procedure,

Article 38.22, Section 3.” (C.R. at 76). This allegation is contained in a separate para-

graph from the portion of the motion that seeks to suppress the videotaped state-

ment. There were therefore two things that defense counsel sought to suppress: 1)

the unrecorded oral statements made by the Appellant; and 2) the videotaped inter-

view. And the trial court specifically stated that it was “granting your motion in part,”


                                            21
(4 R.R. at 106), further solidifying the fact that the trial court was ruling on the motion

to suppress and not specifically responding to defense counsel’s Seibert objection.

         It cannot be presupposed that the mere existence of Article 38.22 and its ban

on the use of unrecorded oral statements would have prevented the State from at-

tempting to introduce or elicit testimony about those statements at trial. It was in-

cumbent on defense counsel to object and attempt to suppress the unrecorded state-

ments, which is precisely what he did.

         While the trial court does not explicitly say that it is overruling defense coun-

sel’s “two-step interview” objection, it was implicitly overruled by the fact that the tri-

al court ruled the videotaped statement was admissible. See Tex. R. App. Proc.

33.1(a)(2)(A) (error is preserved if the trial court “ruled on the request, objection, or

motion either expressly or implicitly”) (emphasis added). Viewed through the prism of

defense counsel’s second motion to suppress, the trial court’s ruling does indeed make

sense.

                  ii.   Because Seibert deals with a statement’s voluntariness, an
                        Article 38.22 hearing is the appropriate and only vehicle
                        available to a defendant through which a Seibert challenge
                        can be explored and raised
         The State proposes that the Appellant’s pre-trial motions to suppress raising

the issue of voluntariness and requesting an Article 38.22 hearing in combination with

the defense counsel’s use of the term “two-step interview,” (4 R.R. at 105-106), must

now be parsed as raising two separate issues. But the core concern of Seibert is the ef-



                                            22
fect on the voluntariness of a defendant’s statement caused by the withholding of Mi-

randa warnings. This means any objection to the use of a two-step interrogation tech-

nique must necessarily involve an Article 38.22 hearing contesting the voluntariness of

a statement. See Vasquez, 411 S.W.3d at 919 (“This undermines Miranda's primary pur-

pose: to guarantee that confessions are voluntary.”) (citing Seibert, 542 U.S. at 608,

617). And on this case’s first appearance before this Court, there seemed to be no

question that a Seibert challenge is appropriately raised through an Article 38.22 hear-

ing. Vasquez, 411 S.W.3d at 919-20 (“In Missouri v. Seibert, a fractured Supreme Court

held that Miranda was violated, because the confession was involuntary, when police

used a ‘question first, warn later’ interrogation technique. . . We have held that if a

statement is involuntary as a matter of federal constitutional law, it is also involuntary

for purposes of article 38.22. This, essentially, means that the requirement for 38.22

findings applies whenever there is a challenge to a statement's voluntariness.”).

      There is simply no other procedural mechanism available to a defendant to

raise a Seibert challenge other than through an Article 38.22 hearing. The State’s pro-

posal of parsing the Appellant’s objection into separate voluntariness and Seibert chal-

lenges is therefore precisely the sort of “hyper-technical analysis” that this Court has

repeatedly rejected. See Bekendam v. State, 441 S.W.3d 295, 301 (Tex. Crim. App. 2014)

(“[I]t would be error to distinguish ‘between admissibility based on relevance and ad-

missibility based on reliability. Under Rule 702 and our precedent, both relevance and

reliability of the expert testimony are components of a trial court's Daubert/Kelly ruling

                                           23
on admissibility.’ We additionally stated that the ‘parsing of appellant's objections is

the kind of hyper-technical analysis that we have repeatedly rejected.’”) (quoting

Everitt v. State, 407 S.W.3d 259, 263 (Tex. Crim. App. 2010)).

      The State thus misses the mark when it asserts that “the trial court’s response

showed that it mistakenly believed that the appellant was still objecting based on Arti-

cle 38.22.” (State’s brief at 18). Because defense counsel was asserting that the Appel-

lant’s statement was involuntary as a matter of federal constitutional law pursuant to

Seibert, he necessarily was also asserting that it was involuntary under Article 38.22. See

Vasquez, 411 S.W.3d at 920 (“We have held that if a statement is involuntary as a mat-

ter of federal constitutional law, it is also involuntary for purposes of article 38.22.”);

Oursbourn v. State, 259 S.W.3d 159, 169 (Tex. Crim. App. 2009) (“A statement that is

‘involuntary’ as a matter of constitutional law is also ‘involuntary’ under Article 38.22,

but the converse need not be true.”).

          b. The State had the option to request that the trial court reopen tes-
             timony on the motion to suppress, but did not do so
      The trial court has discretion to reopen and supplement evidence in a hearing

on a motion to suppress. Indeed, if the prosecutor at trial had any doubt about

whether the evidence the State had presented at the motion to suppress would carry

its burden, the State could and should have requested that the trial court reopen the

hearing on the Appellant’s motion to suppress. In Black v. State, 362 S.W.3d 626 (Tex.

Crim. App. 2012), such a scenario played out. After the trial court had denied the de-



                                            24
fense’s motion to suppress following a hearing, the State began to present testimony

as part of its case-in-chief. In the midst of its case-in-chief, the State requested that

the trial court “re-open, supplement, whatever the case may be, the motion to sup-

press, for the record that you're able to consider so that it properly shows the truth

and the facts in this case.” Id. at 629. The State was then permitted by the trial court

to present testimony from another witness on the defense’s motion to suppress. On

review before this Court, it was held that trial courts have “the discretionary authority

to reopen the hearing on the appellant's motion to suppress evidence, even mid-trial,

to allow the State to present additional evidence in support of the trial court's initial,

interlocutory ruling to deny the motion.” Id. at 635.

       Thus, the State in the present case could have requested the opportunity to re-

open testimony on the Appellant’s motion to suppress, but chose not to.8 The dis-

sent’s argument that trial counsel for the defense’s objection was untimely and there-

fore “did not allow the trial court or the State the opportunity to remove the basis for

the objection or to correct the alleged error,” is incorrect. Vasquez, S.W.3d at 578

(Frost, C.J., dissenting). Rather, the State had the opportunity to correct the alleged

error by requesting that the trial court reopen testimony on the suppression hearing.

However, the State made no attempt to avail itself of this opportunity.


8
  This fact was noted by the majority: “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.” Vasquez, 453 S.W.3d at 566 n. 9.


                                                 25
     E. The Majority Was Correct In Holding That Error Was Preserved
       In sum, the majority was correct in holding that the Appellant’s Seibert issue was

preserved for review. Vasquez, 453 S.W.3d at 567. The Appellant respectfully prays

that this Court affirms the majority’s opinion.

               RESPONSE TO THE STATE'S SECOND ISSUE: The trial court’s
               written findings of fact explicitly state that the Appellant was sub-
               ject to custodial interrogation prior to receiving and waiving his
               Miranda warnings on the recorded statement.9
       Per the order of this Court, the trial court entered written findings of fact ad-

dressing four specific questions. Vasquez, 411 S.W.3d at 920. The first of these four

questions asked the trial court to determine “whether the original, unrecorded inter-

view was custodial in nature.” Id. In complying with this Court’s order, the trial court

stated in its written findings of fact “that the defendant’s original, unrecorded inter-

view was custodial in nature.” (Supp. C.R. at 25). This finding was acknowledged by

the majority’s opinion.10 Vasquez, 453 S.W.3d at 563. The majority further noted that

“[I]t is undisputed that appellant was in custody when he made his statements.”11 Id.

at 571.



9
 The specific wording of the second issue granted for review by this Court is as follows: “The lower
court’s majority opinion erred in holding that the appellant was subject to custodial interrogation
prior to receiving and waiving his legal rights.”
10
  Chief Justice Frost’s dissenting opinion addresses only the preservation issue and does not find
fault with any other aspect of the majority’s opinion. See Vasquez, 453 S.W.3d at 577-580 (Frost, C.J.,
dissenting).
11
  The Appellant must point out that the State’s brief on this case’s second appearance before the
Fourteenth Court of Appeals does indeed dispute whether the Appellant was subject to custodial


                                                  26
   A. The Appellant Was Under Arrest, Held In the Homicide Office, And
      Subjected To Questioning By Law Enforcement Prior To His Vide-
      otaped Statement
       Even if this Court does not hold that the trial court’s written finding of fact is

immediately dispositive of this issue, the record is replete with evidence that leads to

the conclusion the Appellant was subject to custodial interrogation prior to his vide-

otaped statement. To begin with, the Appellant was arrested by an officer with the

Houston Police Department pursuant to a warrant. (4 R.R. at 62-74). Immediately

after his arrest, the Appellant was transported to the homicide office. (4 R.R. at 73-

74). Because the Appellant was the subject of a formal arrest, his Fifth Amendment

protections were triggered and he was entitled to Miranda warnings. See Gardner v.

State, 306 S.W.3d 274, 293-94 (Tex. Crim. App. 2009), cert. denied, 131 S.Ct. 103

(2010). At no time during the suppression hearing or the body of the trial did any law

enforcement officer who testified define the Appellant’s status as anything less than

custodial.

       There is no controversy that the Appellant was questioned by several detectives

before the recorded statement, as it is a fact both Detective Bolton and the Appellant

testified to. Specifically, Detective Bolton testified that two other law enforcement

officers—Sergeant Padilla and Detective Evans—had been interviewing the Appel-



interrogation. However, on this case’s original submission to the Fourteenth Court of Appeals, the
State conceded that the Appellant was in custody. See Vasquez, 397 S.W.3d 850 at 857 n. 10 (“The
State argued otherwise in its brief but admitted during oral argument that appellant was in custody
for purposes of Miranda.”).


                                                27
lant, the co-defendant, and a witness. (4 R.R. at 86). Immediately before Detective

Bolton entered the interrogation room at approximately 10:00 p.m., Sergeant Padilla

had concluded his own separate interview of the Appellant, although the record is de-

void of information regarding their discussion. (4 R.R. at 90). Regarding Detective

Bolton’s interview of the Appellant, there is no doubt that the deaths of the com-

plainants were discussed at some point, as Detective Bolton testified that both the

Appellant and the co-defendant initially denied any involvement. (4 R.R. at 87). Per-

haps most importantly, information that the Appellant provided before the videotape

begins is referred to several times on the recorded statement. Detective Bolton

agreed that he repeated questions on the videotape that he had asked in the unrecord-

ed interview to facilitate the Appellant’s recorded confession. (4 R.R. at 92).

      The Appellant’s own testimony bolsters the conclusion that he was subjected

to custodial interrogation. According to the Appellant, four officers in total came

through the interview room to speak with him, including Detective Bolton. (4 R.R. at

97). The moment when the Appellant finally agreed to deliver a confession occurred

off-camera when Detective Bolton stated to the Appellant that he had to provide

some sort of statement if he wanted to avoid the death penalty. (4 R.R. at 99-100).

   B. The State Has Not Preserved This Claim For Appellate Review

      Because the trial court found that the Appellant was subject to custodial inter-

rogation prior to his recorded statement, the State is actually taking issue with the ac-

tion of the trial court, rather than with the decision of the Fourteenth Court of Ap-

                                            28
peals. Arguably, the State could be procedurally entitled to appeal the trial court’s

finding that the Appellant was subject to custodial interrogation prior to his recorded

statement. See Tex. Code Crim. Proc. art. 44.01(c) (“The state is entitled to appeal a

ruling on a question of law if the defendant is convicted in the case and appeals the

judgment.”). However, the record does not demonstrate that the State lodged an ob-

jection to the trial court’s written findings of fact in any respect. Therefore, the

State’s claim that the trial court erred in finding that the Appellant was subject to cus-

todial interrogation, and that the Court of Appeals subsequently erred in adopting this

finding, is not preserved for appellate review. See Tex. R. App. Proc. 33.1(a)(1); State v.

Mercado, 972 S.W.2d 75, 78 (Tex. Crim. App. 1998) (“Ordinary notions of procedural

default should apply equally to the defendant and the State. . . [T]he basic principle of

appellate jurisprudence that points not argued at trial are deemed to be waived applies

equally to the State and the defense.”).

   C. The Majority Correctly Held That the Appellant Was the Subject of Cus-
      todial Interrogation
      The State has pointed to nothing in the record that would lead to the conclu-

sion that the Appellant was not the subject of custodial interrogation prior to his rec-

orded statement. On the merits of this point of error, this Court should affirm the

opinion of the Fourteenth Court of Appeals. Alternatively, this Court should hold

that the State has procedurally defaulted this claim.




                                            29
       RESPONSE TO THE STATE'S THIRD ISSUE: The record is devoid of ev-
       idence showing the Appellant received Miranda warnings prior to the
       start of the videotaped statement, and the State failed to carry its burden
       demonstrating that a two-step interrogation technique was not deliber-
       ately used.12

       The majority correctly held that the record demonstrated that a two-step inter-

rogation was deliberately employed by law enforcement in interviewing the Appellant.

Vasquez, 453 S.W.3d at 567-73. At best, Detective Bolton’s initial testimony is confus-

ing and unclear. But a plain reading of the record reveals that there is no evidence or

testimony to support the trial court’s finding that the Appellant received Miranda

warnings at any time prior to the start of the videotaped statement.

       The indicators that a two-step interrogation method was deliberately employed

by law enforcement are apparent in the present case. Detective Bolton is an experi-

enced peace officer who was aware of the need for Miranda warnings. (4 R.R. at 91-92,

109-11). There was significant overlap between the pre-warning statement and the

post-warning statement per Detective Bolton’s own admission. (4 R.R. at 92). The

statements were separated by a short break lasting only long enough for Detective

Bolton to visit the restroom. (4 R.R. at 91-92). And finally, none of the numerous cu-

rative measures that might save an otherwise inadmissible statement were employed

by law enforcement. Vasquez, 453 S.W.3d at 573-575.


12The specific wording of the third issue granted for review by this Court is as follows: “The lower
court’s majority opinion erred in holding that a two-step interrogation technique was deliberately
employed by the police.”



                                                30
     A. The Trial Court’s Findings Are Not Entitled To Deference When They
        Are Not Supported By the Record

        Although the trial court’s written findings of fact state that Detective Bolton

observed Sergeant Padilla administer Miranda warnings to the Appellant prior to the

start of the recorded interview, there is no evidence in the record to support this find-

ing. (Supp. C.R. at 23). No matter how much the State may insist that Detective Bol-

ton testified that he witnessed Sergeant Padilla read the Appellant his Miranda warn-

ings, this testimony is simply not present in the record.13 (4 R.R. at 87; States brief at

20). On the contrary, there is clear, straightforward, and conclusive testimony from

Detective Bolton establishing that he did not see any portion of Sergeant Padilla’s in-

terview with the Appellant, a fact which was noted in the majority’s opinion. (4 R.R.

at 89-90); Vasquez, 453 S.W.3d at 56-68. This later clearer testimony renders any find-

ing that Detective Bolton witnessed Sergeant Padilla interviewing the Appellant im-

plausible on its face and based on internally inconsistent testimony. See Carter v. State,

309 S.W.3d 31, 38-39 n. 39 (Tex. Crim. App. 2010). The findings of the trial court in

this regard are therefore not entitled to any deference and constitute clear error. See,

e.g., Miller v. State, 393 S.W.3d 255, 263 (Tex. Crim. App. 2012); State v. Ross, 32 S.W.3d

853, 855 (Tex. Crim. App. 2000).

13
  Because this portion of Detective Bolton’s testimony is critical to the resolution of this case, it is
reproduced below:

                Yes, I was there. I was in the monitoring room. When they entered the room,
                you know, they read the defendant - - and when they interviewed Mr. Mar-
                tinez, they also read him his legal warnings as well.


                                                  31
          a. The trial court’s findings did not turn on a credibility determina-
             tion, as there is no evidence in the record to support the finding
             that the Appellant received off-camera Miranda warnings

       Because Detective Bolton did not testify that he had observed the Appellant

receive Miranda warnings from Sergeant Padilla and the Appellant testified that he had

not received Miranda warnings until the start of the videotaped statement, there is no

controversy to resolve with a credibility determination. (4 R.R. at 87-90, 97-98). The

trial court was free to find that the entirety of Detective Bolton’s testimony was com-

pletely credible and that the Appellant’s testimony was not credible at all. Amador v.

State, 275 S.W.3d 872, 878 (Tex. Crim. App. 2008). And indeed, the trial court did

precisely that in its written findings of fact. (Supp. C.R. at 22-25). But this does not

change the content of the testimony elicited at the hearing. Either Detective Bolton

testified that he witnessed Sergeant Padilla read the Appellant his Miranda warnings, or

he did not. The only testimony that the State can point to in this regard is so opaque

that it is rendered meaningless, (4 R.R. at 87), particularly in light of the later testimo-

ny Detective Bolton gave only moments later that leaves no room for doubt he did

not witness any part of Sergeant Padilla’s interview of the Appellant. (4 R.R. at 89-90);

Vasquez, 453 S.W.3d at 568. Even reviewing Detective Bolton’s testimony in the light

most favorable to the trial court’s findings, his testimony remains internally incon-

sistent and incoherent. Under these circumstances, a court of appeals is permitted to




                                            32
find that the trial court’s findings are clear error, even if the trial court attributes the

findings to a credibility determination.14

       The State takes the position that the Fourteenth Court of Appeals held that

there was “’indisputable’ evidence to the contrary of the trial court’s findings.” (State’s

brief at 19). But this is in fact not the case. Rather, the majority held that “the trial

court’s finding that appellant received his Miranda warnings before making incriminat-

ing statements is not supported by the record. To the contrary, the State failed to pre-

sent evidence that appellant received such warnings.” Vasquez, 453 S.W.3d at 569

(emphasis added). Indeed, the majority confirms that this wording was intentional, as

it repeated this holding in a footnote, stating “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.” Id. at 575 n. 16. The Fourteenth Court of Ap-

peals was under not under the impression that the type of indisputable video evidence

presented in Carmouche v. State, 10 S.W.3d 323 (Tex. Crim. App. 2000), was present in

this case. Rather, the problem in the Appellant’s case—as made clear by the majority’s



14
  See Anderson v. Bessemer City, 470 U.S. 564, 575 (1985) (“This is not to suggest that the trial judge
may insulate his findings from review by denominating them credibility determinations, for factors
other than demeanor and inflection go into the decision whether or not to believe a witness. Docu-
ments or objective evidence may contradict the witness' story; or the story itself may be so internally
inconsistent or implausible on its face that a reasonable factfinder would not credit it. Where such
factors are present, the court of appeals may well find clear error even in a finding purportedly based
on a credibility determination. But when a trial judge's finding is based on his decision to credit the
testimony of one of two or more witnesses, each of whom has told a coherent and facially plausible
story that is not contradicted by extrinsic evidence, that finding, if not internally inconsistent, can
virtually never be clear error.”).


                                                  33
holding on this issue—was that the record was devoid of evidence to support the trial

court’s findings on this issue, not that there was a contradiction in evidence. See Car-

mouche, 10 S.W.3d at 332 (“[T]he videotape presents indisputable visual evidence con-

tradicting essential portions of Williams’ testimony.”). And as detailed previously, the

majority’s conclusion in this regard is well founded.

          b. The trial court made no findings as to Detective Bolton’s testimo-
             ny that he learned about the Appellant’s unrecorded interview di-
             rectly from Sergeant Padilla

      It is worth briefly mentioning that in the trial court’s written findings of facts,

the trial court finds “that any statements indicating that Padilla had not given the de-

fendant his legal warnings prior to questioning him are not credible.” (Supp. C.R. at

23). Unlike most of the other paragraphs in the findings of fact, there is no citation to

any part of the record. This is notable because there is no testimony or other evidence

in the record that specifically states Sergeant Padilla had or had not given the Appel-

lant his legal warnings. The record is entirely silent in this regard. Instead, what the

record does contain is testimony from Detective Bolton where he states he did not

witness any part of Sergeant Padilla’s interview with the Appellant, which logically

leads to the conclusion that he did not observe Sergeant Padilla deliver Miranda warn-

ings. (4 R.R. at 89-90). Further, the information Detective Bolton testified to regard-

ing his knowledge of Sergeant Padilla giving Miranda warnings to Martinez—the co-

defendant who was also being interviewed at the homicide offices—was relayed to




                                           34
him by Sergeant Padilla and Investigator Evans through conversation and was not ob-

tained through the viewing of the interview in the monitoring room. (4 R.R. at 90).

       The trial court’s written findings make no explicit mention of Detective Bol-

ton’s later testimony stating that he did not monitor the interview and makes no de-

termination as to the credibility of this testimony. (4 R.R. at 89-90). Instead, the writ-

ten findings cite to the earlier unclear testimony of Detective Bolton for the proposi-

tion that he had “monitored the interview,” a finding which this testimony does not

support. 15 (Supp. C.R. at 23; 4 R.R. at 87). And to reiterate, the Fourteenth Court of

Appeals agreed with this interpretation of Detective Bolton’s testimony by holding

that “the State failed to present evidence that appellant received such warnings.”

Vasquez, 453 S.W.3d at 569.

     B. The Burden To Show a Two-Step Interrogation Was Not Deliberately
        Employed Falls On the State, And the State Failed To Carry Its Burden

       A review of a trial court’s determination as to whether law enforcement delib-

erately used a two-step interrogation turns not only on the officer’s testimony, but al-

so on the surrounding circumstances. Carter, 309 S.W.3d at 39. Because Detective Bol-



15
   Defense counsel had just asked Detective Bolton “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?” Detective
Bolton responded “Yes, I was there. I was in the monitoring room.” (4 R.R. at 87). Detective Bolton
makes no mention of whether he had monitored the interview and states only that he was present in
the monitoring room. This answer makes sense in light of defense counsel’s question as to whether
Detective Bolton was there at the homicide offices, particularly in light of earlier testimony Detec-
tive Bolton delivered explaining that he was not assisting with the Appellant’s case until after the
Appellant had been in the homicide offices for several hours at 5:15 p.m. and that he “was leaving at
5:00 o’clock.” (4 R.R. at 85-88).


                                                 35
ton did not directly testify as to his subjective intent, the only method by which a de-

termination can be made as to whether a two-step interrogation was deliberately used

is to examine the totality of the circumstances surrounding the Appellant’s interroga-

tion. Id.

       As the majority correctly noted, the burden falls on the State as the proponent

of the evidence to demonstrate that the statement is admissible. And as also noted by

the majority, as part of proving the statement’s admissibility, the State carries the bur-

den of showing that a two-step interrogation technique was not deliberately em-

ployed. Vasquez, 453 S.W.3d at 570 (citing Martinez, 272 S.W.3d at 623-24). The ma-

jority also points out that other jurisdictions have placed this same burden on the

government to prove that the two-step interrogation technique was not deliberately

employed. Id. at 570 n. 12. On this issue, the State again failed to carry its burden by

producing no evidence to show that law enforcement was not deliberately employing

the “gamesmanship” of a two-step interrogation. See Carter, 309 S.W.3d at 41.

       The sole piece of evidence in the record that the State now points to in at-

tempting to show that a two-step interrogation tactic was not deliberately used is De-

tective Bolton’s reference to rapport building with the Appellant. (State’s brief at 23; 4

R.R. at 88; Supp. C.R. at 25-26). But the State’s reliance on this testimony is mis-

placed, as Detective Bolton’s testimony regarding rapport building did not have any-

thing to do with explaining a delay in administering Miranda warnings. Instead, Detec-

tive Bolton was responding to a question from defense counsel asking “Why don’t

                                           36
you audio the whole thing?” (4 R.R. at 88). In fact, defense counsel explicitly removes

the presence or absence of Miranda warnings from the equation in the run up to this

question by prefacing his question by saying “And if it comes to a point whether the Mi-

randa warnings were read or not, y’all talked to him for almost eight hours and then all the

sudden decide to start audio.” Id. (emphasis added). The majority’s opinion held that

under the circumstance of this question, it was apparent that Detective Bolton’s refer-

ence to rapport building addressed only the issue of why the Appellant’s eight hour

stay in the homicide offices produced a recording consisting of less than half-an-hour

and did not explain the delay in delivering Miranda warnings in any way. Vazquez, 453

S.W.3d at 572. A plain reading of the record supports the holding of the majority on

this issue.

       In its brief, the State relies on the same two foreign jurisdiction cases for the

proposition that rapport building is a permissible reason to delay Miranda warnings

that the Fourteenth Court of Appeals distinguished from the circumstances of the

present case. Vasquez, 453 S.W.3d at 572-73. (State’s brief at 23). While the analysis of

the Fourteenth Court of Appeals in this regard is entirely legally sound and the cases

cited by the State are certainly distinguishable in significant ways, there is one aspect

to the majority’s analysis that the Appellant would add. Specifically, the majority’s

opinion notes that the record is silent as to what subjects were discussed during the

Appellant’s unrecorded interviews. Vasquez, 453 S.W.3d at 573. And while this is

mostly the case in that the specific questions and answers from these unrecorded in-

                                            37
terviews are not in the record, there is evidence that demonstrates Detective Bolton

questioned the Appellant about the deaths of the complainants during the unrecorded

interviews. For example, Detective Bolton testified that the Appellant initially stated

that he was not involved in the incident and did not know what Detective Bolton was

talking about. (4 R.R. at 87). Further, Detective Bolton confirmed that he was asking

the Appellant to repeat certain information and incriminating statements that the Ap-

pellant had provided to him during their unrecorded interview once the video record-

ing began. (4 R.R. at 92). It is reasonable to conclude from this information that De-

tective Bolton asked at least some questions to the Appellant about the deaths of the

complaints, outside of whatever rapport building that was going on. Outside of this

small aspect, the majority was correct to distinguish the cases cited by the State.

Vasquez, 453 S.W.3d at 572-73.

   C. The Majority Was Correct In Holding the State Failed To Carry Its Bur-
      den On Both the Issues Of the Appellant’s Receipt Of Unrecorded Mi-
      randa Warnings And That a Two-Step Interrogation Technique Was Not
      Deliberately Used

      Because the record is devoid of evidence demonstrating that the Appellant re-

ceived Miranda warnings outside of the recorded statement, the Fourteenth Court of

Appeals correctly held that the State did not carry its burden to demonstrate the vide-

otaped statement was admissible. Id. at 569. Likewise, the majority correctly held that

the State did not carry its burden to show that a two-step interrogation technique was




                                          38
not deliberately employed. Id. at 573. This Court should affirm the majority’s holding

on this issue.

                 RESPONSE TO THE STATE'S FOURTH ISSUE: The erroneous ad-
                 mission of the recorded statement contributed to the Appellant’s
                 conviction, as the recorded statement was the primary piece of ev-
                 idence identifying the Appellant as the shooter of the complain-
                 ants, as opposed to the co-defendant, and was the only piece of
                 evidence the jury asked to review during deliberations.16

     A. A Violation Of Seibert Is Constitutional Error And the Harm Analysis
        Under Rule 44.2(a) Is Applied

       Because a violation of Seibert’s ban on the two-step interrogation technique

amounts to constitutional error, the appropriate harm analysis is found in Texas Rules

of Appellate Procedure 44.2(a). See Jones v. State, 119 S.W.3d 766, 777 (Tex. Crim. App.

2003) (applying Rule 44.2(a) harm analysis to an Elstad violation prior to the Supreme

Court’s decision in Seibert). When constitutional error is present in a criminal case, re-

versal is appropriate “unless the court determines beyond a reasonable doubt that the

error did not contribute to the conviction or punishment.” Tex. R. App. Proc. 44.2(a).

As stated by this Court, “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.” McCarthy v. State, 65 S.W.3d 47, 55 (Tex. Crim. App. 2001). The ultimate

question which must be answered is not “whether the jury could have convicted


16The specific wording of the fourth issue granted for review by this Court is as follows: “The lower
court’s majority opinion erred in holding that the appellant was harmed by the admission of his
statement when there was overwhelming evidence of the appellant’s guilt independent of his state-
ment to police.”


                                                 39
without regard to the error, or whether the appellate court itself would have convicted

without the error, but to the historical question whether the error had influenced the

jury in reaching its verdict.” LaFave, et. al., 7 Criminal Procedure § 27.6(e) (3d ed. 2007).

       As noted by the majority’s opinion, this Court has previously stated that “[a]

defendant’s statement, especially a statement implicating her in the commission of the

charged offense, is unlike any other evidence that can be admitted against the defend-

ant.” McCarthy v. State, 65 S.W.3d 47, 55-56 (Tex. Crim. App. 2001) (citing Arizona v.

Fulminate, 499 U.S. 279, 296 (1991)); Vasquez, 453 S.W.3d at 576. Indeed, this Court

has previously reversed a sentence of death in McCarthy, 65 S.W.3d at 56, based on the

erroneous admission of a defendant’s confession where there otherwise may have

been enough evidence for the jury to reach the same verdict without the defendant’s

statement. But even if this Court believes that the evidence against the Appellant is

significant, this is only one factor that can be considered in a Rule 44.2(a) harm analy-

sis. See Westbrook v. State, 29 S.W.3d 103, 120 (Tex. Crim. App. 2000) (“While the most

significant concern must be the error and its effects, the presence of overwhelming

evidence supporting the finding in question can be a factor in the evaluation of harm-

less error. . . . Stated in an interrogatory context, a reviewing court asks if there was a

reasonable possibility that the error, either alone or in context, moved the jury from a

state of nonpersuasion to one of persuasion as to the issue in question.”) (internal ci-

tations omitted).




                                             40
   B. The Appellant’s Statement Was the Primary Piece of Evidence Identify-
      ing Him As the Shooter
      In holding that the Appellant was harmed by the erroneous admission of his

videotaped statement, the majority reviewed the entirety of the evidence presented

against the Appellant. Vasquez, 453 S.W.3d at 576. The State’s brief cites to multiple

instances where two witnesses testified that the Appellant was heard “bragging about

having shot and killed two people for a bag of weed.” (State’s brief at 24). But the ma-

jority analyzed the testimony that the State has again pointed to and held that it was

not overwhelming. Vasquez, 453 S.W.3d at 576. A review of the testimony pointed to

by the State reveals that the majority was correct in holding that the witnesses repeat-

ed references to “they” was too vague to constitute overwhelming evidence. Id.

      This testimony constituted the majority of the evidence used to convict the

Appellant, outside of the videotaped confession. The State’s case was lacking in nu-

merous respects. A murder weapon was never recovered that would tie the Appellant

to the shooting of the complainants. (3 R.R. at 150-152). No useable fingerprints were

recovered from the car in which one of the complainants had been shot, or from oth-

er pieces of evidence including a bag of marijuana that would have directly tied the

Appellant to the shooting. (3 R.R. at 102- 104, 127-128). No DNA evidence linking

the Appellant to scene of the crime was recovered. (3 R.R. at 100, 121-122, 135-138).

A neighbor in the area of the shooting who saw activity in the area was unable to

identify the Appellant. (3 R.R. at 180-181).



                                           41
   C. The Appellant’s Statement Was Viewed By the Jury On Multiple Occa-
      sions And Was the Only Piece Of Evidence the Jury Asked To Review
        In addition to the fact that the videotaped statement was the primary piece of

evidence identifying the Appellant as the shooter, harm caused to the Appellant can

be demonstrated in three additional ways. First, it was emphasized by the State during

closing arguments. Second, the jury demonstrated the importance the statement held

to its deliberations by asking to have it played again in the course of deliberating.

Third, the defensive theory that the Appellant had acted in self-defense or that he had

committed murder, and not capital murder, was undermined by the statements con-

tent.

        Combining the indelible impact that the Appellant’s videotaped statement had

on the jury with the portions of the record described below demonstrating the state-

ment’s importance to the trial, the logical conclusion is that the Fourteenth Court of

Appeals was correct to hold the Appellant suffered harm. Vasquez, 453 S.W.3d at 576.

           a. The recorded statement was emphasized by the State during clos-
              ing arguments
        In its closing argument to the jury, the State emphasized that based on the Ap-

pellant’s statement there was no question that he was the guilty party:

              Now, my belief obviously when I charged it is that he did every
              single bit of these, every single part. And from the very begin-
              ning, there’s been no argument that he killed both Aleksander
              Lobos and Suu Nguyen. He shot and killed both of them. How
              do we know that? That’s from his own words. You got to see it
              right there on the screen. And what’s even more, if you really
              want to see it again, it’s in evidence. You just ask and that’ll go


                                           42
              back there and they can play every bit of it. I’m going to play a lit-
              tle bit of it for you in a minute.
(5 R.R. at 93).

       A short time later, the State fulfilled its promise to revisit the statement and

played a 45 second excerpt from it to demonstrate that the Appellant did not act in

self-defense. (5 R.R. at 101).

          b. The jury asked to view the statement during deliberations
       During deliberations, the jury sent out two notes.17           The first note asked

“Could we please have the recorded statement of Jose Vasquez?” In its answer, the

trial court wrote “heard in court.” (C.R. at 134). Following the receipt of this note,

the trial court paused the jury’s deliberations, brought them back into the courtroom,

and played the Appellant’s recorded statement for the assembled jury. (5 R.R. at 103-

104). This viewing of the Appellant’s recorded statement during jury deliberations

marked the third time that the video had been played for the jury, with the other two

viewings occurring during its original publication, and the second time during the

State’s closing arguments. (4 R.R. at 115; 5 R.R. at 101, 104).

       Because this was the only note the jury sent out requesting to see a particular

piece of evidence or revisit any witness’s testimony, the jury’s note illustrates the high

importance the statement had on the jury’s deliberations.



17
   The second note asked “Does the judge read our requests out loud to the court?” to which the
trial court responded “I inform the lawyers of all requests made by the jury.” (C.R. at 135).



                                              43
          c. The defensive theory that the Appellant acted in self-defense or
             was guilty only of the lesser-included offense of murder was un-
             dermined by the recording
       The strategy of the defense at trial was not an all-or-nothing approach. Rather,

the defense requested and received a lesser included charge of murder, as well as in-

structions on self-defense and defense of a third person. (C.R. at 149-153). Based on

the contents of the Appellant’s statement that was contained on the recording, any

prospect that the defense may have had of obtaining an acquittal based on self-

defense was completely eliminated, as the Appellant denied seeing either of the com-

plaints wielding a deadly weapon. (State’s Exhibit 150).

   D. The Majority Correctly Held That the Appellant’s Recorded Statement
      Likely Affected the Jury’s Deliberations
       If the evidence in dispute were something other than the Appellant’s vide-

otaped confession, the issue of harm might be a closer call. But because a defendant’s

confession is a rarified type of evidence, the presence of sufficient evidence to convict

the Appellant does not prevent a holding that the Appellant suffered harm. McCarthy,

65 S.W.3d at 56 (“Regardless of whether there was, apart from appellant's statement,

sufficient evidence to conclude that the outcome of the trial was proper, we find it

impossible to say there is no reasonable likelihood that the State's use of appellant's

statement materially affected the jury's deliberations.”). This is particularly true in light

of the jury’s request to view the Appellant’s statement during deliberations, and that




                                             44
this was the only piece of testimony or evidence that the jury asked to view. (5 R.R. at

103-104; C.R. at 134).

       The majority was correct in holding that the erroneous admission of the Appel-

lant’s recorded statement caused him harm and likely materially affected the jury’s de-

liberations. Vasquez, 453 S.W.3d at 576. This Court should affirm the majority’s hold-

ing on this issue.




                                          45
                                     PRAYER

      Jose Jesus Vasquez asks this Honorable Court to affirm the majority opinion of

the Fourteenth Court of Appeals and remand the case to the trial court for further

proceedings.


                                                   Respectfully submitted,
                                                   ALEXANDER BUNIN
                                                   Chief Public Defender
                                                   Harris County, Texas


                                                   /s Mark Kratovil
                                                   MARK KRATOVIL
                                                   Assistant Public Defender
                                                   Texas Bar Number 24076098
                                                   1201 Franklin Street, 13th Floor
                                                   Houston, Texas 77002
                                                   Telephone: (713) 274-6728
                                                   Facsimile: (713) 437-4339
                                                   mark.kratovil@pdo.hctx.net




                                        46
                             CERTIFICATE OF SERVICE

      I certify that I provided a copy of the foregoing brief to Eric Kugler at the

Harris County District Attorney’s Office by electronic service through eFile Texas on

June 26, 2015. A copy of this brief was also served to the State Prosecuting Attorney

on the same day through eFile Texas.

                                                    /s Mark Kratovil
                                                    MARK KRATOVIL




                                         47
                           CERTIFICATE OF COMPLIANCE

      Pursuant to Rule 9.4(i)(3), undersigned counsel certifies that this brief complies

with the type-volume limitations of Tex. R. App. Proc. 9.4(e)(i).

1.    Exclusive of the portions exempted by Tex. R. App. Proc. 9.4 (i)(1), this brief

contains 12,930 words printed in a proportionally spaced typeface.

2.    This brief is printed in a proportionally spaced typeface using Garamond 14

point font in text and Garamond 12 point font in footnotes.

3.    Upon request, undersigned counsel will provide an electronic version of this

brief and/or a copy of the word printout to the Court.

4.    Undersigned counsel understands that a material misrepresentation in complet-

ing this certificate, or circumvention of the type-volume limits in Tex. R. App. Proc.

9.4(j), may result in the Court's striking this brief and imposing sanctions against the

person who signed it.

                                                /s Mark Kratovil
                                                MARK KRATOVIL




                                           48
