Opinion issued October 18, 2018




                                     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.




1
      See TEX. PENAL CODE ANN. § 19.02(b) (West 2011).
In one issue, Appellant argues the trial court abused its discretion by admitting the

two audio recordings of her custodial interrogation.

      On original submission, we overruled Appellant’s sole issue, holding there

was no error. Flores v. State, No. 01-14-00579-CR, 2015 WL 4591707, at *3 (Tex.

App.—Houston [1st Dist.] July 30, 2015, pet. granted) (Flores I). The Court of

Criminal Appeals determined there was error, and the court remanded the case to

this Court to conduct a harm analysis. Flores v. State, No. PD-1189-15, 2018 WL

2327162, at *9 (Tex. Crim. App. May 23, 2018) (Flores II).

      We reverse and remand for a new trial.

                                    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 thirty minutes after that, Officer Kuhlman began

recording again. The interrogation lasted for another 53 minutes. The last 18

minutes of the recording are missing from the audio file admitted into trial, however.

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

recordings, claiming the recordings were inadmissible because they were

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


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              Motion to Suppress Interrogation Audio Recordings

      Appellant argues she was harmed by the trial court erroneously admitting the

two audio recordings of her custodial interrogation. Appellant’s argument that the

evidence should have been excluded was based on section 3 of article 38.22 of the

Texas Code of Criminal Procedure. See TEX. CODE CRIM. PROC. ANN. art. 38.22,

§ 3(a) (West 2018). The harm analysis for errors based on section 38.22 is governed

by rule 44.2(b) of the Texas Rules of Appellate procedure. Nonn v. State, 117

S.W.3d 874, 881 (Tex. Crim. App. 2003); Smith v. State, 236 S.W.3d 282, 296 (Tex.

App.—Houston [1st Dist.] 2007, pet. ref’d); TEX. R. APP. P. 44.2(b). Under rule

44.2(b), any error “that does not affect substantial rights must be disregarded.” TEX.

R. APP. P. 44.2(b). “A substantial right is affected when the error had a substantial

and injurious effect or influence in determining the jury’s verdict.” Smith, 236

S.W.3d at 296–97 (citing King v. State, 953 S.W.2d 266, 271 (Tex. Crim. App.

1997)).

      In making this assessment, we consider the entire record, including the

evidence admitted, the nature of the evidence supporting the conviction, the

character of the error, and how the erroneously admitted evidence relates to other

evidence in the case, the charge, the State’s and the defense’s theories of the case,

and closing arguments. See Morales v. State, 32 S.W.3d 862, 867 (Tex. Crim. App.

2000).


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      While the opinion joined by a plurality of the court in Flores II (the

“Opinion”) did not perform a harm analysis, it did analyze whether the admission of

the recordings was material. 2018 WL 2327162, at *7–*8. This materiality analysis

reviewed the same portions of the record required of a substantial-injury analysis.

The Opinion determined, “The way the prosecution dealt with the missing portions

of the recorded interview in trial effectually generated materiality.” Id. at *7.

      The Opinion observed that, during the testimony of the officer that recorded

the interview, the State never asked the officer “what Appellant said to him during

the missing minutes.” Id. In contrast, “the State repeatedly challenged Appellant

about what counsel for the State perceived as changes and omissions in her

statements about Castellanos’s death. Despite his assertions that no part of the

interrogation was missing, counsel for the State repeatedly referred to ‘the part that

wasn’t recorded.’” Id. The Opinion quoted five separate portions of Appellant’s

cross-examination to highlight this point. Id. at *7–*8. Appellant testified that she

did tell the officers that she acted in self-defense during her interrogation. Id. The

State questioned Appellant why her defense was not on the recording, asking

questions such as, “So that’s on the part that’s missing, as well?” Id. at *8.

      The same theme appeared in the State’s closing. Id. The State characterized

Appellant’s assertion that she acted in self-defense as something she made up in




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preparation for trial. Id. Its proof for this argument was the fact that the defense

was not asserted in the recordings. Id.

      “In this case, the State failed to preserve evidence and then used its absence

to undermine Appellant’s trial testimony about the events that ended in Castellanos’s

death.” Id. This put Appellant in an impossible situation. “Appellant could not

prove that she had made a prior statement that was consistent with her trial testimony

because any such statements had been lost through no fault of her own.” Id. The

State used this inability to prove what the officers had lost against Appellant. “By

repeatedly referring to what might or might not have been said during the missing

thirty minutes, the State improperly used the missing minutes as a sword against

Appellant.” Id.

      In a claim of self-defense, “a defendant bears the burden of production,” while

“the State . . . bears the burden of persuasion to disprove the raised defense.” Zuliani

v. State, 97 S.W.3d 589, 594 (Tex. Crim. App. 2003). The State attempted to carry

its burden of persuasion by forcing Appellant to defend missing pieces of evidence

that were beyond her ability to preserve. See Flores II, 2018 WL 2327162, at *8.

We hold the admission of the incomplete recordings affected Appellant’s substantial

rights. See TEX. R. APP. P. 44.2(b).

      We sustain Appellant’s sole issue.




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                                   Conclusion

      We reverse the judgment of the trial court and remand for a new trial.




                                               Laura Carter Higley
                                               Justice

Panel consists of Justices Jennings, Higley, and Massengale.

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




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