                                  IN THE
                          TENTH COURT OF APPEALS

                                 No. 10-08-00002-CR

ISMAEL DELEON LUNA,
                                                           Appellant
v.

THE STATE OF TEXAS,
                                                           Appellee



                           From the 249th District Court
                              Johnson County, Texas
                              Trial Court No. F41918


                                       OPINION


      Appellant Ismael DeLeon Luna appeals his conviction for two counts of felony

delivery of a controlled substance (greater than one gram but less than four grams) in a

drug free zone and one count of felony possession of a controlled substance (over 400

grams) in a drug free zone. A jury assessed ten-year and twenty-year prison sentences,

respectively, for the first two counts and a thirty-year prison sentence and $15,000 fine

for the third count. We will affirm.
          In his first issue, Luna contends that the trial court erred by denying his motion

to suppress and admitting his videotaped statement into evidence. Luna argues that

the statement was obtained when police continued to question him after he had

asserted his Fifth Amendment right to remain silent.

          The right to terminate questioning is among the procedural safeguards that

Miranda establishes. Miranda v. Arizona, 384 U.S. 436, 473-74, 86 S.Ct. 1602, 1627-28, 16

L.Ed.2d 694 (1966). This right, which safeguards the Fifth Amendment right to remain

silent, requires the police to immediately cease custodial interrogation when a suspect

“indicates in any manner, at any time prior to or during questioning, that he wishes to

remain silent.” Ramos v. State, 245 S.W.3d 410, 418 (Tex. Crim. App. 2008) (quoting

Miranda, 384 U.S. at 473-74, 86 S.Ct. at 1627). The suspect does not need to use any

particular word or phrase to invoke the right to remain silent. Watson v. State, 762

S.W.2d 591, 597 (Tex. Crim. App. 1988). Any declaration of a desire to terminate the

contact or inquiry should suffice. Ramos, 245 S.W.3d at 418. The suspect need not object

to further questioning in order to protect the right to remain silent. Watson, 762 S.W.2d

at 599.

          The threshold question is whether the suspect invoked his right to silence.

Ramirez v. State, 44 S.W.3d 107, 110 (Tex. App.—Austin 2001, no pet.). An interrogating

officer need not stop his questioning unless the suspect’s invocation of rights is

unambiguous. Ramos, 245 S.W.3d at 418; Dowthitt v. State, 931 S.W.2d 244, 257 (Tex.

Crim. App. 1996). Ambiguity exists when the suspect’s statement is subject to more

than one reasonable interpretation under the circumstances.          Williams v. State, 257

Luna v. State                                                                         Page 2
S.W.3d 426, 433 (Tex. App.—Austin 2008, pet. ref’d). The officer is not required to

clarify ambiguous remarks; however, an officer does not violate a suspect’s right to

remain silent when he attempts to clarify whether the suspect wishes to remain silent,

and the suspect thereafter chooses to continue to speak about the offense. Ramos, 245

S.W.3d at 418; Williams, 257 S.W.3d at 432-33. In determining whether the right to

remain silent was unambiguously invoked, courts look to the totality of the

circumstances. Watson, 762 S.W.2d at 597.

        Following Luna’s arrest, Officer Mark Goetz of the Cleburne Police Department

met with him. Luna indicated that he was having trouble understanding Goetz, so

Goetz asked Maria Herrada, who is fluent in both Spanish and English, to translate.

The transcript of a portion of the conversation follows:

              MR. GOETZ: Tell him that he is, in fact, under arrest and before
        that we have to read him his rights.

                (Herrada interpreting)

              MR. GOETZ: Would you be kind enough to read those to him and
        ask him if he understands each of those rights.

                (Herrada-Luna converse in Spanish)

               MS. HERRADA: Okay. He’s talking about -- when I said if he’s
        going to, you know, stay, if he’s going to be silent or if he’s going to speak
        to you in the last one, and he said, Talk about what? I said, Well, I need
        for you to stay yes or no. And he said, All right. And then say -- and then
        he wants to know what do you want to talk to him about.

               MR. GOETZ: I want to talk to him about drugs. I want to talk to
        you about the drugs that were over at your house and what’s going on
        over there.

                MR. LUNA: I just -- (unintelligible)

Luna v. State                                                                            Page 3
              MR. GOETZ: Let me make sure we’re all on the same page here.
        Do you understand the rights she said to you?

                MR. LUNA: Yeah.

              MR. GOETZ: All right. Are you willing to talk to me about what’s
        going on over there at your house?

                (Herrada interpreting)

Both parties agree that Luna shook his head from side to side and replied, “No puedo,”

which both parties agree is properly translated as “I can’t.” Goetz then stated, “Tell him

we’re not asking him about who he’s getting his dope from right now. I want to know

what’s going on at his house.” The interpreter translated that for Luna, who then made

several incriminating statements.

        Luna argues that when he said, “No peudo” (i.e., “I can’t”), he unambiguously

invoked his right to remain silent, but we agree with the State’s contention that Luna’s

response was ambiguous.

        Goetz interpreted Luna’s response not as an unambiguous invocation of his right

to remain silent but only as an inability to discuss the source of the drugs found at the

house. This is a plausible interpretation of the statement under the circumstances.

When Herrada first read Luna his Miranda rights, Luna expressed a willingness to talk

to Goetz and asked what Goetz wanted to talk to him about. When Goetz then asked

Luna if he was willing to talk to him about what was going on at his house, Luna did

not say, “No.”       Instead, he responded, “No peudo” (i.e., “I can’t”).        A plain

interpretation of this response indicates that Luna was not necessarily expressing a


Luna v. State                                                                       Page 4
desire to remain silent but rather an inability to talk to Goetz for some reason. The

response was thus ambiguous, and Goetz’s continued questioning was not violative of

Luna’s right to remain silent. See, e.g., United States v. Sanchez, 866 F. Supp. 1542, 1559

(D. Kan. 1994) (holding statement “I can’t say nothing” was ambiguous and thus not

violative of defendant’s right to remain silent); People v. Montano, 226 Cal. App. 3d 914,

931, 277 Cal. Rptr. 327, 334 (1991) (stating defendant’s response “I can’t” when asked

“Can you tell us what happened?” did not amount to an invocation of his right to

remain silent). We overrule Luna’s first issue.

        In his second issue, Luna contends that the trial court erred during the

punishment phase of the trial in admitting evidence about certain extraneous bad acts

because the State failed to provide proper notice under article 37.07, section 3(g) of the

Code of Criminal Procedure. The State responds that Luna failed to preserve this issue

for appellate review; the State substantially complied with the notice provision of article

37.07, section 3(g); and even if the trial court erred in admitting the testimony, the error

was harmless. Assuming without deciding that this issue is preserved for appellate

review and that the trial court erred in admitting the testimony, we agree with the State

that the error was harmless.

        Error in admitting evidence with insufficient notice under article 37.07, section

3(g) is nonconstitutional error. Apolinar v. State, 106 S.W.3d 407, 414 (Tex. App.—

Houston [1st Dist.] 2003), aff’d on other grounds, 155 S.W.3d 184 (Tex. Crim. App. 2005);

Roethel v. State, 80 S.W.3d 276, 281 (Tex. App.—Austin 2002, no pet.).                    A

nonconstitutional harm analysis for statutory violations is performed under Texas Rule

Luna v. State                                                                         Page 5
of Appellate Procedure 44.2(b). See TEX. R. APP. P. 44.2(b); Gray v. State, 159 S.W.3d 95,

97-98 (Tex. Crim. App. 2005). To assess nonconstitutional errors, we examine whether

the purpose of the statute or rule violated was thwarted by the error. Roethel, 80 S.W.3d

at 281 (citing Ford v. State, 73 S.W.3d 923, 925-26 (Tex. Crim. App. 2002)). The purpose

of article 37.07, section 3(g) is to avoid unfair surprise and to enable a defendant to

prepare to answer the extraneous offense evidence. Apolinar, 106 S.W.3d at 414-15;

Roethel, 80 S.W.3d at 282; Nance v. State, 946 S.W.2d 490, 493 (Tex. App.—Fort Worth

1997, pet. ref’d). This analysis requires examining the record to determine whether the

deficient notice resulted from prosecutorial bad faith or prevented the defendant from

preparing for trial. Roethel, 80 S.W.3d at 282. In determining the latter, appellate courts

look at whether the defendant was surprised by the substance of the testimony and

whether that affected his ability to prepare cross-examination or mitigating evidence.

Id.

        Luna does not argue that the admission of the complained-of evidence was the

result of prosecutorial bad faith, nor does he argue unfair surprise. The record reflects

that at least two weeks prior to trial, the State amended its notice of intent to introduce

evidence of extraneous matters to include the following: “On or about multiple times

and on multiple dates in Johnson County, Texas beginning when the defendant Ismael

Luna’s son was approximately two years old, the defendant Ismael Luna sold illegal

drugs.” This same paragraph also appeared in the State’s second, third, and fourth

amended notices.     During the punishment phase of the trial, Luna’s former wife

testified that Luna sold cocaine for about a six-month period beginning in 1997 when

Luna v. State                                                                        Page 6
her son was two years old, and, thereafter, he stopped selling drugs until the beginning

of 2005. We conclude that Luna did not suffer harm because he claims no surprise as to

the testimony and he does not claim his ability to prepare cross-examination or

mitigating evidence was affected. See Roethel, 80 S.W.3d at 282. We overrule Luna’s

second issue.

        Having overruled both of Luna’s issues, we affirm the trial court’s judgment.



                                                REX D. DAVIS
                                                Justice

Before Chief Justice Gray,
       Justice Reyna, and
       Justice Davis
Affirmed
Opinion delivered and filed August 26, 2009
Publish
[CRPM]




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