                                    In The
                               Court of Appeals
                      Seventh District of Texas at Amarillo

                           Nos. 07-11-00039-CR, 07-11-00040-CR


                         MARTHA HERNANDEZ, APPELLANT

                                           V.

                          THE STATE OF TEXAS, APPELLEE

                           On Appeal from the 331st District Court
                                    Travis County, Texas
                   Trial Court Nos. D-1-DC-09-500099, D-1-DC-09-900170,
                              Honorable Bob Perkins, Presiding

                                    January 17, 2014

                                       OPINION
                 Before QUINN, C.J., and CAMPBELL and HANCOCK, JJ.


      A jury convicted appellant Martha Hernandez of murder1 and tampering with or

fabricating physical evidence2 and sentenced her to terms in prison of sixty and twenty

years respectively.    The trial court ordered that the sentences run concurrently.

Through four issues she complains on appeal that the trial court erred in failing to


      1
          TEX. PENAL CODE ANN. § 19.02 (West 2011).
      2
          TEX. PENAL CODE ANN. § 37.09 (West Supp. 2013).
suppress her recorded statement and certain testimony from her sister-in-law. We will

overrule each of appellant‟s issues and affirm the judgments of the trial court.


                                        Background


       Appellant does not challenge the sufficiency of the evidence supporting her

convictions so we will discuss only so much of the evidence as necessary to the

disposition of the appeal. In the early morning of February 25, 2009, a burning human

corpse was discovered beside a road near an intersection in rural Travis County. A

homicide investigation ensued. Among the physical evidence found at the scene was a

military identification card belonging to appellant.


       Forensic analysis showed the body was that of 21-year-old Christy Lynne

Espinosa. The medical examiner determined that at the time of death Espinosa had a

blood alcohol level of 0.28 and had ingested marijuana and several prescription

medications. But the drug concentrations were at non-lethal levels. The examiner also

noted Espinosa had sustained a non-lethal neck injury before death. Based on the

autopsy and toxicology results the medical examiner concluded Espinosa was dead

when the fire began. The cause of death, in the medical examiner‟s opinion, was

suffocation. Tests of Espinosa‟s clothing and of soil underneath her body showed it had

been doused with gasoline before being ignited.


       Through their investigation, officers learned appellant was married to Kenneth

Hernandez. But attempts to contact appellant by telephone were not successful. By

March 5, 2009, officers were in communication with Kenneth‟s sister, Rebecca

Hernandez. Rebecca told them appellant was in Mexico. Rebecca indicated to law


                                              2
enforcement that she and Kenneth wished to travel to Mexico and return appellant to

the United States. Suppression hearing evidence showed officers did not authorize the

trip to Mexico for appellant‟s return but made arrangements for her arrest on an

unrelated warrant after she entered the United States.


      On March 7, appellant was arrested in Eagle Pass. Authorities surrendered her

to Travis County deputies to whom she gave a recorded statement before returning to

Austin in their custody. Appellant gave officers a second statement on March 8 and a

third statement on March 9. The third interview began after 11:00 p.m. and continued

until about 3:00 a.m.


      In her March 7 recorded statement, appellant said she went to several 6th Street

bars during the evening of February 24 and early morning hours of February 25. She

denied she was with her husband and claimed she was driven home by individuals she

met that evening. She denied knowing Espinosa. Asked about her identification card

lying next to Espinosa‟s body, she said her purse had been stolen.


      By her March 8 statement, appellant acknowledged she and her husband had

gone to 6th Street together, to celebrate Mardi Gras, and met Espinosa outside a bar.

According to appellant‟s statement, after leaving one bar and being denied admittance

to another because it was full, the three went to Kenneth‟s vehicle for cigarettes. They

left in the car and drove to a convenience store on 51st Street, where Kenneth bought

orange juice which they mixed with alcohol from a bottle in the car. They drove around,

traveling at one point through a toll booth on Highway 183. After they realized Espinosa

had lost consciousness, Kenneth bought a gasoline can and gasoline at another



                                           3
convenience store, drove to Hog Eye Road, removed Espinosa from the car, and

poured gasoline over her body. At his direction, appellant located a cigarette lighter and

gave it to Kenneth, who lit the body afire.


       The March 8 statement also included the information that Kenneth contacted

appellant after Espinosa‟s body was discovered. He told appellant she was in trouble

and that she should say they had not been together on the evening of the 24th.


       Appellant‟s March 9 statement added details regarding Espinosa‟s death. By this

statement, appellant said that Espinosa became sick in the car after they left the

convenience store on 51st Street. Early in this interview appellant continued to maintain

that Espinosa simply died after becoming unconscious. Her story changed, however,

after a second detective, Craig Smith, spoke with her.             She told that when she

commented to her husband that Espinosa had grown quiet, he said he had given her

some “bars.”3 She also told that both she and her husband had placed their hands over

Espinosa‟s mouth. She further admitted that she “might have hurt [Espinosa‟s] head” by

pulling her back to place her hand on her face.4 Appellant said, however, that as her

husband continued to place his hand over Espinosa‟s mouth, she “just put [her] head

down and blocked everything out.” She denied killing Espinosa and said she acted out

of fear of her husband. Although she acknowledged there was “wrapping paper” in the

car, she denied it was used to suffocate Espinosa.




       3
           In testimony at trial an officer agreed that “bars” is a street name for Xanax.

       4
       Appellant said that by that point in their drive Espinosa was in the front
passenger seat and appellant in the back.

                                                4
       Appellant was indicted and moved to suppress the recorded statements.

Following several pre-trial hearings, all grounds alleged for suppression were denied.

The case proceeded to trial where a jury found appellant guilty of murder and tampering

with physical evidence, and assessed punishment as noted.


                                         Analysis


       On appeal, appellant‟s suppression issues are limited to her March 9 statement.

In her first three issues, appellant contends the trial court erred by denying the motion to

suppress the March 9 statement because: (1) the statement was rendered involuntary

by detective Smith‟s repeated references during questioning to appellant‟s separation

from her children, which violated her due process rights; (2) the statement was rendered

involuntary by the detective‟s promises of leniency for cooperation and threats for lack

of cooperation in violation of due process; and, (3) the statement was prompted by a

promise of benefit in violation of article 38.21 of the Code of Criminal Procedure.


Issues One through Three


       The appellate record contains both a copy of the March 9 recording and a written

transcription. The facts surrounding taking the statement are not contested; rather, it is

the outcome on application of law to the facts which brings the parties into

disagreement. We will therefore review the trial court‟s ruling on the motion to suppress




                                             5
appellant‟s statement de novo. Oles v. State, 993 S.W.2d 103, 106 (Tex. Crim. App.

1999).5


       At the hearing on a motion to suppress a statement on the ground of

involuntariness, it is the State‟s burden to prove by a preponderance of the evidence

that the defendant‟s statement was given voluntarily. Tello v. State, No. 14-06-00525-

CR, 2007 Tex. App. LEXIS 6658, at *5 (Tex. App.—Houston [14th Dist.] Aug. 21, 2007,

pet. refused) (mem. op., not designated for publication) (citing Alvarado v. State, 912

S.W.2d 199, 211 (Tex. Crim. App. 1995)). See also Gentry v. State, 770 S.W.2d 780,

789 (Tex. Crim. App. 1988) (“The burden of proving that a confession was rendered

voluntarily is on the state”).


       “A statement is obtained in violation of constitutional due process only if the

statement is causally related to coercive government misconduct.” Contreras v. State,

312 S.W.3d 566, 574 (Tex. Crim. App. 2010) (citing Colorado v. Connelly, 479 U.S. 157,

163-64, 107 S.Ct. 515, 93 L.Ed.2d 473 (1986)). A statement is rendered involuntary if

by the coercive conduct of law enforcement a person‟s will is overborne and her

capacity for self-determination critically impaired. Contreras, 312 S.W.3d at 574 (citing

Schneckloth v. Bustamonte, 412 U.S. 218, 225-26, 93 S.Ct. 2041, 36 L.Ed.2d 854

(1973)).   Determining its voluntariness requires examination of the totality of the

circumstances under which the statement was obtained. Delao v. State, 235 S.W.3d

235, 239 (Tex. Crim. App. 2007) (citing Arizona v. Fulminante, 499 U.S. 279, 285-86,

111 S.Ct. 1246, 113 L.Ed.2d 302 (1991)). Assessing the totality of the circumstances

       5
         Cf. Miller v. Fenton, 474 U.S. 104, 110-18, 106 S.Ct. 445, 88 L.Ed.2d 405
(1985) (analyzing federal treatment of voluntariness of confession as legal rather than
factual question).

                                           6
concerns both the characteristics of the accused and the details of the interrogation.

Bustamonte, 412 U.S. at 226.


       The law permits police some use of psychological tactics to obtain the statement

of a suspect. Henderson v. Hendricks, 02-4338 (MLC), 2005 U.S. Dist. Lexis 32897 at

*31 (D.N.J. Dec. 13, 2005) (not designated for publication); Miller v. Fenton, 796 F.2d

598, 605 (3d Cir. 1986). Thus, for example, an interviewer may play on the suspect‟s

sympathies or explain that honesty may be the best policy for a suspect hoping for

leniency. Miller, 796 F.2d at 605; Rachlin v. United States, 723 F.2d 1373, 1378 (8th

Cir. 1983) (although agents told suspect it was in his best interest to cooperate,

resulting confession was voluntary); United States v. Vera, 701 F.2d 1349, 1363-64

(11th Cir. 1983) (same). “These ploys may play a part in the suspect‟s decision to

confess, but so long as that decision is a product of the suspect‟s own balancing of

competing considerations, the confession is voluntary.” Miller, 796 F.2d at 605.


       “[C]ases in which a defendant can make a colorable argument that a self-

incriminating statement was „compelled‟ despite the fact that the law enforcement

authorities adhered to the dictates of Miranda [v. Arizona, 384 U.S. 436, 86 S.Ct. 1602,

16 L.Ed.2d 694 (1966)] are rare.” Berkemer v. McCarty, 468 U.S. 420, 433 n.20 & 433,

104 S.Ct. 3138, 82 L.Ed.2d 317 (1984). This is logical because “[t]he purposes of the

safeguards prescribed by Miranda are to ensure that the police do not coerce or trick

captive suspects into confessing, to relieve the inherently compelling pressures

generated by the custodial setting itself, which work to undermine the individual‟s will to

resist, and as much as possible to free courts from the task of scrutinizing individual



                                             7
cases to try to determine, after the fact, whether particular confessions were voluntary.”

Id. (emphasis in original, footnotes and quotation marks omitted).


      After she was returned to Austin from Eagle Pass, appellant was held at the

Travis County jail. The March 8 and March 9 interrogation sessions occurred in police

offices at another location.    Both sessions were recorded by video.      The March 8

session began about 4:30 in the afternoon and ended about 7:00 that evening. After

the session, appellant rode with officers to locations to which she said she and Kenneth

had driven with Espinosa.


      As noted, the March 9 interrogation session occurred during a four-hour period

beginning about 11:00 p.m. Detective Greg Lawson was the primary questioner during

both sessions.


      Appellant does not contend the physical circumstances of her interrogation were

unduly coercive. She points only to the facts that the March 9 session was her third

interrogation in 48 hours, and that it began at a late hour “when most individuals are

fatigued from the day.”        We see no indication from the record that appellant‟s

inculpatory statements were influenced by fatigue. During the session, she did not

complain of tiredness or any other circumstance of her questioning. When Lawson

asked appellant what she was doing before being brought to the interrogation, appellant

said she “was fixing to go lay down and read.”


      Appellant‟s brief also points to her relatively young age,6 and contains an

assertion that the content of her three statements reflects “she had a passive and easily


      6
          At the time of her three statements, she was age twenty-six.

                                             8
dominated personality.” Appellant told officers she feared and was dominated by her

husband, and her narrative reflects her actions on many occasions were influenced by

other family members. But we do not agree the record shows she was passive or easily

dominated in her dealings with the officers. To the contrary, the recordings of the

interviews contain many instances in which she disagreed with statements of her

questioners. Nor can we agree that any of her characteristics she mentions or the

general circumstances of her interrogation rendered appellant especially susceptible to

coercion.


       Appellant‟s contentions supporting her argument for exclusion of her March 9

statement arise from statements made by Detective Smith. As at the outset of the

March 7 and March 8 interrogation sessions, appellant was read the Miranda warnings.

Smith entered the room about forty-five minutes into the March 9 session after Lawson

had reviewed with appellant the substance of her March 8 statement, had further

questioned her about the precise cause of Espinosa‟s death, and had probed about

Kenneth‟s actions toward Espinosa. Lawson‟s questioning suggested Kenneth had a

sexual interest in Espinosa, and suggested Kenneth might say appellant killed Espinosa

out of jealousy.7


       Early in his questioning, Smith confronted appellant with autopsy results showing

Espinosa did not die from alcohol or drugs. Smith pressed appellant to “get past” the

“I‟m going to cover for [Kenneth], he‟s going to cover for [me]” posture, and made vague


       7
         It is worth noting that as Lawson introduced Smith to appellant, and asked if it
was “all right with you” if Smith participated in their conversation, he also reminded
appellant “you still have the right to remain silent, and you still can terminate the
interview at any time . . . .”

                                           9
references to other evidence recently discovered that “brought us back to you.” Smith

also invoked other interrogation techniques. Appellant contends that two of them had

such effect as to render her subsequent admissions involuntary. By her first issue, she

points to Smith‟s statements emphasizing the separation from her children that would

result from her failure to cooperate. By her second, she argues Smith promised she

would gain leniency by cooperation and threatened that failure to cooperate would

precipitate a report to the judge and district attorney and punishment. In these ways,

appellant contends, Smith coerced her incriminating statements.


      Before considering the effect of Smith‟s statements, we emphasize again that our

analysis must consider the totality of the circumstances under which appellant‟s

statements were given. Under that analysis, the assertedly coercive police activity is

not considered alone, but as a factor in the determination of voluntariness.       See

Fulminante, 499 U.S. at 285 (noting “but for” test based on Bram v. United States, 168

U.S. 532, 18 S.Ct. 183, 42 L.Ed. 568 (1897), does not state standard for determining

voluntariness of confession under current law); United States v. Fernandes, No. 07-

51100, 285 F. Appx. 119, 124, 2008 U.S. App. Lexis 14780 (5th Cir. 2008) (per curiam,

not designated for publication) (citing Hawkins v. Lynaugh, 844 F.2d 1132, 1140 (5th

Cir. 1988) (noting existence of a promise constitutes but one factor in the totality of

circumstances analysis and does not render a confession involuntary per se)); Miller,

796 F.2d at 608 (despite Bram, courts have treated promises as part of totality of

circumstances in assessing voluntariness of confessions).         The coercive conduct,

however, must cause the confession to render it involuntary. Colorado v. Connelly, 479

U.S. at 167; Fernandes, 285 Fed. Appx. at 124.


                                          10
       Interrogation Relating to Appellant’s Children


       In support of her argument that Detective Smith used improper references during

interrogation to separation from her children, appellant points to the detective‟s following

statements.


       That‟s why we‟ve got to make this right.          I know that you know that.
       You‟ve got kids of your own.
       I know that you are a good mom. I know that you are trying everything
       you can to take care of your kids, to take care of yourself so that you can
       take care of your kids. But right now your kids are who you need to be
       thinking about, because if you‟re not thinking about your kids, and you
       continue to not tell the truth, you‟re never going to see those kids again.
       Do you understand that? Going to prison for the rest of your life is not
       watching your kids grow up, it‟s not putting your kids through school, it‟s
       not giving you‟re (sic) their . . . (sic) their first girlfriend and boyfriend, and
       their first wife and husband, and their first kids, and being a grandma.
       You do what you do as far as taking care of it, and then you go back to
       your kids, and you get to spend some of your life with your kids. Because
       without telling the truth, you are never going to see your children again. I
       don‟t have any kids, and I can‟t imagine when I do the thought of
       something keeping me away from my kids for the rest of my life. And if I
       make a mistake, and I‟ve got to fess up to it, and I‟m not around my kids
       for whatever amount of time, at least I‟ll know I‟m coming back to them at
       some point.
       But right now, the track that you‟re on, you‟re on the track that‟s getting
       further and further and further away from those kids.
       And the path you‟re on right now is the worst path it is, because it‟s you
       going to prison for the rest of your life, and you get to see your kids
       through the little glass wall. I guess I would say you won‟t get to see
       them, because you will get to see them through a little glass wall and talk
       to them on a telephone. You‟ll never get to touch them. You‟ll never get
       to tuck them in at night. You‟ll never get to feed them breakfast again. . . .
       Citing the “primordial and fundamental value of our society” associated with the

relationship between parent and child, and the impropriety of law enforcement officers

“deliberately prey[ing] upon the maternal instinct,” in a 1981 decision the Ninth Circuit



                                               11
based its conclusion a 21-year-old defendant‟s confession was coerced and involuntary

primarily on officers‟ statements that “caused her to fear that she would not see her

child for a long time if she refused to cooperate.” United States v. Tingle, 658 F.2d

1332, 1335-36 (9th Cir. 1981).


      Other courts confronted with similar statements by police, made under different

circumstances, have not found them so coercive as to render the defendant‟s actions

involuntary. See, e.g., United States v. Kolodziej, 706 F.2d 590, 595 (5th Cir. 1983)

(consent to taped telephone call). In United States v. Santos-Garcia, the interrogating

officer told a twenty-year-old suspect, who was operating a vehicle carrying about

twenty-two pounds of methamphetamine, that his story did not make sense and his

children would be driving by the time he was released from prison. 313 F.3d 1073,

1076 (8th Cir. 2002).      The suspect then admitted knowing the vehicle contained

methamphetamine.     Id.   In analyzing the voluntariness of the confession, the court

noted he was advised of his rights, the interview lasted about twenty minutes, and the

interrogator‟s representation of the length of a prison sentence was nothing more than

“an accurate representation of [the defendant‟s] predicament.” Id. at 1079 (quotation

marks and brackets omitted) (quoting United States v. Gallardo-Marquez, 253 F.3d

1121, 1123 (8th Cir. 2001)). The court found the interrogator‟s comment did not deprive

the defendant of his ability to make an unconstrained decision to confess. Id.


      The court in Kolodziej noted that the “situation of consent . . . might well be

different if the consensual cooperation had been secured by actual threats of a physical

nature or of prosecutorial action which had no realistic foundation.” 706 F.2d at 595

(quoting United States v. Horton, 601 F.2d 319, 322-23 (7th Cir.1979)). Detective Smith

                                           12
did not tell appellant that he or the government would take her children if she did not tell

them what she knew about Espinosa‟s death. Cf. Lynumn v. Illinois, 372 U.S. 528, 534,

83 S.Ct. 917, 9 L.Ed.2d 922 (1963) (holding in pre-Miranda case that confession was

not voluntary when made after police told woman her children would be taken from her

and their state financial aid terminated if she did not cooperate). Nor did he represent to

her that she could avoid the consequences of her involvement in the death by

cooperating.


       By her unchallenged second statement, appellant had placed herself in the car

with Kenneth and Espinosa at the time of Espinosa‟s death.            It is clear from her

statements appellant had fear her husband would lie to protect himself. 8 Smith and

Lawson played on that fear, but such an interrogation strategy does not, as a matter of

law, render a confession involuntary. United States v. Ballard, 586 F.2d 1060, 1063

(5th Cir. [Fla.] 1978). Nor does their reminder to appellant of the potentially lengthy

sentence of confinement facing her if she were convicted of murder. Id.


       Considered as a whole and in the context of the entirety of the interrogation, we

find Smith‟s statements emphasizing to appellant that she faced separation from her

children were not threats of governmental action to punish a failure to cooperate but


       8
         Statements appellant made during the March 8 questioning highlight appellant‟s
distrust of her husband and her fears he would implicate her in the murder. At a critical
point during the March 8 questioning at which appellant became more forthcoming
regarding the events leading up to Espinosa‟s death, she began by referring to
statements Kenneth had made to her since the murder, and complaining to Lawson,
“And I mean I don‟t understand why he‟s lying.” From that point she launched into a
detailed recitation of events occurring before and after the murder, focusing on
Kenneth‟s treatment of her. Her narrative recitation occupies more than six single-
spaced pages of the transcript of the March 8 interrogation, interrupted only once by a
question from Lawson.

                                            13
were accurate representations of her predicament. Moreover, considering the entirety

of the circumstances facing her, we could not say these particular statements overcame

her free will and caused her to further implicate herself in the murder. See Ballard, 586

F.2d at 1063 (“[d]etermining whether a confession is voluntary requires an assessment

of human motivation and behavior. One factor, by itself, is seldom determinative”).


      Inducement to Confess by Promises and Threats


      Appellant next contends Detective Smith promised she would gain leniency by

cooperation and threatened that failing to cooperate would precipitate a report to the

judge and district attorney and punishment. She directs us to the following statements

by Detective Smith.


      [W]e‟re hoping in turn you‟re going to turn around and you‟re going to tell
      us the truth about everything that happened so that we can get
      everything figured out because Christy being dead, something has to
      happen about that, okay? And either we go the long way about finding it,
      finding out that happens, and we then go to the judge and we say, okay,
      here‟s the final product. Here‟s what we learned. And we either got
      cooperation along the way. Or we go and we say, okay, it took a little
      while, but we put this case together, and we finally got some
      cooperation, and we think that we‟ve got all of the truth and the people
      involved were cooperative in this, and realize it was a mistake. Some
      things got screwed up and now I‟m needing to talk about it because it‟s
      the right thing to do.
      I have to present something to the judge and I have to present
      something to the DA‟s office and right now, right now the DA‟s office has
      already told us, “Murder. Put them in jail and just be done. You have
      her ID at the scene. You have them together. Just be done. Be done
      with your paperwork.” But what‟s happened is we have decided that we
      need to try to talk and give you an opportunity to try and make this right.
      And the way to make it right is to say, “okay, this is exactly what
      happened and I need to be cooperative so that hopefully I can get a little
      bit of leniency through this whole thing,” alright?
      [W]e‟re trying to give you the opportunity to show that you have some
      type of compassion and that it‟s eating you up inside to not tell us the

                                           14
      truth and that you need to tell the truth so that you can show that you
      have some type of feeling left in you.
      [T]hat‟s the kind of stuff that I have to hear from you so that I can say,
      “Judge, she did the right thing.” Martha, I need you to dig yourself out of
      here.
Appellant argues the coercive aspect of Detective Smith‟s comments derives from the

threat that cooperation is rewarded while failure to cooperate is punished.


      But, again, resolution of the voluntariness question does not turn on the mere

existence of some promise or threat, but on the totality of the circumstances of the

interrogation. See Fulminante, 499 U.S. at 285; Bustamonte, 412 U.S. at 226 (noting

“significant fact” among cases cited is that none turned on the presence or absence of a

single controlling factor but instead reflected “a careful scrutiny of all the surrounding

circumstances”). Cf. George E. Dix, Promises, Confessions, and Wayne LaFave’s

Bright Line Rule Analysis, 1993 U. Ill. L. Rev. 207, 225-29 (1993) (discussing

abandonment of Bram standard and resulting dangers of “station house plea-

bargaining”). See also United States v. LeBrun 363 F.3d 715, 725-26 (8th Cir. 2004)

(finding even if the interrogator‟s statements could be reasonably interpreted as a

promise of no prosecution, the defendant‟s confession was deemed voluntary as the

police had not overborne his will and capacity for self-determination); United States v.

Larry, 126 F.3d 1077, 1079 (8th Cir. 1997) (per curiam) (holding the accused‟s

statement implicating himself as a felon in possession of ammunition was voluntary

even though induced by a promise of non-prosecution for a separate offense involving a

drive-by shooting); Tippitt v. Lockhart, 859 F.2d 595, 598 (8th Cir. 1988) (concluding

that the accused‟s confession was voluntary despite officers‟ fulfilled promise of non-

prosecution for capital murder in exchange for a confession); Ballard, 586 F.2d at 1063

                                           15
(promising to make known a defendant‟s cooperation to the trial court or prosecutor

does not of itself establish the will of the defendant was overcome); State v. Pinder, 250

Conn.    385,   736   A.2d   857,   879-881     (1999)   (deeming   confession   voluntary

notwithstanding police statement that defendant would be “better off” if he told the truth

where, inter alia, the defendant was offered no specific assurances giving a statement

would affect the outcome of the proceedings).


        Here appellant gave two lengthy statements before the one she now challenges.

Before each statement, she received the Miranda warnings and expressed her

understanding. As noted, aspects of the Miranda warnings were reiterated at least once

during the March 9 interrogation.     At no time during the March 9 interrogation did

appellant request an attorney or termination of the interview. She neither complained of

the circumstances of her questioning nor asserted a request that was denied. Detective

Smith did not offer a quid pro quo of leniency for a confession nor did he expressly

threaten added or heightened punishment for failure to confess. Appellant had prior

arrests, and was familiar with police procedure. Nothing indicates she was of any level

less than average intelligence. By the time she gave her March 9 statement, over

twenty-four hours had elapsed since appellant had given her unchallenged second

statement, in which she acknowledged her presence in the car during all the events

leading to Espinosa‟s death and told of her role in the burning of the body. Neither

appellant‟s characteristics nor the details of her interrogation on March 9 suggest that

her will was overborne and her capacity for self-determination critically impaired by

Smith‟s vague references to presenting “something to the judge.”




                                           16
      Article 38.21 Violation


      By her third issue, appellant contends Detective Smith improperly induced her to

make a statement by promising to report to the judge if she “did the right thing.” The

questioned statements are apparently the following:


      “And the way to make it right is to say, „Okay, this is exactly what
      happened, and I need to be cooperative so that hopefully I can get a little
      bit of leniency through this whole thing,‟ all right.”
      ***


      “[T]hat‟s the kind of stuff that I have to hear from you so that I can say,
      „Judge, she did the right thing.‟ Martha, I need you to dig yourself out of
      here.”
      Under Texas statutory law, the statement of an accused may be used against her

“if it appears that the same was freely and voluntarily made without compulsion or

persuasion.” TEX. CODE CRIM. PROC. ANN. art. 38.21 (West 2005). Voluntariness of a

statement under article 38.21 is determined by examining the totality of the

circumstances. Delao, 235 S.W.3d 235, 239 (citing Fulminante, 499 U.S. at 285-86);

Creager v. State, 952 S.W.2d. 852, 855 (Tex. Crim. App. 1997).9


      We see no error in the trial court‟s refusal to suppress appellant‟s March 9

statement. It is unnecessary for us to restate why under the totality-of-circumstances

analysis appellant‟s statement was not involuntary. Moreover, Detective Smith offered

appellant no positive promise of leniency or beneficial outcome. Appellant‟s requested

      9
        Courts sometimes have stated a different test for voluntariness of a promise-
induced confession under article 38.21, considering whether the promise was positive,
made or sanctioned by someone in authority, and of such an influential nature that it
would cause a defendant to speak untruthfully. Martinez v. State, 127 S.W.3d 792, 794
(Tex. Crim. App. 2004) (citing Fisher v. State, 379 S.W.2d 900, 902 (Tex. Crim. App.
1964)). We would reach the same result on this issue by applying that test.

                                          17
cooperation carried the hope of “get[ing] a little bit of leniency through this whole thing.”

And nothing here demonstrates any actual or apparent authority in Detective Smith to

negotiate a lesser charge or reduced sentence for appellant. We think it unreasonable

to believe a person would speak untruthfully, confessing to acts she did not commit, on

the strength of the vague statements challenged under this issue.


       We overrule appellant‟s first, second, and third issues.


Issue Four


       Through her fourth issue, appellant asserts the trial court abused its discretion by

failing to suppress a statement her sister-in-law Rebecca Hernandez attributed to

appellant. Appellant sought suppression of the statement which the trial court denied

after a pre-trial hearing. Over appellant‟s further objection at trial, Rebecca testified to

her conversation with appellant in a motel room.


       Appellant argues the statement was wrongfully obtained because she was then

unlawfully restrained by Kenneth and Rebecca through conduct amounting to

kidnapping or unlawful restraint.        Thus, appellant argues, the statement was

inadmissible under Code of Criminal Procedure article 38.23.


       After Espinosa‟s death, appellant traveled to Mexico.        Kenneth and Rebecca

joined her and appellant returned to Texas with them. At a motel in Mexico appellant

made an assertedly inculpatory statement to Rebecca.           The following day, as they

entered Texas at Eagle Pass, appellant was arrested.              According to Rebecca‟s

testimony at the suppression hearing, appellant voluntarily returned with her and

Kenneth to Texas. Appellant did not testify.

                                             18
       Because the issue implicates the trial court‟s fact finding and credibility

determinations we apply a bifurcated standard of review, giving almost total deference

to a trial court‟s determination of historic facts and mixed questions of law and fact that

rely upon the credibility of a witness, but applying a de novo standard of review to pure

questions of law and mixed questions that do not depend on credibility determinations.

Martinez v. State, 348 S.W.3d 919, 922-23 (Tex. Crim. App. 2011) (citing Guzman v.

State, 955 S.W.2d 85, 87-89 (Tex. Crim. App. 1997)). The trial court is the sole judge of

the credibility of the witnesses and the weight given their testimony. Ex parte Moore,

395 S.W.3d 152, 158 (Tex. Crim. App. 2013). We review the suppression hearing

record in the light most favorable to the trial court‟s ruling and must sustain the decision

if it is reasonably supported by the record and is correct under any theory of law

applicable to the case.     Id.   The trial court prepared written findings of fact and

conclusions of law concerning the issues raised by appellant‟s motion to suppress.

Among other things it found appellant voluntarily returned to the United States.


       A defendant moving for suppression under article 38.23 on the claim of a

statutory violation bears the burden of producing evidence of the violation. State v.

Robinson, 334 S.W.3d 776, 779 (Tex. Crim. App. 2011). Only if the defendant meets

this burden does the burden shift to the State to prove compliance. Id.


       In part pertinent to appellant‟s present issue, article 38.23 provides:


       No evidence obtained by an officer or other person in violation of any
       provisions of the Constitution or laws of the State of Texas, or of the
       Constitution or laws of the United States of America, shall be admitted in
       evidence against the accused on the trial of any criminal case.




                                             19
TEX. CODE CRIM. PROC. ANN. art. 38.23(a) (West 2005). A person commits the offense

of kidnapping if the person intentionally or knowingly abducts another person. TEX.

PENAL CODE ANN. § 20.03(a) (West 2011). “Abduct” includes restraining a person with

intent to prevent her liberation by secreting or holding her in a place where she is not

likely to be found. TEX. PENAL CODE ANN. § 20.01(2)(A) (West 2011). A person commits

unlawful restraint if she “intentionally or knowingly restrains another person.”    TEX.

PENAL CODE ANN. § 20.02(a) (West 2011). “Restrain” as used by §§ 20.01(2)(A) and

20.02(a) means to restrict a person‟s movements without consent, so as to interfere

substantially with the person‟s liberty, by moving the person from one place to another

or by confining the person. TEX. PENAL CODE ANN. § 20.01(1) (Vernon 2011). Restraint

is without consent if it is accomplished by force, intimidation, or deception. TEX. PENAL

CODE ANN. § 20.01(1)(A) (West 2011).


      Appellant‟s contention is that Kenneth and Rebecca restrained her by deception.

She cites cases establishing the proposition that consent is ineffective if obtained

through the deceptive representations of another.10 Thus underlying her claim of a

violation of article 38.23 is the assertion she was deceived by representations of her

husband and his sister.    But as noted appellant did not testify at the suppression

hearing, so we know not what she was told, understood or believed regarding their

intentions as she traveled with them toward the border. Nor did the court hear from any

other witness of deceptive representations made to appellant. With respect to the issue


      10
           Gordon v. State, 633 S.W.2d 872, 874-75 (Tex. Crim. App. 1982);
Higginbotham v. State, 356 S.W.3d 584, 590 (Tex. App.—Texarkana 2011, pet.
refused); Rabb v. State, 835 S.W.2d 270, 271-72 (Tex. App.—Tyler 1992, no pet.);
Pack v. State, 651 S.W.2d. 389, 392 (Tex. App.—Fort Worth 1983, pet. refused); State
v. Bible, 175 Ariz. 549, 858 P.2d 1152, 1207 (Az. 1993).

                                           20
of appellant‟s consent to their return to the United States, the only evidence was of her

intention to return voluntarily.


         On this record, appellant did not meet her burden of proof at the suppression

hearing. Robinson, 334 S.W.3d at 780-82 (Cochran, J., concurring). Thus, the trial

court was authorized in finding the admission of appellant‟s statement to Rebecca was

not barred by article 38.23. In the same way, to the extent appellant also complains that

the trial court abused its discretion by allowing Rebecca to testify at trial to appellant‟s

statement, the record shows no error. We overrule appellant‟s fourth issue.


                                        Conclusion


         Having overruled appellant‟s four issues, we affirm the judgments of the trial

court.




                                                 James T. Campbell
                                                     Justice



Publish.




                                            21
