Opinion issued June 11, 2015




                                     In The

                              Court of Appeals
                                     For The

                          First District of Texas
                            ————————————
                              NO. 01-14-00579-CR
                           ———————————
                         MAYRA FLORES, Appellant
                                        V.
                      THE STATE OF TEXAS, Appellee


                   On Appeal from the 339th District Court
                           Harris County, Texas
                       Trial Court Case No. 1280239


                         MEMORANDUM OPINION

      Appellant, Mayra Flores, was charged by indictment with murder. 1 The jury

found her guilty, and the trial court assessed punishment at 25 years’ confinement.




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      See TEX. PENAL CODE ANN. § 19.02(b) (Vernon 2011).
In one issue, Appellant argues the trial court abused its discretion by admitting the

two audio recordings of her custodial interrogation.

      We affirm.

                                   Background

      On October 3, 2010, Appellant and her boyfriend, Francisco Castellano,

were arguing.      In the course of the argument, Appellant stabbed Castellano,

ultimately killing him.     Officers W. Kuhlman and R. Hunter interrogated

Appellant. Officer Kuhlman recorded the interview. Thirty-six minutes into the

interrogation, the recording device stopped. About 20 minutes after that, Officer

Kuhlman began recording again. The interrogation lasted for another 53 minutes

before the recording device stopped again.

      At trial, Appellant sought to suppress the admission of the two audio

recordings, claiming the recording device cutting off between the first and second

recording prevented the State from establishing the admissibility requirements for

both recordings.     The trial court overruled the objection and admitted both

recordings.

              Motion to Suppress Interrogation Audio Recordings

      In her sole issue on appeal, Appellant argues the trial court abused its

discretion by admitting the two audio recordings of her custodial interrogation.




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A.    Standard of Review

      We review a trial court’s denial of a motion to suppress under a bifurcated

standard of review. Turrubiate v. State, 399 S.W.3d 147, 150 (Tex. Crim. App.

2013). We review the trial court’s factual findings for abuse of discretion and

review the trial court’s application of the law to the facts de novo. Id. Almost total

deference should be given to a trial court’s determination of historical facts,

especially those based on an evaluation of witness credibility or demeanor.

Gonzales v. State, 369 S.W.3d 851, 854 (Tex. Crim. App. 2012). At a suppression

hearing, the trial court is the sole and exclusive trier of fact and judge of the

witnesses’ credibility and may choose to believe or disbelieve all or any part of the

witnesses’ testimony. Maxwell v. State, 73 S.W.3d 278, 281 (Tex. Crim. App.

2002); State v. Ross, 32 S.W.3d 853, 855 (Tex. Crim. App. 2000).

      Where, as here, a trial judge does not make explicit findings of fact, we

review the evidence in the light most favorable to the trial court’s ruling. Walter v.

State, 28 S.W.3d 538, 540 (Tex. Crim. App. 2000). We will defer to the trial

court’s fact findings and not disturb the findings on appeal unless the trial court

abused its discretion in making a finding not supported by the record. Cantu v.

State, 817 S.W.2d 74, 77 (Tex. Crim. App. 1991).




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B.    Analysis

      Appellant’s objection to the two audio recordings is based on article 38.22 of

the Texas Code of Criminal Procedure. See TEX. CODE CRIM. PROC. ANN. art.

38.22 (Vernon Supp. 2014). Section three of article 38.22 establishes certain

requirements for the admissibility of the recording of a custodial interrogation. Id.

art. 38.22, § 3(a). One of the requirements is “the recording device was capable of

making an accurate recording, the operator was competent, and the recording is

accurate and has not been altered.” Id. art 38.22, § 3(a)(3). Appellant argues that,

because the recording device stopped recording and left a 20-minute portion of the

interrogation unrecorded, the recording of the interrogation is not accurate.

      As an initial matter, we disagree with Appellant’s characterization of the

length of time Appellant and Officers Kuhlman and Hunter talked after the first

recording stopped. Appellant asserts in her brief that they continued to talk for 20

minutes after the recorder stopped, that they discussed the events surrounding

Castellano’s death, and that she made exculpatory statements that are not otherwise

in the recordings. While Appellant testified to these facts during her examination

and cross-examination at trial, this testimony was not before the trial court at the

time Appellant raised the motion to suppress earlier in the trial. Because this

evidence was not before the trial court, it is not part of our appellate review. See

Weatherred v. State, 15 S.W.3d 540, 542 (Tex. Crim. App. 2000) (holding



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appellate court reviews trial court’s ruling on admissibility of evidence “in light of

what was before the trial court at the time the ruling was made”).

      The only description of events between the two recordings that was before

the trial court at the time of the ruling comes from the second recording. At the

start of the recording, Officer Kuhlman states that, after the first recording stopped,

everyone stopped talking, Appellant took a restroom break, and everyone got

something to drink. Appellant was present when Officer Kuhlman made that

statement and did not make any corrections to those statements. After Officer

Kuhlman read Appellant her statutory warning again, Officer Hunter identified the

last topic discussed when they “left off”, which concerned when Appellant and

Castellano had kids.     That matched what Officer Hunter and Appellant were

discussing at the time the first recording stopped.

      In Quinones, the defendant claimed his recorded statement was inadmissible

because, in part, “the tape had been altered by [a] fifteen second tapeover.”

Quinones v. State, 592 S.W.2d 933, 943 (Tex. Crim. App. 1980). The Court of

Criminal Appeals held that “any alteration in a tape [does not] render[] the tape per

se inadmissible. If the alteration is accidental and is sufficiently explained so that

its presence does not affect the reliability and trustworthiness of the evidence, the

recording can still be admitted.” Id. at 944.




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      Quinones was decided under a framework that predates article 38.22. See id.

at 943 (citing Edwards v. State, 551 S.W.2d 731, 733 (Tex. Crim. App. 1977)).

Since the enactment of article 38.22, however, the Court of Criminal Appeals has

confirmed that inadvertent anomalies that do not affect the overall reliability of the

recording do not constitute the impermissible sort of alteration contemplated by

section 3 of article 38.22. See Maldonado v. State, 998 S.W.2d 239, 244–46 (Tex.

Crim. App. 1999) (citing CRIM. PROC. art. 38.22, § 3; Quinones, 592 S.W.2d at

944); see also Martines v. State, 371 S.W.3d 232, 244 (Tex. App.—Houston [1st

Dist.] 2011, no pet.) (citing Maldonado and Quinones for same proposition).

      In Maldonado, the defendant complained of a three-second and a one-second

portion of the recording of his statement that had been “over-recorded.” Id. at 244.

The Court of Criminal Appeals noted there was no evidence that the over-

recordings were intentional and they did not occur during his admission to killing

the victim. Id. at 244–45. Based on this, the court held, “There is adequate

evidence here to support the . . . conclusion that the anomalies were merely

inadvertent and did not affect the overall reliability of the tape.” Id. at 245.

      The same is true here. The evidence in the record at the time of the trial

court’s ruling established that the tape stopped recording on accident, that the

parties stopped talking after the recording stopped, and that the parties were

discussing incidental matters at the time the recording stopped. We hold this does



                                           6
not undermine the reliability of the recording. See Maldonado, 998 S.W.2d at

245–46; Quinones, 592 S.W.2d at 944.

      We overrule Appellant’s sole issue.

                                   Conclusion

      We affirm the judgment of the trial court.




                                               Laura Carter Higley
                                               Justice

Panel consists of Chief Justice Radack and Justices Higley and Massengale.

Do not publish. TEX. R. APP. P. 47.2(b).




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