                             NUMBER 13-09-023-CR

                           COURT OF APPEALS

                 THIRTEENTH DISTRICT OF TEXAS

                   CORPUS CHRISTI - EDINBURG


GILBERTO TAMAYO VILLARREAL,
                                                                            Appellant,

                                           v.

THE STATE OF TEXAS,                                                          Appellee.


                  On appeal from the 275th District Court
                        of Hidalgo County, Texas.


                        MEMORANDUM OPINION

     Before Chief Justice Valdez and Justices Benavides and Vela
                Memorandum Opinion by Justice Vela

      A jury convicted appellant, Gilberto Tamayo Villarreal, of capital murder. See TEX .

PENAL CODE ANN . § 19.03(a)(2) (Vernon Supp. 2009). Because the State did not seek the
death penalty, the trial court assessed punishment at life in prison. See id. § 12.31(a)

(Vernon Supp. 2009). By two issues, appellant argues (1) the trial court erred in denying

his request to make an opening statement, and (2) the jury could not have found beyond

a reasonable doubt that his confession was voluntarily made. We affirm.

                                          I. BACKGROUND

       Twenty-five-year-old Miguel Aguilar worked at a convenience store called “Gas

Depot” in Edinburg, Texas. On April 22, 2007, he arrived at work in the afternoon and was

supposed to close the store at 10:00 p.m. That evening, between 8:00 and 8:30, Lucita

Leal stopped at the Gas Depot to make a purchase. While standing at the counter, she

saw appellant and a male passenger drive up in a dark green Ford pickup. Appellant went

into the store and walked by the counter. Leal testified that appellant “went back toward

the back and then came back up toward the counter with nothing in his hands.” She stated

that his “eyes were scanning the store.” When she left, appellant remained inside. As she

walked out of the store, appellant’s passenger “kept his head down.” About 10:15 p.m.,

Kayleigh Garcia went inside the Gas Depot but did not see anyone inside. When Aguilar

did not return home from work, his mother went to the Gas Depot and found him laying on

the floor behind the counter. She went out to the street and yelled for help. Officer James

Ramirez arrived at the scene and saw Aguilar lying on his left side. He had no pulse and

was not breathing. The pathologist who performed Aguilar’s autopsy1 testified he died from

“a gunshot would to the head.”




       1
       The State introduced the autopsy report into evidence as State’s exhibit 68.

                                                  2
        Officer Jose Garza testified that the Gas Depot’s cash register was found on the

floor next to Aguilar’s feet. He stated the “cash register receipt” showed that the register

was last opened at 9:58 p.m. on the night of the murder. The Gas Depot’s owner told

police that $104.48 was missing from the cash register.

        On the day after the murder, Robert Alvarez, a detective with the Edinburg Police

Department, retrieved video tape2 from a security camera located at a motel across the

street from the Gas Depot. During the State’s case-in-chief, the jury watched the video

tape while Detective Alvarez testified to what the video tape showed. He stated, in relevant

part: “There is a truck there that just drove in. . . . [W]e believe . . . that this truck is the

Defendant’s truck that entered into the parking area of the Gas Depot. . . . [I]t does stay

there approximately a minute, . . . but it exits out the back and heads down south. . . .” He

stated that his investigation led to a suspect named J.D. Urbina, who provided him with a

confession, implicating himself and appellant in Aguilar’s murder. Afterwards, appellant

was arrested in Georgia, and Detective Alvarez interviewed him twice after his arrest–once

in Cartersville, Georgia, on May 22, 2007, and again in Edinburg, Texas, on May 23, 2007.

Appellant did not confess during the first interview, but he did confess during the second

interview. During the second interview, he provided Detective Alvarez with a written

confession,3 stating in relevant part:

        On April the 22nd 2007 I was at the crack house on South Closner with JD
        Urbina. I was smoking crack with him. There was a lot of other persons


        2
            The State introduced the relevant portion of this video tape into evidence as State’s exhibit 76.

        3
         W ith respect to the second interview in Edinburg between appellant and Detective Alvarez, the State
introduced: (1) the recording of this interview into evidence as State’s exhibit 71; (2) a transcription of this
interview into evidence as State’s exhibit 74; and (3) a copy of appellant’s written confession into evidence
as State’s exhibit 4.

                                                        3
       there. We ran out of crack and JD said he could get some more money. JD
       told me he could jack some place for money. It was nighttime and JD told
       me to take him to the corner store. When we got there I saw JD pull out the
       gun and go inside the store. JD shot the clerk and we went back to the
       house. I don’t know how much money he got. JD bought some more crack
       and we smoked it. I left the house before the police got there. This was an
       accident. Nobody was supposed to die. We just needed more money for
       crack. . . .

       Appellant did not testify as a witness in his defense.

                                       II. DISCUSSION

A. Opening Statement

       In his first issue, appellant contends that the trial court erred in denying his request

to make an opening statement to the jury before the State presented its evidence to the

jury, despite the State having waived its opening statement. The court of criminal appeals

has determined that criminal defendants do not have the right to make an opening

statement prior to the presentation of the State’s case when the State waives its opening

statement. Moore v. State, 868 S.W.2d 787, 790-91 (Tex. Crim. App. 1993). When the

State waives its opening statement, the criminal defendant may make his or her opening

statement at the close of the State’s case-in-chief. Id. at 791; Carlock v. State, 99 S.W.3d

288, 291 (Tex. App.–Texarkana 2003, no pet.).

       Appellant argues that the State’s reading of the indictment to the jury constitutes the

equivalent of an opening statement. However, “the reading of an indictment does not

constitute an opening statement by the state.” Carlock, 99 S.W.3d at 291. Thus, the trial

court did not err in failing to allow appellant to make an opening statement in light of the

State’s waiver. Issue one is overruled.




                                              4
B. Voluntariness of Confession

          In his second issue, appellant contends that trickery and deception used by the

police to obtain his confession violated the Due Process Clause of the Fourteenth

Amendment to the United States Constitution and, thus, no rational trier of fact could have

found beyond a reasonable doubt that his confession, taking into consideration the totality

of the circumstances, was voluntarily made.4 The charge instructed5 the jury with respect

to the issue of voluntariness of the confession, and the jury returned a general verdict of

guilty.

          An accused may claim his statement was not freely and voluntarily made and thus

inadmissible as a violation of the Due Process Clause. Oursbourn v. State, 259 S.W.3d

159, 169, 170 (Tex. Crim. App. 2008). The Due Process Clause incorporates the Fifth

Amendment’s Self-Incrimination Clause. Malloy v. Hogan, 378 U.S. 1, 6-11 (1964). “A

confession may be involuntary under the Due Process Clause only when there is police

overreaching.” Oursbourn, 259 S.W.3d at 169; see Colorado v. Connelly, 479 U.S. 157,

164 (1986) (holding that if there is no police coercion or overreaching, no due-process

          4
           Appellant lim ited his argum ent to the Due Process Clause of the Fourteenth Am endm ent to the
United States Constitution. He does not assert a claim under the Texas Constitution or Texas statutory law.
Therefore, we do not conduct a separate analysis required to determ ine whether the police conduct in this
case constituted im proper inducem ents under state law. See Muniz v. State, 851 S.W .2d 238, 251-52 (Tex.
Crim . App. 1993) (requiring state and federal involuntariness claim s to be argued on separate grounds with
separate substantive analysis or argum ent provided for each ground). However, we note that a statem ent
that is involuntary as a m atter of federal constitutional law is also involuntary under article 38.22 of the Texas
Code of Crim inal Procedure, which governs the adm issibility of confessions. Oursbourn v. State, 259 S.W .3d
159, 169 (Tex. Crim . App. 2008).

          5
              The charge included an instruction on the voluntariness of the confession as follows:

                   You are instructed unless you believe from the evidence beyond a reasonable doubt
          that the alleged confession or statem ent introduced into evidence was freely and voluntarily
          m ade by the Defendant without com pulsion or persuasion, or if you have a reasonable doubt
          thereof, you shall not consider such alleged statem ent or confession for any purpose nor any
          evidence obtained as a result thereof.

                                                         5
violation exists). “The Due Process Clause is aimed at protecting suspects from police

overreaching, . . . [and] [t]he same is true for Miranda[6] rights and waivers that apply to

custodial-interrogation statements.” Id. “‘Miranda protects defendants against government

coercion leading them to surrender rights protected by the Fifth Amendment; it goes no

further than that.’” Id. (quoting Connelly, 479 U.S. at 170).

       “Substantive constitutional law prohibits the government from using an involuntary

confession against an accused with the test for voluntariness being whether the confession

is the product ‘of an essentially free and unconstrained choice by its maker.’” State v.

Terrazas, 4 S.W.3d 720, 723 (Tex. Crim. App. 1999) (quoting Schneckloth v. Bustamonte,

412 U.S. 218, 225 (1973)); Alvarado v. State, 912 S.W.2d 199, 211 (Tex. Crim. App. 1995)

(stating that accused’s statement is involuntary “only if there was official, coercive conduct

of such a nature that any statement obtained thereby was unlikely to have been the

product of an essentially free and unconstrained choice by its maker”). The “inquiry . . .

examines ‘whether a defendant’s will was overborne’ by the circumstances surrounding the

giving of the confession.” Dickerson v. United States, 530 U.S. 428, 434 (2000) (quoting

Schneckloth, 412 U.S. at 226). “The due process test takes into consideration ‘the totality

of all the surrounding circumstances—both the characteristics of the accused and the

details of the interrogation.’”         Id. (quoting Schneckloth, 412 U.S. at 226).      “The

determination ‘depend[s] upon a weighing of the circumstances of pressure against the

power of resistance of the person confessing.’” Id. (quoting Stein v. New York, 346 U.S.

156, 185 (1953)).



       6
           See Miranda v. Arizona, 384 U.S. 436 (1966).

                                                    6
       In Oursbourn, the court of criminal appeals noted that, in Colorado v. Connelly, the

United States Supreme Court collected cases in which courts found statements involuntary

under Miranda or the Due Process Clause. Oursbourn, 259 S.W.3d at 170. These cases

involve police overreaching and involve fact scenarios such as: (1) “the suspect was

subjected to a four-hour interrogation while incapacitated and sedated in an intensive-care

unit”; (2) “the suspect, while on medication, was interrogated for over eighteen hours

without food, medication, or sleep”; (3) “the police officers held a gun to the head of the

wounded suspect to extract a confession”; (4) “the police interrogated the subject

intermittently for sixteen days using coercive tactics while he was held incommunicado in

a closed cell without windows and was given limited food”; (5) “the suspect was held for

four days with inadequate food and medical attention until he confessed”; (6) “the suspect

was subjected to five days of repeated questioning during which police employed coercive

tactics”; (7) “the suspect was held incommunicado for three days with little food, and the

confession was obtained when officers informed him that their chief was preparing to admit

a lynch mob into the jail”; and (8) “the suspect was questioned by relays of officers for

thirty-six hours without an opportunity for sleep.” Id. at 170-71. Based upon these fact

scenarios, the Oursbourn court stated that “due-process and Miranda claims of

involuntariness generally do not require ‘sweeping inquiries into the state of mind of a

criminal defendant who has confessed’”7[;] rather, “[t]hey involve an objective assessment

of police behavior.” Id. at 171.




       7
           Oursbourn, 259 S.W .3d at 171 (quoting Colorado v. Connelly, 479 U.S. 157, 167 (1986)).

                                                     7
       Here, the evidence showed that: (1) Detective Alvarez gave appellant his Miranda

warnings prior to each interview, before each interview started, and appellant stated that

he understood these warnings and that he agreed to waive them; (2) appellant’s interview

in Georgia lasted about one hour and six minutes and occurred at the Cartersville, Georgia

airport; (3) his interview in Edinburg lasted about one hour and occurred in Detective

Alvarez’s office; (4) appellant never requested an attorney and never requested to

terminate either interview; (5) appellant was not denied access to relatives, food, water, or

use of the restroom; (6) no officer either used or threatened to use physical brutality

against him during either interview; (7) appellant does not claim, and the record does not

show, that he was mentally unstable, physically ill, or intoxicated at the time of either

interview; (8) appellant was thirty-five years old at the time of the interviews; and (10)

appellant was released from prison in 2005.

       Nevertheless, appellant contends that his confession was involuntary because (1)

Detective Alvarez told him that the police had evidence connecting him to the murder that,

in fact, did not exist, and (2) the police threatened to arrest his family members. We

address each argument separately.

       1. Misrepresentations About The Evidence

       Detective Alvarez testified that prior to appellant’s Georgia interview, the evidence

linking appellant to the murder was: (1) Urbina’s confession, implicating appellant in the

murder; (2) Leal’s identification of appellant at the Gas Depot on the evening of the murder;

(3) the video from the motel security camera, showing a pickup outside the Gas Depot at

the time of the murder; and (4) appellant owned a pickup. The police did not have any

physical, scientific, or photographic evidence linking appellant to the murder. During the

                                             8
Georgia interview on May 22, 2007, Detective Alvarez told appellant the “evidence is

overwhelming” and that: (1) the video tape showed his pickup in front of the Gas Depot

at the time of the murder; (2) the video tape showed a person wearing glasses8 walking

into the Gas Depot at the time of the murder; (3) that this person appeared to be appellant;

and (4) that DNA on a gun and/or gun case could possibly link him to the murder.

Detective Alvarez testified this evidence did not exist and that he misrepresented the

evidence to appellant in an attempt to obtain the truth from him. During the Edinburg

interview on May 23, 2007, Detective Alvarez told appellant, “We presented evidence to

you yesterday [referring to the Georgia interview], though we told you what we had or

whatever.”

       “Misrepresentations made by the police to a suspect during an interrogation [are]

a relevant factor in assessing whether the suspect’s confession was voluntary, but it is

insufficient to render an otherwise voluntary confession inadmissible.” Green v. State, 934

S.W.2d 92, 99 (Tex. Crim. App. 1996). We view the misrepresentations in the context of

the totality of the circumstances. Id. “Some types of police deception employed during

custodial interrogation, designed to elicit a confession from the accused, are

constitutionally permissible.” Id. The focus is on whether the behavior of the officers “was

such as to overbear the will of the accused and bring about a confession not freely

determined.” Id. at 99-100 (citing Rogers v. Richmond, 365 U.S. 534, 544 (1961)).

       “Of the numerous types of police deception, a misrepresentation relating to an

accused’s connection to the crime is the least likely to render a confession involuntary.”



       8
           The record showed that appellant wore glasses.

                                                    9
Id. at 100. In Oursbourn, the court of criminal appeals noted that even though an officer

lied to the accused about witnesses having identified him in a photo spread, the court

stated, “it is well established that lying about the state of the evidence is not the sort of

‘overreaching’ that implicates the Due Process Clause, as long as the subterfuge used is

not one likely to produce an untrue statement.” Oursbourn, 259 S.W.3d at 182. Recently,

the court of criminal appeals stated that “verbal trickery, deception and outright lies

concerning the existence of evidence are acceptable interrogation strategies, but not the

use of false, incriminating documents.” Wilson v. State, No. PD-0307-09, 2010 WL

715253, at *4 (Tex. Crim. App. March 3, 2010) (internal quotation marks omitted).

       Appellant has provided no argument concerning how the misrepresentations about

the existence of evidence were “such as to overbear” his will “and bring about a confession

not freely determined.” Green, 934 S.W.2d at 99-100. He does not argue, and the record

does not show, that any officer presented false, incriminating documents to him. The

complained-of misrepresentations relate to his “connection to the crime,” and are,

therefore, the least likely to render his confession involuntary. See id. (stating that an

interrogating officer’s misrepresentation to accused that there was an eyewitness to the

murder “was not of the type that would undermine the reliability of the confession, and it

was not so coercive that it would overbear [the accused’s] will and render his confession

involuntary.”); Weaver v. State, 265 S.W.3d 523, 534-35 (Tex. App.–Houston [1st Dist.]

2008, pet. ref’d) (deciding that officers’ misrepresentations, during the accused’s

interrogation, that “(1) witnesses saw him commit the crime, (2) his fingerprints were found,

and (3) a videotape showed his involvement in the crime,” did not make the accused’s



                                             10
statement involuntary). We conclude that Detective Alvarez’s misrepresentations did not

overbear appellant’s will such that his confession was not the product of an essentially free

and unconstrained choice.

        2. Threats To Arrest Family Members

        Appellant argues that during the Georgia interview, Detective Alvarez and two other

officers who were present at the interview threatened to arrest his mother, mother-in-law,

and his pregnant girlfriend.9 In Roberts v. State, the court of criminal appeals stated that


        9
          After the State rested, the defense called Detective Alvarez as a witness and played the video
recording of the Georgia interview to the jury. Defense counsel stopped and started the recording as
necessary in order to question Detective Alvarez about certain verbal exchanges between appellant and the
officers. Appellant directs our attention to the following excerpts from that interview, where Detective Alvarez
is interrogating appellant:

                Your m om ’s involved, too. You m ade phone calls to your hom e. W e went and asked
        them . W e were conducting and [sic] investigation m urder. W e went and asked if them if
        they heard from you and lied to us.

                 ****

                  Okay. See your girlfriend, your pregnant wife, your com m on-law wife, whatever she
        is, is facing som e serious tim e.

                 ****

                She helped you run from us. You knew about the [appellant’s] warrant. She knew
        about the warrant. . . .

                 ****

                 I know you went to the house and left a num ber so you could call.

                 ****

        She lied, claim ing not to know anything about where you were and the phone num bers. But
        we’ll get to her later. In the m eantim e, your baby’s going to be born when your girlfriend is
        in prison.

                W e will charge her. That’s not a choice we will have. W hether we can help her or
        not depends on how truthful you’re willing to be about this.

                 ****

                 She wants to run from the law with baby, we’ll fly and pick her up where ever she

                                                      11
“[a] threat made by police officers to arrest or punish a close relative or a promise to free

a relative of a prisoner in exchange for a confession may render the prisoner’s

subsequently made confession inadmissible in evidence.” 545 S.W.2d 157, 161 (Tex.

Crim. App. 1977). “When a prisoner has created conditions which place an innocent

relative under suspicion and the prisoner desires to extricate the relative from this position

by making a confession and the confession is self-motivated, it may deem voluntary and

admissible in evidence.” Id. “The ultimate question is whether the accused’s will was

overborne.” Hunter v. State, 148 S.W.3d 526, 531 (Tex. App.–Houston [14th Dist.] 2004,

pet. ref’d).




        goes.

                 ****

        W e don’t want anyway [to] m ess with those people m an. W e don’t want anyway [to] m ess
        with your wife. W e don’t want to m ess with your m om . W e want you to be honest and say:
        You know what, this ends with m e. This what [sic] happened. It should have never gone that
        way. Oh, well, that’s how it happened.

                 Or else we’re gonna have to pick up your m om . Take responsibility. Or—

                 ****

                 Or else we’re gonna have to pick up your m om , your wife with a pregnant baby. . .
        .

Later during the Georgia interview, an interrogator asked appellant for his wife’s nam e. Appellant told him his
wife’s nam e and said that he and his wife drove to Georgia in a jeep, which belonged to his m other-in-law.
Then, the interrogator asked appellant:

        You want the guys back in Edinburg go get warrants for all these people and round them up?
        You want them to hold off? W e’ve already got all their inform ation, photographs, and
        address, correct?

                 ****

                  Okay. W e just need their addresses to m ake sure and ID her we get the warrant and
        all of this stuff.

                                                      12
        Appellant has provided no argument concerning how the threats to arrest his family

members made by the officers caused his will to be overborne. He maintained his

innocence throughout the first interview in Georgia and did not confess until the second

interview, which occurred the next day in Edinburg, Texas. All of the threats to arrest his

family members were made during the first interview. Thus, appellant has not established

a causal link between his confession and the threats. See Oursbourn, 259 S.W.3d at 170

(stating that “[a]bsent police misconduct causally related to the confession, there is ‘simply

no basis for concluding that any state actor has deprived a criminal defendant of due

process of law.’”) (quoting Connelly, 479 U.S. at 164).10 Furthermore, the record does not

show that Detective Alvarez or any other officer obtained the confession as a result of any

promise made to appellant, or that appellant confessed out of concern the police would

arrest his family members if he did not confess.




        10
          See also Penaflor v. State, Nos. 14-05-00569, 14-05-00570-CR, 2006 W L 3360550 (Tex.
App.–Houston [14th Dist.[ 2006, pet. ref’d) (m em . op., not designated for publication). In that case, officers
interviewed Penaflor twice after his arrest. Id. at *1. Penaflor did not confess during the first interview, but
he did confess during the second interview. Id. He filed a m otion to suppress his confession, which the trial
court denied. Id. at *2. On appeal, he argued that the trial court erred in denying the suppression m otion
because his confession was induced by direct or indirect prom ises in violation of the Fifth Am endm ent to the
United States Constitution. Id. The court held that the confession was given voluntarily. Id. at *5. In
determ ining whether a causal link existed between the prom ises and the confession, the court noted that
Penaflor m aintained his innocence throughout the first interview and did not confess until during the second
interview. Id. at *4. All of the alleged prom ises were m ade during the first interview; none were m ade during
the second interview. Id. at **4-5. As a result, the court concluded no causal relationship existed between
the prom ises and the confession. Id.




                                                      13
       We note that appellant had served time in prison and was released in 2005. Prior

experience with the criminal-justice system weighs in favor of finding his confession

voluntary.   See Green, 934 S.W.2d at 100.           Another consideration supporting the

voluntariness of his confession is that he received the Miranda warnings and waived these

rights prior to each interview. See id. We conclude that the circumstances surrounding

appellant’s confession were not so coercive to have overborne his free will. Viewing the

totality of the circumstances, we hold that a rational jury could have found from the

evidence beyond a reasonable doubt that appellant’s confession was freely and voluntarily

made without compulsion or persuasion in compliance with the Due Process Clause. Issue

two is overruled.

                                     III. CONCLUSION

       We affirm the trial court’s judgment.




                                                    ROSE VELA
                                                    Justice


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

Delivered and filed the
10th day of June, 2010.




                                               14
