                                                                                  ACCEPTED
                                                                             13-14-00661-CR
                                                             THIRTEENTH COURT OF APPEALS
                                                                    CORPUS CHRISTI, TEXAS
                                                                        12/3/2015 3:10:39 PM
                                                                            Dorian E. Ramirez
                                                                                       CLERK

              CAUSE NO. 13-14-00661-CR
        ***********************************
                                             FILED IN
            IN THE COURT OF APPEALS  13th COURT OF APPEALS
                                  CORPUS CHRISTI/EDINBURG, TEXAS
    THIRTEENTH JUDICIAL DISTRICT OF       TEXAS
                                      12/3/2015 3:10:39 PM
       CORPUS CHRISTI - EDINBURG, TEXASDORIAN E. RAMIREZ
        *********************************** Clerk
                  ELIAS GAITAN,
                     Appellant,
                         v.
               THE STATE OF TEXAS,
                      Appellee.
        **********************************
            STATE'S APPELLATE BRIEF
    ON APPEAL FROM CAUSE NO. 2014-DCR-955-E
      IN THE 357TH JUDICIAL DISTRICT COURT
            CAMERON COUNTY, TEXAS
        ***********************************
                               Luis V. Saenz
                               County and District Attorney
                               Cameron County, Texas

                               Kristine N. Trejo
                               Assistant District Attorney
                               Cameron County, Texas
                               State Bar No. 24091764

                               964 E. Harrison St.
                               Brownsville, Texas 78520
                               Tel: (956) 544-0849
                               Fax: (956) 544-0869
                               Counsel for the State

           ORAL ARGUMENT REQUESTED



                            
 
                       Statement Regarding Oral Argument
 
      Appellant has requested oral argument pursuant to Tex. R. App. P. 39.1

stating that the facts and legal arguments as to the issues presented herein would be

significantly clarified by oral argument. The State requests oral argument as well.

                           Identification of the Parties
 
Counsel for the State of Texas – Appellee:
Cameron County District Attorney:
Luis V. Saenz
964 E. Harrison St.
Brownsville, Texas 78520

Appellate Assistant District Attorney:
Kristine N. Trejo
Rene Gonzalez

Trial Court Assistant District Attorneys:
Brandy Bailey
Luis De La Garza

Counsel for Elias Gaitan – Appellant:
Trial Court Attorneys:
Rebecca Rubane,
847 E. Harrison
Brownsville, Texas 78520

Appellate Attorney:
Joseph Moreno
23409 El Paso Dr.,
Harlingen, Texas 78552

Trial Court Judge, 357TH Judicial District, Cameron County, Texas:
Hon. Oscar X. Garcia

                                            i 
 
                                              Table of Contents
                                                                                                                 Page

Statement Regarding Oral Argument ................................................................. i 

Identification of the Parties ................................................................................ i 

Table of Contents .............................................................................................. ii 

Index of Authorities ......................................................................................... iii 

Statement of the Case ....................................................................................... iv 

Statement of the Facts ........................................................................................ 2 

Summary of the Argument ................................................................................. 6 

Argument ........................................................................................................... 8 

A. The trial court was correct when it refused to suppress the second two
   statements of Appellant because they were not the product of continued
   questioning after Appellant requested assistance of counsel………………..8
B. Trial counsel did not provide ineffectivence assistance of counsel when she
   failed to object to previously excluded evidence……………………………..17

Prayer ............................................................................................................... 22 

Certificate of Compliance ................................................................................ 23 

Certificate of Service ....................................................................................... 23 



 

 

                                                                                                         




                                                            ii 
                                                              
                                        Index of Authorities
                                                                                                   Page:
I. Cases
Federal
Edwards v. Arizona, 451 U.S. 477 (1981) …………….………………...................7

McMann v. Richardson, 397 U.S 759 (1970)……. ................................................... 7

Powell v. Alabama, 287 U.S. 45 (1932)……..………………………………..........7

Rhode Island v. Innis, 446 U.S. 291 (1980) ............................................................... 7

Strickland v. Washington, 466 U.S. 668 (1984) ........................................................ 7

United States v. Singh, 261 F.3d 530 (5th Cir.2001).................................................7


State
Amador v. State, 221 S.W. 3d 666 (Tex. Crim. App. 2007)………………………..8

Ancira v. State, 516 S.W.2d 924 (Tex. Crim. App. 1974)....................................... 11

Armendariz v. State, 123 S.W. 3d 401 (Tex. Crim. App. 2003), cert. denied, 541
U.S. 974 (2004)…………………………………………………………………….9

Baldree v. State, 784 S.W.2d 676 (Tex.Crim.App.1989)…………….………15, 17

Best v. State, 118 S.W. 3d 857 (Tex. App—Fort Worth 2003, no pet.)…………...8

Cates v. State, 776 S.W.2d 170 (Tex.Crim.App.1989)……………………….10, 11

Chambliss v. State, 647 S.W.2d 257 (Tex.Crim.App.1983)………………………10

Garcia v. State, 57 S.W. 3d 475 (Tex. Crim. App. 2001)………………………...19

Guzman v. State, 955 S.W. 2D 85 (Tex. Crim. App. 1997)……………………..…8

Henson v. State, 794 S.W. 2d 385 (Tex. Crim App. 1990)…………………...11, 12

Holloway v. State, 780 S.W.2d 787 (Tex.Crim.App.1989)……………….………15

Janecka v. State, 739 S.W. 2d 813 (Tex. Crim. App. 1987)…………….………..16

                                                     iii 
                                                        
Jones v. State, 795 S.W.2d 171 (Tex.Crim.App.1990)……………...……………16

Mata v. State, 226 S.W. 3d 425 (Tex. Crim. App. 2007)…………………………19

McCrory v. State, 643 S.W.2d 725 (Tex.Crim.App.1982)……………………10, 11

Paez v. State, 681 S.W.2d 34 (Tex.Crim.App.1984)……………………………...10

Roberston v. State, 187 S.W. 3d 475 (Tex. Crim. App. 2006)………………..18, 19

Romero v. State, 800 S.W. 2d 539 (Tex. Crim. App. 1990)………………………..8

Shiflet v. State, 732 S.W.2d 622 (Tex. Crim. App. 1985)…….…………………..14

State v. Consaul, 960 S.W.2d 680 (Tex.App.-El Paso 1997, pet. dism'd)………...15

State v. Cullen, 195 S.W. 3d 696 (Tex. Crim. App. 2006)…………………………8

State v. Kelly, 204 S.W. 3d 808 (Tex. Crim. App. 2006)………………………..8, 9

State v. Ross, 32 S.W. 3d 853 (Tex. Crim. App. 2000)…………………………….8

State v. Stevens, 235 S.W. 3d 736 (Tex. Crim. App. 2007)………………………..9

Thompson v. State, 9 S.W. 3d 808 (Tex. Crim. App. 1999)………………………19

Vasquez v. State, 830 S.W. 2d 948 (Tex. Crim. App. 1992)……………………...19

Wiede v. State, 214 S.W. 3d 17 (Tex. Crim. App. 2007)……………...…………...8

II. Constitution
TEX CONST. art. 1 §10……………………...……………………………………...18

U.S. CONST. amend. VI…………………………………...……………………….18

III. Statutes

Tex. Code Crim. Proc. Art. 38.22……………………….……………………….....7




                                     iv 
                                       
                              Statement of the Case
 
Nature of the Case:        Appellant was charged by indictment for four offenses:

                           Count I: Aggravated Sexual Assault of a Child

                           Count II: Continuous Sexual Assault of a Child

                           Count III: Indecency with a child by contact

                           Count IV: Indecency with a child by contact

Trial Court:               357H Judicial District Court, Cameron County, Texas,
                           Hon. Oscar X. Garcia

Proceedings:               Appellant pleaded not guilty to all four offenses.

                           A jury was selected for the trial on the merits. The trial
                           judge was selected to determine the guilt / innocence
                           phase of trial. On August 5, 2014, the trial began with
                           evidence, and continued until August 8, 2014.


Trial Court Disposition:   The jury found Appellant guilty of all four counts in
                           the indictment: (I) Aggravated Sexual Assault of a
                           Child, (II) Continuous Sexual Assault of a child, (III)
                           Indecency with a child by contact; and (IV) Indecency
                           with a child by contact.

                           The trial court judge sentenced Appellant to life in
                           prison without the possibility of parole in the Texas
                           Department of Criminal Justice-Institutional Division
                           (hereinafter TDCJ-ID) for Count I of the indictment,
                           life in prison in the TDCJ-ID for Count II, and 20 years
                           each in the TDCJ-ID for Counts III and IV, to run
                           concurrently.




                                          v 
                                            
                           CAUSE NO. 13-14-00661-CR
                  ***********************************
                      IN THE COURT OF APPEALS
              THIRTEENTH JUDICIAL DISTRICT OF TEXAS
                 CORPUS CHRISTI - EDINBURG, TEXAS
                  ***********************************
                            ELIAS GAITAN,
                               Appellant,
                                   v.
                         THE STATE OF TEXAS,
                                Appellee.
                  **********************************
                         STATE'S APPELLATE BRIEF
              ON APPEAL FROM CAUSE NO. 2014-DCR-955-E
                 IN THE 357TH JUDICIAL DISTRICT COURT
                         CAMERON COUNTY, TEXAS
                    ***********************************
To the Honorable Thirteenth Court of Appeals:


      Comes now the State of Texas, by and through the District Attorney for the

107th Judicial District, Cameron County, Texas, and files this Appellate Brief on

behalf of The State of Texas. The State of Texas asks this Court to affirm the

guilty verdict, and deny any and all other relief requested:




 
 

                                          1 
                                            
                                Statement of Facts

      On October 8, 2013, Detective Lucio of the Brownsville Police Department,

Sex Crimes Unit, was assigned to investigate a Sexual Assault of a Child Case. 2

RR. 74, 16-19. After speaking with the victim, it became apparent that the suspect

in this case was the victim’s father, Mr. Elias Gaitan Jr. (hereinafter Appellant). 3

RR. 23, 9-17. During the course of his investigation and after Appellant was

located and arrested, Detective Lucio had several conversations with Appellant

regarding the case. 2 RR 75, 13-15. As a result, a Motion to Suppress was held

before trial on the merits began regarding three separate statements made by

Appellant.

      The first of these statements was elicited during a conversation which took

place at the police department. 2 RR 75, 11-12. Although only Detective Lucio

and Appellant were present during this discussion, the conversation was recorded.

2 RR 75, 13-14. At the beginning of the conversation, Detective Lucio introduced

himself and gave the purpose of the interview to Appellant. 2 RR 76, 7-12. At this

point, Detective Lucio stated that Appellant requested the assistance of a public

defender, to which Lucio replied “That’s what I was fixing to do. I was going to

make you aware of your rights. I was going to read you your rights. Are you

aware of the charge?” 2 RR 76, 16-19.    Detective Lucio then told Appellant about

the charges against him and also informed him that it was his daughter who had


                                         2 
                                           
made the accusations. 2 RR 76, 20-23. However, Appellant was adamant that the

accusations were made by his wife. 2 RR 77, 11-14.

      During a pretrial motion to suppress, Detective Lucio stated that he was not

trying to elicit any response from Appellant during this first conversation, but was

merely trying to make Appellant aware of his rights and to clarify that Appellant’s

wife was not the person making the allegations.          Id.   Further, during the

conversation between Lucio and Appellant, no straightforward admissions were

made. 2 RR 87, 3-4. However, trial counsel for Appellant was concerned that the

State would use Appellant’s silence as to the allegations as an admission of guilt

and wished to suppress the entire recorded conversation. 2 RR 87, 7-9. After legal

arguments were heard by the court and the recording was played, this first recorded

statement made by Appellant was suppressed by the trial court. 2 RR 87,

      The second statement that Appellant’s trial counsel sought to suppress took

place during a recorded conversation between Appellant and his father, Mr. Elias

Gaitan Sr. 2 RR 89, 1-3. During the Motion to Suppress, Detective Lucio testified

that Mr. Gaitan came to the Brownsville Police Department and wished to speak

with him regarding his son’s case. Id. Mr. Gaitan told Detective Lucio that he

wished to speak with Appellant regarding the allegations. 2 RR 89, 3-6. After

speaking with his supervisor, Detective Lucio allowed Mr. Gaitan to speak with

Appellant. 2 RR 89, 7-8. The conversation between Mr. Gaitan and Appellant


                                         3 
                                           
took place in a police interrogation room, where a camera was readily visible. 2

RR 90, 1-2. Although Detective Lucio admits that he did not directly inform either

Mr. Gaitan or Appellant that their conversation would be recorded, it was evident

by statements made during the recording that both parties were aware of this fact.

2 RR 89, 21-23. In fact, during this conversation, Appellant informed his father

that he could not say much because they were being recorded. 2 RR 89, 21-23.

      During this conversation, direct admissions were made by Appellant. 2 RR

90, 7-9. Appellant did not deny the allegations made against him and informed his

father that his actions were not forceful against his daughter. 2 RR 90, 11-13.

Before this second conversation took place, Detective Lucio did not tell Mr. Gaitan

what to ask Appellant, nor did he request for Mr. Gaitan to speak with Appellant.

2 RR 90, 14-19.

      The third statement took place soon after Appellant left the interview room

where he had previously spoken with his father. 2 RR 93, 21-23. As Detective

Lucio was escorting Appellant back to his jail cell at the police department,

Appellant once again asked him when he would be allowed to speak with an

attorney. 2 RR 94, 4-5. Detective Lucio informed Appellant that an attorney

would be appointed to represent him. 2 RR 94, 7-8. Detective Lucio also told

Appellant that once he had an attorney appointed, he (referring to Detective Lucio)

would be available if Appellant wished to speak with him with his attorney


                                         4 
                                           
present. 2 RR 94, 7-9. Appellant then stated that he wanted to work out a deal

with the State, that he was not forceful with his daughter and that the sexual acts

did not occur as often as she stated that they did. 2 RR 94, 8-9. At this time,

Detective Lucio was not questioning or interrogating Appellant, and did not say or

do anything to elicit these statements from him. Id. Detective Lucio testified that

after these statements were made, he again informed Appellant that “…once he had

his attorney and wanted to speak with [him], [he] would be available.” 2 RR 94,

10-11.

      At the close of the Motion to Suppress and after legal arguments were made,

the court granted Appellant’s motion to suppress as to his first statement, but

denied suppression of his second and third statements. 2 RR 107, 13-15; 2 RR

109, 1-2. However, during trial on the merits, the State was able to elicit testimony

regarding Appellant’s first statement despite the fact that it had been previously

suppressed by the Court. 3 RR 36, 12-23. This testimony that was elicited by the

State was not objected to by Appellant’s trial counsel. Id.

      However, in addition to this statement, there was an overwhelming amount

of evidence that was considered by the jury before Appellant was convicted. In

addition to the Appellant’s statements, the State introduced into evidence two

letters from Appellant to the victim. 4 RR 37, 10. In these letters, Appellant asked

the victim to create a video recanting her statements and instructed her not to speak


                                          5 
                                            
with any of the State’s attorneys. 4 RR 42, 15-17. Testimony from Johanna

Frausto, a forensic interviewer employed at the Cameron County Child Advocacy

Center was also heard by the jury. 3 RR 129, 4-5. Through this testimony, the

State was able to show the victim’s video statement detailing the extent of the

sexual abuse that she endured. 3 RR 142, 6-12. The State was also able to show

that the victim had endured physical trauma to her hymen through the testimony of

Goldie Stralder, a CART nurse who worked at Valley Baptist Medical Center and

examined the victim after the outcry was made.            3 RR 74, 17-23.       After

considering all of the evidence, the jury entered a guilty verdict on all counts as

they were alleged in the indictment. CR p. 143-146. Appellant was sentenced by

the trial court to life without possibility of parole on Count I, life in prison on

Count II, and twenty (20) years each on Counts II and IV. 7 RR 20, 17-23.

                            Summary of the Argument

      In Appellant’s first point of error, Appellant alleges that his second two

statements should have been suppressed by the trial court because they were taken

after he requested the assistance of counsel and without a valid waiver of his rights.

However, the State contends that Appellant’s admissions made during a recorded

conversation between Appellant and his father were not the result of custodial

interrogation by a law enforcement agent. The State also asserts that Appellant’s

father voluntarily asked to speak with his son out of concern for his son’s


                                          6 
                                            
wellbeing and that he was not acting as an agent of the State when the admissions

were made. Further, Appellant initiated the communication with law enforcement

which led to his third statement. Accordingly, Appellant’s third statement was not

made as a result of custodial interrogation. Thus, the requirements of Tex. Pen.

Code 38.22 § 3 and Tex. Pen Code 38.23 simply do not apply to the admissibility

of Appellant’s second and third statements, and the trial court was correct in

allowing them into evidence. Therefore, Appellant’s first point of error should be

overruled.

      In Appellant’s second point of error, he alleges that he received ineffective

assistance of counsel because his trial counsel failed to object to previously

excluded evidence at trial. Specifically, Appellant’s trial counsel failed to object to

testimony regarding Appellant’s first statement, which was suppressed by the trial

court. However, the State asserts that a single error should not result in a finding

of ineffective assistance of counsel. Further, the State contends that Appellant has

failed to show that the results of the proceeding would have been different but for

counsel’s actions since the suppressed statement contained no direct admissions by

Appellant. Also, there was an overwhelming amount of evidence introduced at

trial which proved Appellant’s guilt to the offenses alleged. Therefore, Appellant

failed to meet his burden of showing that he received ineffective assistance of

counsel, and his second point of error should be overruled.


                                          7 
                                            
                                   Argument

A. The trial court was correct when it refused to suppress the second and
   third statements of Appellant because they were not the product of
   continued questioning after Appellant requested assistance of counsel

       a. Standard of Review and Applicable Statutory Law

   A trial court’s ruling on a motion to suppress evidence is reviewed under a

bifurcated standard of review. Amador v. State, 221 S.W. 3d 666, 573 (Tex. Crim.

App. 2007); Guzman v. State, 955 S.W. 2D 85, 89 (Tex. Crim. App. 1997).

Findings of fact on a motion to suppress are reviewed under a clearly erroneous

standard and conclusions of law are reviewed de novo. See United States v. Singh,

261 F.3d 530, 535 (5th Cir.2001). When reviewing the trial court’s decision, the

Appellate Court must not engage in its own factual review. Romero v. State, 800

S.W. 2d 539, 543 (Tex. Crim. App. 1990); Best v. State, 118 S.W. 3d 857, 861

(Tex. App—Fort Worth 2003, no pet.). The trial judge is the sole trier of fact and

judge of the credibility of the witnesses and the weight to be given to their

testimony. Wiede v. State, 214 S.W. 3d 17, 24-25 (Tex. Crim. App. 2007); State

v. Ross, 32 S.W. 3d 853, 855 (Tex. Crim. App. 2000), modified on other grounds

by State v. Cullen, 195 S.W. 3d 696 (Tex. Crim. App. 2006).

   When reviewing the trial court’s ruling on a motion to suppress, the evidence

must be viewed in the light most favorable to the trial court’s ruling. Wiede, 214

S.W. 3d at 24; State v. Kelly, 204 S.W. 3d 808, 818 (Tex. Crim. App. 2006).


                                        8 
                                          
When the trial court makes explicit fact findings, the question is whether the

evidence, when viewed in the light most favorable to the trial court’s ruling,

supports the fact findings. Kelly, 204 S.W. 3d at 818-19. The trial court’s legal

ruling is reviewed de novo unless its explicit fact findings that are supported by the

record are also dispositive of the legal ruling. Id. at 818. The trial court’s ruling

must be upheld if it is supported by the record and is correct under any theory of

law applicable to the case. State v. Stevens, 235 S.W. 3d 736, 740 (Tex. Crim.

App. 2007); Armendariz v. State, 123 S.W. 3d 401, 404 (Tex. Crim. App. 2003),

cert. denied, 541 U.S. 974 (2004).       In the instant case, a de novo review is

appropriate because the question presented is not a question of credibility but

application of appropriate law to the facts. Id.

    Art. 38.22 of the Texas Code of Criminal Procedure states that:

      Sec. 3 (a) No oral or sign language statement of an accused made as a
      result of custodial interrogation shall be admissible against the
      accused in a criminal proceeding unless:
   (2) Prior to the statement but during the recording the accused is given
      the warning in Subsection (a) of Section 2 above and the accused
      knowingly, intelligently, and voluntarily waives any rights set out in
      the warning;

    However, Article 38.22 also provides that:

      Sec 5. Nothing in this article precludes the admission of a statement
      made by the accused in open court at his trial, before a grand jury, or
      at an examining trial in compliance with Articles 16.03 and 16.04 of
      this code, or of a statement that is the res gestae of the arrest or of the
      offense, or of a statement that does not stem from custodial
      interrogation, or of a voluntary statement, whether or not the result of
                                          9 
                                            
      custodial interrogation, that has a bearing upon the credibility of the
      accused as a witness, or of any other statement that may be admissible
      under law.

       b. The recorded statements between Appellant and his Father are
          admissible because they did not stem from custodial interrogation
      Although it is true that an oral statement made pursuant to custodial

interrogation is not admissible unless the requirements of article 38.22, section 3(a)

of the Texas Code of Criminal Procedure are met, section 5 of article 38.22 allows

the admission of “... a statement that does not stem from custodial interrogation....”

Tex. Code. Crim. Proc. Art. 38.22 Sec. 5. If a statement does not stem from

custodial interrogation, it is admissible against the accused on the question of guilt.

Chambliss v. State, 647 S.W.2d 257, 263 (Tex.Crim.App.1983). In this case, the

determination of whether appellant's statement was in response to custodial

interrogation hinges upon whether Appellant’s father was acting as an agent of the

State at the time the statement was made. See Cates v. State, 776 S.W.2d 170

(Tex.Crim.App.1989); Paez v. State, 681 S.W.2d 34 (Tex.Crim.App.1984) (both

involved investigators with the Texas Department of Human Resources).

      When deciding whether a non-law enforcement questioner was acting as an

agent of law enforcement, numerous factors must be considered in light of the

existing   circumstances.     McCrory     v.    State,   643    S.W.2d     725,    727

(Tex.Crim.App.1982). Case law has emphasized that “it [is] difficult to formulate

a general rule to distinguish custodial interrogation from non-custodial

                                          10 
                                            
interrogation. A case by case approach in which the evidence is reviewed ... is

deemed necessary.” Ancira v. State, 516 S.W. 2d 924, 927 (Tex. Crim. App.

1974).    When making this determination, the record as a whole must clearly

establish that Appellant's statements resulted from a calculated practice which all

agents of the State involved knew was reasonably likely to evoke an incriminating

response.   Cates, 776 S.W.2d at 172 (citing McCrory, 643 S.W.2d at 743).

Simply put, the record must establish that when the Appellant made the

admissions, Appellant’s father was utilizing his capacity so as to accomplish what

the police could not have lawfully accomplished themselves. Cates, 776 S.W. 2d

at 172.

      In Henson v. State, the Court of Appeals held that questioning of the

defendant by a friend was not custodial interrogation by an agent of the State.

Henson v. State, 794 S.W. 2d 385, 385 (Tex. Crim App. 1990). When the court

was deciding whether the non-law enforcement questioner was acting as an agent

of law enforcement, it considered numerous factors in light of the existing

circumstances as well as the relevant facts. Id. at 390. The appellant in this case

argued that his friend was acting as an agent for the following reasons: (1) his

friend testified that he had talked to the main investigator of the case three times

regarding the victim’s disappearance, (2) that the investigator had visited the friend

in his home twice, (3) that the investigator solicited his friend’s assistance in the


                                         11 
                                           
case and (4) that based on his friend’s conversations with the investigator, his

friend showed that he was willing to aid the sheriff’s office in the investigation. Id.

      However, in Henson the State countered with the assertion that, when the

appellant made his admission of guilt, his friend had not been instructed by anyone

to ask any particular questions and that he was not and never had been a police

officer. Id. Further, the State asserted that the Appellant’s friend’s vague passing

references to his desire to provide whatever information he could to the police did

not make him a police agent, but merely a cooperative citizen. Id. The Court of

Appeals agreed with the State’s argument and overruled the Appellant’s point of

error. The Court held:

             Based on the…uncontroverted facts, we conclude that the
      record supports the trial court’s findings that [Appellant’s friend] did
      not act as an agent of the State when he visited Appellant in jail and
      elicited Appellant’s admission of guilt. The evidence shows that
      [Appellant’s friend] went to the jail on his own out of concern for
      Appellant’s welfare. [Appellant’s friend] already knew that Appellant
      had confessed to the murder, but wanted to hear it directly from
      Appellant to be sure that Appellant had not been abused. [Appellant’s
      friend] had not provided information to the officers that resulted in
      Appellant’s arrest, nor was he conducting a criminal investigation in
      any official capacity…
    Id. at 391. The facts in the present case are analogous to the facts in Henson.

To begin, as in Henson, Appellant’s father did not provide the police with any

information which led to Appellant’s arrest. At the time that Appellant’s father

visited Appellant, he was already in custody pursuant to a valid arrest warrant


                                          12 
                                            
based on probable cause which had been signed by a magistrate. Further, during

the pretrial motion to suppress, it is evident from the testimony elicited from

Detective Lucio that, like the friend in Henson, Appellant’s father also went to the

jail on his own out of concern for Appellant’s welfare. The record reflects the

following:

Counsel (State): Detective Lucio, after speaking with the defendant, did you have
an opportunity to speak with his father, Elias Gaitan?

Detective Lucio: Actually, his father came in, and if I could look at my report, I
believe his father came in the following day wanting to talk to me about his son's
arrest….Yeah, it was on Monday. His dad showed up at the front lobby wanting to
talk to me.

Counsel (State): And did you speak with him?

Detective Lucio: Yes, I did.

Counsel (State): And after, as you were talking with him, did he make any
requests of you?

Detective Lucio: He told me that he couldn't believe that his son wouldn’t have
done that, that, you know, and that if he spoke to his son that his son would tell
him the truth. I told him if he wanted to speak to him, he said yes. I said I would
have to check with my supervisor to see if that would be all right.

2 RR 88, 13-25; 2 RR 89, 1-6. Thus, it is evident that Detective Lucio did not

solicit the assistance of Appellant’s father to further his investigation. There is no

evidence which suggests that Appellant’s father was trying to aid the Brownsville

Police Department in any way, but was merely concerned about the welfare of his

son. Further, Detective Lucio testified that he did not tell Mr. Gaitan what to ask


                                         13 
                                           
Appellant, nor did he request for Mr. Gaitan to speak with Appellant. 2 RR 90, 14-

19. In fact, it is apparent from the uncontroverted facts in the record that during

this conversation, Appellant’s father was not conducting an investigation in any

official capacity. Therefore, Appellant’s father was not acting as a state agent

during this recorded conversation with Appellant and Art. 38.22 of the Texas Code

of Criminal Procedure simply does not apply to its admissibility. Thus, the trial

court was correct in admitting Appellant’s second statement into evidence.


       c. The Statements made between Appellant and Detective Lucio in the
          Elevator are Admissible because Appellant initiated the
          communication with Law Enforcement


      Article 38.22, the Texas Confession Statute, generally precludes use of

statements which result from custodial interrogation absent compliance with

procedural safeguards consistent with Miranda. Tex. Code Crim. Proc. Ann. art.

38.22 § 2; e.g., Shiflet v. State, 732 S.W.2d 622 (Tex.Crim.App.1985). But Article

38.22 § 5 specifically exempts statements which do not “stem from custodial

interrogation,” statements which are “res gestae of the arrest or the offense” and all

voluntary statements, whether or not they result from custodial interrogation.

      An accused who has expressed a desire to deal with the police only through

counsel is not subject to further interrogation until counsel has been made

available, unless the accused “initiates further communication, exchanges, or


                                         14 
                                           
conversations with the police.” Edwards v. Arizona, 451 U.S. 477, 485 (1981). If

the police initiated the communication, then any subsequent waiver of counsel is

invalid, whether it is knowing or voluntary. Holloway v. State, 780 S.W.2d 787,

789-90 (Tex.Crim.App.1989). If, however, the suspect initiates communications

with the police and subsequently waives his Fifth Amendment rights, then

interrogation without counsel is constitutional. Id. at 789.      When an accused

waives his right to counsel by initiating communication with police or law

enforcement officials, “the law requires ... that the contact initiated by the accused

must be of a type that evinces a willingness and desire for a generalized discussion

about the ongoing investigation.”       Baldree v. State, 784 S.W.2d 676, 686

(Tex.Crim.App.1989). A valid waiver of the right to counsel cannot be established

by showing that the accused merely responded to further police-initiated custodial

interrogation. State v. Consaul, 960 S.W.2d 680, 688 (Tex.App.-El Paso 1997, pet.

dism'd).

      The controlling issue here is whether the police or Appellant initiated the

communication that led to Appellant’s third statement. The chain of events is

undisputed and the only question is whose actions “initiated” communication. The

United States Supreme Court has defined “interrogation” as follows:

      [T]he term “interrogation” under Miranda refers not only to express
      questioning, but also to any words or actions on the part of the police
      (other than those normally attendant to arrest and custody) that the

                                         15 
                                           
      police should know are reasonably likely to elicit an incriminating
      response from the suspect. The latter portion of this definition focuses
      primarily upon the perceptions of the suspect, rather than the intent of
      the police. A practice that the police should know is reasonably likely
      to evoke an incriminating response from a suspect thus amounts to
      interrogation. But, since the police surely cannot be held accountable
      for the unforeseeable results of their words or actions, the definition of
      interrogation can extend only to words or actions on the part of police
      officers that they should have known were reasonably likely to elicit
      an incriminating response.

    Rhode Island v. Innis, 446 U.S. 291, 301 (1980). Pursuant to the rule in Rhode

Island v. Innis, Detective Lucio had no reason to know that informing Appellant

that he could meet with him after he was appointed an attorney would result in

Appellant eliciting an incriminating response. Case law emphasizes that general

and routine questions do not constitute an interrogation.        Jones v. State, 795

S.W.2d 171, 174 n. 3 (Tex.Crim.App.1990).            Further, offhand remarks, not

designed to elicit any kind of response, do not constitute an interrogation. Innis,

446 U.S. at 303; Janecka v. State, 739 S.W. 2d 813, 828-29 (Tex. Crim. App.

1987). From Appellant's perspective, the detective's remark could not possibly

have amounted to an interrogation.        Detective Lucio was merely informing

Appellant as to his availability to speak with him once counsel was appointed and

could be present. Furthermore, Appellant volunteered the res gestae statements

that followed, without any prompting from the authorities. Appellant clearly stated

to Detective Lucio that he wanted to work out a deal with the State, that he was not

                                         16 
                                           
forceful with his daughter and that the sexual acts did not occur as often as she

stated that they did. 2 RR 94, 8-9. This was done not in an interrogation room or

otherwise intimidating location that could conceivably have pressured Appellant

into making an incriminating statement, but in an elevator on the way back to

Appellant’s jail cell. Appellant's statement that he wanted to work out a deal with

the State indicated a willingness and a desire on the part of an accused to open up a

more generalized discussion relating directly or indirectly to the investigation.

Further, Detective Lucio’s subsequent statement that “once [Appellant] had his

attorney and wished to speak with him, he would be available,” shows his intent to

close the discussion with Appellant until his attorney was present. Thus, the record

reflects that Detective Lucio was not attempting to elicit any sort of incriminating

response while he was in the elevator with Appellant. Therefore, Appellant’s third

statement was a voluntarily initiated communication with law enforcement, did not

stem from custodial interrogation, and was correctly admitted into evidence by the

trial court. Appellant’s first issue should be overruled.

B. Trial counsel did not provide ineffective assistance of counsel when she
   failed to object to previously excluded evidence

       a. Standard of Review and Applicable Statutory Law

      The Sixth Amendment to the United States Constitution and section ten of

Article 1 of the Texas Constitution guarantee individuals the right to assistance of


                                          17 
                                            
counsel in a criminal prosecution. U.S. CONST. amend. VI; TEX. CONST. art. 1 §10.

The right to counsel requires more than the presence of a lawyer, it necessarily

requires the right to effective assistance. McMann v. Richardson, 397 U.S 759,

771 (1970); Powell v. Alabama, 287 U.S. 45, 57 (1932). However, the right does

not provide a right to errorless counsel, but rather to objectively reasonable

representation. Roberston v. State, 187 S.W. 3d 475, 483 (Tex. Crim. App. 2006).

A claim of ineffective assistance of his counsel is analyzed under the Strickland

standard. Strickland v. Washington, 466 U.S. 668, 687 (1984). In order to prevail

on a claim of ineffective assistance of counsel, Appellant must demonstrate that:

(1) his lawyer’s performance was deficient, i.e. that the lawyer made errors so

serious that he was not functioning as the “counsel” guaranteed by the Sixth

Amendment, and (2) the errors of counsel were so serious that there exists a

reasonable probability that, but for counsel's errors, the result of the proceedings

would have been different. See Strickland, 466 U.S. at 687, 694.

       b. Appellant has not satisfied his burden of proving Ineffective
          Assistance of Counsel under Strickland

      An appellate court must make a strong presumption that counsel’s

performance fell within the wide range of reasonably professional assistance.

Robertson, 187 S.W. 3d at 483 (citing Strickland, 466 U.S. at 689). In order for an

appellate court to find that counsel was ineffective, counsel’s deficiency must be

affirmatively demonstrated in the trial record; the court must not engage in

                                         18 
                                           
retrospective speculation. Thompson v. State, 9 S.W. 3d 808, 81 (Tex. Crim. App.

1999). “It is not sufficient that Appellant show, with the benefit of hindsight, that

his counsel’s actions or omissions during trial were merely of questionable

competence.” Mata v. State, 226 S.W. 3d 425, 430 (Tex. Crim. App. 2007). When

such direct evidence is not available, the court should assume that counsel had a

strategy if any reasonably sound strategic motivation can be imagined. Garcia v.

State, 57 S.W. 3d 475, 483 (Tex. Crim. App. 2001). In making an assessment of

effective assistance of counsel, an appellate court must review the totality of the

representation and the circumstances of each case without the benefit of hindsight.

Robertson v. State, 187 S.W. 3d 475, 483 (Tex. Crim. App. 2006). A single error

will not typically result in a finding of ineffective assistance of counsel. Vasquez

v. State, 830 S.W. 2d 948, 951 (Tex. Crim. App. 1992).

      In order to satisfy the first prong of Strickland, Appellant must prove, by a

preponderance of the evidence, that trial counsel’s performance fell below an

objective standard of reasonableness under the prevailing professional norms.

Appellant has failed to meet this burden. Although it is true that trial counsel for

Appellant failed to object to the previously suppressed statement, “an appellate

court should be especially hesitant to declare counsel ineffective based upon a

single alleged miscalculation during what amounts to otherwise satisfactory

representation…whether those actions were of strategic design or the result of


                                         19 
                                           
negligent conduct. Thompson v. State, 9 S.W. 3d 808, 814 (Tex. Crim. App.

1999).

         Moreover, even if this Honorable Court was to find that trial counsel’s

performance was deficient, Appellant has not shown that but for the counsel’s

errors, the result of the proceedings would have been different. To prove that

Appellant was prejudiced, Appellant must show that there is a reasonable

probability, or a probability sufficient to undermine confidence in the outcome of

trial.   Admission of Appellant’s first statement was in no way critical to the

outcome of the case. Although this statement was initially suppressed in a pretrial

motion, Appellant did not make any direct admissions during his conversation with

Detective Lucio. In fact, during testimony in the motion to suppress, trial counsel

for Appellant stated the following regarding Appellant’s first statement:

         Counsel(Appellant):        There's not a straightforward admission.
         There's some -- Detective Lucio in his conversation with my client
         told him what the accusations were, and he goes on to state in his
         report, and I expect him to testify that my client didn't deny them, and
         they are going to try to use his silence as an admission of guilt…

2 RR. 87, 3-9. The second two admissions of Appellant, which were deemed

admissible by the trial court, were much more damaging to Appellant’s case.

During Appellant’s conversation with his father, direct admissions were made by

Appellant. 2 RR 90, 7-9. Appellant did not deny the allegations made against him

and informed his father that his actions were not forceful against his daughter. 2


                                           20 
                                             
RR 90, 11-13.     Further, during the third statement, which occurred between

Appellant and Detective Lucio, Appellant again confirmed that he was not

foreceful with his daughter, that the sexual acts did not occur as often as she stated

that they did, and that he wanted to work out a deal with the State. 2 RR 94, 8-9.

Thus, it is hard to say how Appellant’s silence during the first statement prejudiced

Appellant when the jury was able to consider direct admissions made by Appellant

regarding his daughter’s accusations.

      Further, besides the admission of these statements, there was an

overwhelming amount of evidence which proved Appellant’s guilt. During trial on

the merits, the State introduced into evidence two letters from Appellant to the

victim. 4 RR 37, 10. In these letters, Appellant asked the victim to create a video

recanting her statements and instructed her not to speak with any of the State’s

attorneys.   4 RR 42, 15-17.       Testimony from Johanna Frausto, a forensic

interviewer employed at the Cameron County Child Advocacy Center, was also

heard by the jury. 3 RR 129, 4-5. Through this testimony, the State was able to

show the victim’s video statement detailing the extent of the sexual abuse that she

endured. 3 RR 142, 6-12. The State was also able to show that the victim had

endured physical trauma to her hymen through the testimony of Goldie Stralder, a

CART nurse who worked at Valley Baptist Medical Center and examined the

victim after the outcry was made. 3 RR 74, 17-23. After considering all of the


                                         21 
                                           
available evidence, the jury entered a guilty verdict of all counts as they were

alleged in the indictment.    CR p. 143-146.      Due to the amount of evidence

introduced by the State at trial, it is difficult to say that Appellant was harmed by

trial counsel’s failure to object to Appellant’s reaction to the initial interview by

Detective Lucio. The admission of Appellant’s silence was simply not critical to

the outcome of the case. Since Appellant has not shown that trial counsel’s failure

to object to previously excluded evidence would have led to a different outcome in

this case, Appellant has not met his burden of establishing that he received

ineffective assistance of counsel. Therefore, Appellant’s second point of error

should be overruled.

                                      Prayer

      WHEREFORE, PREMISES CONSIDERED, The State prays this

Honorable Court will affirm the trial court’s ruling when it denied Appellant’s

motion to suppress the second and third set of statements that were introduced at

trial. The State also prays this Honorable Court will find that Appellant’s trial

counsel was not ineffective when she failed to object to previously excluded

evidence, and deny any and all relief requested by Appellant on these grounds.

                                               Respectively Submitted,
                                               Luis V. Saenz
                                               County and District Attorney

                                               __________________________
                                               Kristine N. Trejo
                                         22 
                                           
                                                Assistant District Attorney
                                                Cameron County, Texas
                                                State Bar No. 24091764


                                 Certificate of Compliance

         I certify that this document contains 6,508 words (counting all parts of the

document). The body text is in 14 point font, and the footnote text is in 12 point

font. 

                                                     ___________________
                                                     Kristine N. Trejo


                                Certificate of Service

         I certify that a copy of the foregoing State's Appellate Brief was served in

compliance with Tex. R. App. P. 9.5 on this the 3rd day of December 2015, to the

following attorney of record for Appellant, Abraham Parra, by email.

Joseph Moreno
23409 El Paso Drive
Harlingen, Texas 78552
(F) (210) 247-9433
(P) (956) 536-8359
(E) j_moreno_02@yahoo.com



                                                     ____________________
                                                     Kristine N. Trejo 
 




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