                                    COURT OF APPEALS
                                 EIGHTH DISTRICT OF TEXAS
                                      EL PASO, TEXAS


  JESSE ADRIAN MARTINEZ,                          §
                                                                  No. 08-17-00253-CR
                    Appellant,                    §
                                                                     Appeal from the
  v.                                              §
                                                                   210th District Court
  THE STATE OF TEXAS,                             §
                                                                of El Paso County, Texas
                    Appellee.                     §
                                                                   (TC# 20160D03012)
                                                  §


                                          OPINION

       After being charged with one count of capital murder and one count of tampering with

physical evidence, Appellant Jesse Adrian Martinez filed a motion to suppress in which he sought

suppression of his videotaped confession to the El Paso Police Department alleging it was obtained

through a violation of his constitutional rights and resulted from an unlawful arrest. After holding

a hearing, the trial court denied Martinez’s motion. Pursuant to a plea bargain with the State in

which he did not waive his right to appeal the trial court’s suppression ruling, Martinez pleaded

guilty to the lesser-included offense of murder, agreed to a deadly weapon finding, and further

admitted his guilt to the charge of evidence tampering under section 12.45 of the Penal Code. See

TEX. PENAL CODE ANN. § 12.45. In two issues on appeal, Martinez challenges the trial court’s
denial of his motion to suppress. We affirm.

                                         BACKGROUND

                                        Factual Background

       On Friday, April 15, 2016, at about 1:16 a.m., Detectives Lara and Parsons, who were

assigned to the Crimes Against Persons unit of the El Paso Police Department, met with Martinez

at their unit’s office. At about 12:30 a.m., plain-clothes officers had brought Martinez to the office

in a regular, non-marked car, and his mother, who also had come to the office that morning, was

elsewhere in the building. Detective Lara had been investigating Martinez’s alleged involvement

in the murder of Tristan Mina based on a statement given by Samuel Rico, an eventual co-

defendant with Martinez and Jose Andrade. Detective Lara also had a statement from Abner

Robles who had been identified as a witness to certain events occurring after the murder but who

had not been identified as having participated in committing the murder.

       According to Detective Lara, Rico’s statement corroborated the one he eventually obtained

from Martinez with Rico implicating Martinez “in almost the same fashion that [Martinez] told us

in his statement.” Furthermore, the statements from Rico and Robles indicated that Martinez was

present at the scene of Mina’s murder and that Martinez had admitted to setting up the cocaine

purchase that led to Mina’s murder. Robles also told Detective Lara’s partner Detective Parsons

that Andrade admitted to his involvement in Mina’s murder. Officers had been called out to the

scene only a few days prior, on April 10, and Mina’s body had not yet been discovered. Beginning

on April 10, Detective Lara, Detective Parsons, and a few other officers had been assigned to

investigate the case.

       When Detectives Lara and Parsons first approached Martinez in the CAP office, Martinez


                                                  2
had been waiting in a separate family area that had a television and not in handcuffs. The detectives

led Martinez into an interview room. Detective Lara began his interview by explaining that he and

Detective Parsons were investigating a missing-person case that originated from a police dispatch

to the west side of town on the afternoon of Sunday, April 10. After officers investigated, they

found suspicious blood and property, and subsequently, the victim, Mina, was designated as a

missing person. Detective Lara then advised Martinez of his Miranda rights, including his right

to have an attorney present before and during any questioning.1 Detective Lara also advised

Martinez of his right to end the interview at any time. Martinez stated that he understood his rights,

and he requested an attorney. Detective Lara then ended the interview without asking any further

questions.       This first interview lasted approximately three minutes and ended at 1:19 a.m.

           Detective Lara advised Martinez that he was under arrest, and Martinez was then escorted

from the interview room to an adjoining holding cell at the office. Once inside the cell, Martinez

was handcuffed to a restraining bar, and the cell door was locked.2 Detective Lara believed that

the arrest was proper under “Chapter 14, arrest without warrant” because, based on Rico’s

statement, he believed he had sufficient probable cause of Martinez having committed a murder,

and he was concerned that Martinez might “take off” if released. Likewise, Detective Parsons

believed that they had authority to arrest Martinez for Mina’s murder based on the probable cause

they developed by interviewing “a couple of other witnesses[.]” Neither detective asked Martinez

any further questions once he was placed in the cell, and Detective Lara continued with his




1
    See Miranda v. Arizona, 384 U.S. 436 (1966).
2
 The holding cell door was metal but made of a “barbed wire-type of mesh” such that someone inside the cell could
be clearly seen and heard even when the door was closed.

                                                       3
investigation and discussed with his supervisor the necessary steps to obtain an arrest warrant

while Detective Parsons began typing a complaint affidavit for the warrant.

       About 15 minutes after placing Martinez in the holding cell, Martinez “flagged” Detective

Lara down, without any prompting, as he walked past the cell while on his way to his sergeant’s

office stating that he wanted to talk and give a statement. Detective Lara told Martinez that he was

going to need to re-read the Miranda warnings to Martinez. Detective Lara then restarted and

prepared the recording system. At that time, neither Detective Lara nor Detective Parsons had yet

had the opportunity to take any steps to obtain an attorney for Martinez. Detective Lara explained

at the suppression hearing that if Martinez did not want to speak to him without an attorney present

then he was not going to speak to Martinez at all, even about obtaining an attorney, in order to

afford Martinez his right to have an attorney present. In addition, Detective Lara was unaware of

any policies of the El Paso Police Department that required him to immediately locate an attorney

for a suspect who had requested one. In his experience, a defendant would have an attorney

appointed to them once they were formally taken to a magistrate after their arrest. Martinez could

not have been taken to a magistrate without a completed complaint affidavit, and the detectives

were still working on paperwork at the time Martinez interrupted the process by flagging down

Detective Lara.

       After the recording system was ready, Detective Lara brought Martinez from the holding

cell back into the interview room. Once again, only Martinez and Detectives Lara and Parsons

were present for this second videotaped interview that began at 1:46 a.m. and ended at 2:41 a.m.

At the start of this interview, Martinez affirmatively acknowledged that he flagged down Detective

Lara and asked to give a statement. After Detective Lara informed Martinez of his Miranda rights,


                                                 4
including the right to have an attorney, Martinez answered affirmatively that he understood his

rights and wished to continue the interview. To Detective Lara, Martinez appeared to have

understood his rights and freely and voluntarily waived them.

           During this second interview of approximately one hour in length, Martinez did not request

an attorney, and he did not ask for the interview to cease. Both detectives testified at the

suppression hearing that they did not use coercive or threatening tactics, did not promise Martinez

anything in exchange for the statement, and did not deny Martinez basic necessities, such as food

or use of the restroom, during the interview. Both detectives also testified that Martinez did not

appear to be under the influence of alcohol or any narcotic drug.

           In his second videotaped statement, Martinez divulged that he, Robles, Rico, and Andrade

were drinking together at Andrade’s home when they decided to buy some cocaine. At about

midnight, Martinez called Mina to set up a purchase. Mina told Martinez that he could get an eight

ball of cocaine for the group, Martinez and Mina agreed to split the cost, and though Robles left

the group, the three accomplices drove over to Mina’s address in Rico’s car. When the three

arrived, they met with Mina outside, they all began drinking inside Rico’s car, and Mina told them

that he had about $200 to spend that night. Eventually the cocaine supplier arrived, and Mina

alone went over to the supplier’s car to get the cocaine. The group then proceeded to use the

cocaine and drink some more, and after about 30 minutes, they agreed to purchase another eight

ball. Mina called his supplier again, and when the supplier arrived, Mina again went to the

supplier’s car alone. While Mina was making this second trip over to the supplier’s car, Martinez,

Rico, and Andrade agreed they would rob Mina. 3


3
    Martinez also told the detectives that the three co-defendants discussed stealing the supplier’s Lexus but that they

                                                            5
        Martinez denied knowing that Andrade would badly hurt or even kill Mina, and Martinez

told Andrade, “[y]ou oughta just punch him, dude, like you’re bigger than him,” during a

conversation in which Andrade said he was going to hit Mina with something or stab him with a

knife. An aluminum bat was on the car floorboard, and Martinez stated, “I guess he saw the bat

like on the floor and shit and he grabbed it.” Martinez knew that Andrade was going to assault

Mina in order to accomplish the robbery, but Martinez thought that a punch “would knock him

out” to achieve that goal.

        When Mina returned to Rico’s car, the group drove down the block and began using the

cocaine. After some time, Andrade and Mina exited the vehicle leaving Martinez and Rico inside.

Martinez then heard a thud, went to check on what made the sound, and saw Mina knocked out

cold and lying on the ground. In his statement, Martinez denied seeing Andrade holding the

aluminum bat. Martinez then approached Mina to check on his pulse and saw that Mina was still

breathing, but Martinez then panicked and went back inside the car. Andrade and Rico then put

Mina in the car trunk.

        Although Andrade told Martinez that they were all “in this already,” Martinez responded

that he did not want any part of it and that he wanted to go home. Before Martinez got home, the

group stopped at Robles’s house so that Martinez could check on whether he had any evidence of

the robbery on him and to change his clothes if necessary. After Martinez changed some of his

clothes, the other two accomplices drove him home. Martinez then fell asleep. A day or two later,

Martinez went to a car wash with Rico and Robles in the early morning hours between 2 and 4

a.m., and the three were “taking off the plastic, tearing the plastic” from the wheels of Rico’s car


learned from Mina that the supplier was “strapped.”

                                                      6
“[j]ust for it could be not -- like not on the radar of the cops.” Later that same day after Martinez’s

work ended, he, Andrade, and Robles went to an area in Santa Teresa off the roadway, and Andrade

began burning what appeared to be clothes. While Andrade did this, he described what happened

during the assault on Mina to the others. On another occasion, Rico described the assault to

Martinez, as well. Both Andrade and Rico told Martinez that they buried Mina. Andrade had also

previously told Robles about what they had done to Mina.                In the interview, Martinez

acknowledged that Andrade was simply following through with their previously discussed plan to

rob Mina. Martinez also stated that, after the robbery, he was at Rico’s house, saw the same bat

that was in Rico’s car, and told the others, “you guys need to get rid of that shit.”

                                      Procedural Background

       At the suppression hearing, Martinez also testified to his account of events. Martinez

testified that he was nineteen years’ old at the time of his videotaped statements and that he had

never before been arrested or questioned by police. He testified that four “detectives” picked him

up from his home and took him to the police station in an unmarked “cruiser.” They did not

handcuff him, but informed him that they were taking him to the station to ask him “some

questions.” His mother came with him to the station, as well.

       Once at the station, Martinez testified that he was taken “straight into” an interrogation

room. Before he entered the room, his mother told him that she was in the process of getting him

an attorney. Once Martinez requested an attorney and the detectives ended the first interview, the

detectives handcuffed Martinez and informed him that he was going to be charged with murder.

Before entering the holding cell, Martinez testified that he told Detective Lara that he did not kill

anybody. Detective Lara responded that he could not talk to Martinez unless Martinez waived his


                                                  7
rights. Once Martinez was handcuffed to a bench inside the cell, he became “scared” and

“terrified.” Martinez testified that he flagged down Detective Lara because he was scared and, in

his mind, he “wanted to get the situation handled.”

       Martinez admitted that he understood his Miranda rights, including his right to an attorney,

and that he waived those rights prior to giving his statement in a second videotaped interview. He

also admitted that his statement was freely and voluntarily given. While he testified that he was

on cocaine at the time he gave his statement, he acknowledged that his cocaine use did not have

any impact on his understanding of his rights.

       At the conclusion of the hearing, the trial court denied Martinez’s motion to suppress. The

trial court stated its findings on the record and expressly found that Martinez understood his rights

and freely and voluntarily made his confession after initiating contact with Detective Lara. The

trial court also found that he was not under the influence of alcohol or any drug at the time of his

confession.

       Martinez timely filed his notice of appeal from the trial court’s ruling.

                                          DISCUSSION

       Martinez advances two issues. In Issue One, Martinez asserts his right to counsel was

violated and his statement was given involuntarily. In Issue Two, Martinez asserts the trial court

erred when it failed to suppress Martinez’s confession as fruit of an unlawful arrest.

                   Standard of Review for a Ruling on a Motion to Suppress

       We review a trial court’s ruling refusing to suppress evidence for an abuse of discretion.

Crain v. State, 315 S.W.3d 43, 48 (Tex. Crim. App. 2010); Saenz v. State, 564 S.W.3d 469, 472

(Tex. App. – El Paso 2018, no pet.). We apply a bifurcated standard of review in which we give


                                                 8
almost total deference to a trial court’s determination of historical facts, particularly when the trial

court’s findings are based on an evaluation of credibility and demeanor. St. George v. State, 237

S.W.3d 720, 725 (Tex. Crim. App. 2007). We afford the same deference to mixed questions of

law and fact if resolving those questions turns on an evaluation of credibility and demeanor.

Guzman v. State, 955 S.W.2d 85, 87 (Tex. Crim. App. 1997); State v. Alderete, 314 S.W.3d 469,

472 (Tex. App. – El Paso 2010, pet. ref’d). However, we review de novo the application of legal

principles to a specific set of facts. State v. Garcia-Cantu, 253 S.W.3d 236, 241 (Tex. Crim. App.

2008); Alderete, 314 S.W.3d at 472.

        When the trial court makes explicit fact findings, we determine whether the evidence, when

viewed in the light most favorable to the trial court’s ruling, supports those fact findings. State v.

Kelly, 204 S.W.3d 808, 818-19 (Tex. Crim. App. 2006). Regardless of whether the motion to

suppress was granted or denied, the prevailing party is entitled to “the strongest legitimate view of

the evidence and all reasonable inferences that may be drawn from that evidence.” Garcia-Cantu,

253 S.W.3d at 241. An appellate court may uphold the trial court’s ruling if it is supported by the

record and correct under any theory of law applicable to the case. State v. Stevens, 235 S.W.3d

736, 740 (Tex. Crim. App. 2007).

                 Issue One: Whether Martinez’s Right to Counsel was Violated
                            and His Statement Given Involuntarily

        In his first issue, Martinez argues that his second videotaped statement should have been

suppressed because the detectives did not obtain a valid waiver of his right to counsel after his

invocation of that right during his first videotaped interview. In response, the State argues that

because Martinez was not in custody at the time of his purported invocation of his right to counsel,

Martinez’s invocation was ineffective; and further, the rule established in Edwards v. Arizona did

                                                   9
not apply to require that Martinez himself be the party who reinitiated contact with the detectives

in order for his subsequent waiver of rights to be voluntary. Alternatively, the State argues that

even if Martinez’s purported invocation had been effective, we should defer to the trial court’s

express, record-supported finding that Martinez reinitiated contact with the detectives. In either

case, the State ultimately urges us to hold that the trial court did not abuse its discretion in denying

the motion to suppress because the totality of the circumstances showed that Martinez voluntarily

waived his Miranda rights.

                        The Edwards Rule and the Voluntariness Inquiry

        In Edwards v. Arizona, the U.S. Supreme Court set out a bright-line rule designed to protect

an accused in police custody from being badgered by police officers holding that once an accused

has expressed his desire to deal with police only through counsel then all custodial interrogation

must cease unless the accused himself initiates further communication, exchanges, or conversation

with the police. See Edwards v. Arizona, 451 U.S. 477, 484-85 (1981); see also Oregon v.

Bradshaw, 462 U.S. 1039, 1044 (1983); Cross v. State, 144 S.W.3d 521, 526 (Tex. Crim. App.

2004); Engleton v. State, No. 08-13-00077-CR, 2015 WL 1285202, at *4 (Tex. App. – El Paso

Mar. 20, 2015, no pet.) (not designated for publication). Nonetheless, it is also well-established

that a suspect is not powerless to thereafter countermand his election to speak with police only

with the assistance of counsel. See Edwards, 451 U.S. at 485; Cross, 144 S.W.3d at 526; Engleton,

2015 WL 1285202, at *4.

        Of course, the rights afforded by Miranda apply only to custodial interrogation. Miranda

v. Arizona, 384 U.S. 436 (1966); Herrera v. State, 241 S.W.3d 520, 525-26 (Tex. Crim. App.

2007). With this understanding, the Texas Court of Criminal Appeals has adopted the rule that


                                                  10
police are not required to honor anticipatorily made invocations of Miranda rights when the

attempted invocation is done in a noncustodial interrogation setting. See Estrada v. State, 313

S.W.3d 274, 295-96 (Tex. Crim. App. 2010) (rejecting appellant’s reliance on precedent from the

United States Court of Appeals for the Tenth Circuit in arguing that the government must honor

invocations of Miranda rights even if done outside of custodial interrogation and adopting the

opposite perspective in holding that police are not required to honor invocations during a

noncustodial interrogation setting). This rule recognizes that the need to scrupulously honor a

defendant’s invocation of his or her Miranda rights does not necessarily arise until created by the

pressures of custodial interrogation. Id. at 296. The Texas rule accords with U.S. Supreme Court

precedent recognizing that it has never held that a person can invoke his or her Miranda rights

anticipatorily in a context outside of custodial interrogation. See McNeil v. Wisconsin, 501 U.S.

171, 182 n.3 (1991) (“We have in fact never held that a person can invoke his Miranda rights

anticipatorily, in a context other than ‘custodial interrogation’ . . . The fact that we have allowed

the Miranda right to counsel, once asserted, to be effective with respect to future custodial

interrogation does not necessarily mean that we will allow it to be asserted initially outside the

context of custodial interrogation, with similar future effect.”) [Internal citations omitted].

       Thus, the Edwards rule cannot be triggered if a defendant attempts to invoke a Miranda

right while not in custody. See Miera v. State, No. 13-09-00166-CR, 2010 WL 3390146, at *8

(Tex. App. – Corpus Christi Aug. 30, 2010, pet. ref’d) (mem. op., not designated for publication);

Russell v. State, 215 S.W.3d 531, 534-36 (Tex. App. – Waco 2007, pet. ref’d); Brossette v. State,

99 S.W.3d 277, 282 (Tex. App. – Texarkana 2003, pet. dism’d). A person is in custody for

purposes of Miranda only if, under the circumstances, a reasonable person would believe that his


                                                  11
freedom of movement was restrained to the degree associated with a formal arrest. See State v.

Ortiz, 382 S.W.3d 367, 372 (Tex. Crim. App. 2012); State v. Luna, No. 08-16-00273-CR, 2019

WL 1925004, at *5 (Tex. App. – El Paso Apr. 30, 2019, no pet.) (not designated for publication).

       Ultimately, the State has the burden of showing that a defendant knowingly, intelligently,

and voluntarily waived his Miranda rights when such rights are implicated. See Miranda, 384

U.S. at 475; Joseph v. State, 309 S.W.3d 20, 24 (Tex. Crim. App. 2010). To evaluate whether an

accused so waived his or her rights, a reviewing Court considers the following:

       First, the relinquishment of the right must have been voluntary in the sense that it
       was the product of a free and deliberate choice rather than intimidation, coercion,
       or deception. Second, the waiver must have been made with full awareness of both
       the nature of the right being abandoned and the consequences of the decision to
       abandon it. Only if the “totality of the circumstances surrounding the interrogation”
       reveals both an uncoerced choice and the requisite level of comprehension may a
       court properly conclude that the Miranda rights have been waived.

Joseph, 309 S.W.3d at 25 (quoting Moran v. Burbine, 475 U.S. 412, 421 (1986)). This totality-

of-the-circumstances approach requires the consideration of all the circumstances surrounding the

interrogation, including the defendant’s experience, background, and conduct.         Joseph, 309

S.W.3d at 25. A valid waiver need not be expressly made. Berghuis v. Thompkins, 560 U.S. 370,

384 (2010); Joseph, 309 S.W.3d at 24; Gately v. State, 321 S.W.3d 72, 77 (Tex. App. – Eastland

2010, no pet.). Where the State shows that Miranda warnings were given, that they were

understood by the defendant, and that the defendant engaged in a “course of conduct indicating

waiver,” such as by further participating in an interview, the defendant’s uncoerced statement

establishes an implied waiver of his rights. See Berghuis, 560 U.S. at 384; see also Joseph, 309

S.W.3d at 24; Gately, 321 S.W.3d at 77-78.

                                           Application


                                                12
        At the outset, we hold that the Edwards rule did not apply here because Martinez was not

in custody at the time that he allegedly invoked his right to counsel. A group of plain-clothes

officers brought Martinez to the Crimes Against Persons office in a regular, non-marked car.

Martinez’s mother followed him to the office, and Martinez was furnished with a separate waiting

area that included a television. Throughout this time, Martinez was not in handcuffs. It was not

until after Martinez invoked his right to counsel that he was finally told he was under arrest,

handcuffed, and placed in the holding cell. We acknowledge that Martinez testified that the four

“detectives” picked him up in a “cruiser,” that they told him they were taking him to the police

station, and that he was immediately taken into the interrogation room. However, as the finder of

fact at the suppression hearing, the trial court must evaluate the credibility and demeanor of

witnesses in making determinations of historical fact. See St. George, 237 S.W.3d at 725; Alderete,

314 S.W.3d at 472. The trial court was free to reject any testimony from Martinez. See Garcia,

569 S.W.3d at 155 n.68; Graham, 201 S.W.3d at 330. The court appeared to do so in accepting

the State’s version of events and in denying his motion to suppress.

        Under the circumstances here, Martinez was not faced with any restriction on his freedom

of movement to the degree associated with a formal arrest at the time he requested an attorney

during his first videotaped interview, and he was therefore not in custody at that time.4 See Ortiz,

382 S.W.3d at 372; Luna, 2019 WL 1925004, at *5; see also Turner v. State, 252 S.W.3d 571,

579-80 (Tex. App. – Houston [14th Dist.] 2008, pet. ref’d) (holding that the defendant was not in

custody where he voluntarily accompanied police officers, who were then only in the process of



4
  In his brief to this Court, Martinez acknowledges that he “voluntarily went to CAP [Crimes Against Persons] to be
interviewed by detectives.”

                                                        13
investigating a crime, to a certain location and where he knew or should have known that the police

officers suspected he may have committed or may have been implicated in committing the crime).

And since he was not in custody, the Edwards rule did not apply to the actions taken by Detectives

Lara and Parsons in seeking a statement from Martinez. See Miera, 2010 WL 3390146, at *8

(“Assuming, without deciding, that Miera clearly expressed his desire to contact an attorney, as

previously discussed, Miera was not in custody. Thus, the Edwards standard requiring termination

of all police interrogation once an attorney is requested is not applicable in this case.”); Russell,

215 S.W.3d at 534-36 (holding that defendant’s request for an attorney did not trigger the Edwards

rule where defendant was not dealing with custodial interrogation); Brossette, 99 S.W.3d at 282

(“While the evidence is undisputed that Brossette did request an attorney and that Lieutenant Box

further interrogated Brossette after this request and before an attorney was provided, it is clear that

Brossette was not in custody. Rather, Brossette was at the police station on his own volition, and

he was free to leave in his own vehicle at any point. Therefore, the Edwards standard requiring

termination of all police interrogation once an attorney is requested is not applicable in this case.”).

We need not reach the State’s alternative argument that Edwards did not apply here due to

Martinez’s reinitiation of contact with Detective Lara.

        Having found that the Edwards rule does not apply here, we now turn to whether the State

carried its ultimate burden of showing that Martinez knowingly, intelligently, and voluntarily

waived his Miranda rights. This determination is made easier due to Martinez himself testifying

at the suppression hearing that he understood his Miranda rights, he waived those rights, and he

freely and voluntarily gave his statement. That testimony is dispositive of the question raised here.

But in any case, the remainder of the record supports the trial court’s findings of voluntariness, as


                                                  14
well. When the detectives first brought Martinez into the interview room for the first videotaped

statement, Detective Lara explained the underlying facts on which his investigation was based and

the specific crime he was investigating. Detective Lara advised Martinez of his Miranda rights,

and before requesting an attorney, Martinez stated that he understood his rights. Once Martinez

requested an attorney, Detective Lara immediately ended the interview, and both detectives

respected Martinez’s request by refraining from asking him further questions. When Martinez

later flagged down Detective Lara without any prompting, Detective Lara responded that he was

going to need to re-read the Miranda warning to Martinez, and once the detectives brought

Martinez back into the interview room, Detective Lara proceeded to make good on that admonition

by informing Martinez of those rights a second time. Martinez again affirmatively answered that

he understood his rights, and he wished to continue that interview. Both detectives testified that

they did not use coercive measures, make any promises, or deny Martinez basic amenities during

the interview. Detective Lara testified that Martinez appeared to have understood his rights and

freely and voluntarily waived them, and both detectives testified that Martinez did not appear to

be under the influence of alcohol or any narcotic drug – a fact expressly incorporated into the trial

court’s findings.

       In his brief to this Court, Martinez argues that we should place significant weight in our

analysis on the fact that neither of the detectives provided him with the means to contact an

attorney once he requested one and that they instead simply left him sitting alone in a holding cell

where they had placed him. However, Detective Lara explained that his intention by his actions

was to afford Martinez the right he requested by not speaking to him. In accordance with their

usual procedures, the detectives also needed more time to complete a complaint affidavit before


                                                 15
taking Martinez to a magistrate who would then be able to appoint an attorney for Martinez’s

representation. Additionally, the detectives’ failure to immediately find Martinez an attorney

during the short passage of time before he reinitiated contact with them did not demonstrate that

the detectives intended to deprive him of access to counsel in any coercive fashion. Cf. Engleton,

2015 WL 1285202, at *5 (rejecting appellant’s contention that the passage of 15 minutes from the

time that he invoked his rights until the time he reinitiated contact with police necessarily

compelled the conclusion that appellant believed his initial requests had been ignored).

       Based on the totality of the circumstances detailed above, we hold that Martinez

knowingly, intelligently, and voluntarily waived his Miranda rights because his own testimony

necessitates our conclusion and the record provides further support. See Joseph, 309 S.W.3d at

25; see also Gately, 321 S.W.3d at 78 (holding that, even though the defendant never expressly

waived his rights, a knowing, intelligent, and voluntary waiver could be inferred where the

defendant was advised of his rights, stated that he understood his rights, agreed with the

interviewing detective that he wanted to speak to the detective, and willingly participated in the

interview). We overrule Martinez’s first issue presented for review.

           Issue Two: Whether the Nexus Between Martinez’s Arrest and Statement
                                was Sufficiently Attenuated

       In his second issue, Martinez argues that the trial court erred when it failed to suppress his

statement as fruit of an unlawful warrantless arrest. He asserts that he voluntarily went to the

CAP’s office to be interviewed by detectives. But after detectives explained that he had the right

to an attorney and he unequivocally invoked his right to counsel; he was placed under arrest for

murder. Under these circumstances, Martinez argues that his arrest was illegal and the statement

that was obtained almost immediately after his illegal warrantless arrest should have been

                                                16
suppressed. Responding, the State first concedes that Martinez’s arrest did not fall under one of

the statutory exceptions for a warrantless arrest pursuant to the Code of Criminal Procedure. To

that extent, the State acknowledges the arrest was statutorily non-compliant and thereby subject to

an attenuation-of-taint analysis under factors set out in Brown v. Illinois.5 Nonetheless, the State

argues that Martinez’s arrest was supported by probable cause. The State asserts that detectives

had obtained a statement from Rico, which implicated Rico and Martinez, and Rico’s statement

was sufficient to establish probable cause to arrest Martinez for robbery, at the very least, and,

more severely, for capital murder. Supported by probable cause, the State argues that Martinez’s

warrantless arrest did not violate the Fourth Amendment. The State argues that the nexus between

Martinez’s arrest and his statement was sufficiently attenuated to dissipate the taint of any prior

illegality. Thus, the State argues that Martinez’s warrantless arrest constituted only a statutory,

rather than constitutional, violation.

                                                    Attenuation

           The “fruit of the poisonous tree” doctrine generally precludes the use of evidence obtained

following an illegal arrest. See Wong Sun v. U.S., 371 U.S. 471, 484 (1963); Monge v. State, 315

S.W.3d 35, 40 (Tex. Crim. App. 2010). Evidence that is sufficiently attenuated from an unlawful

arrest is not considered to have been obtained therefrom. Monge, 315 S.W.3d at 40. The

prosecution carries the burden of proving attenuation. Id.

           In deciding whether a defendant’s confession, which follows an illegal arrest, was

sufficiently attenuated as to permit its use at trial, we are to consider the following factors:

           (1) whether Miranda warnings were given;


5
    See Brown v. Illinois, 422 U.S. 590, 603-604 (1975).

                                                           17
       (2) the temporal proximity of the arrest and the confession;

       (3) the presence of intervening circumstances; and

       (4) the purpose and flagrancy of the official misconduct.

See Brown v. Illinois, 422 U.S. 590, 603-04 (1975); Monge, 315 S.W.3d at 40. These factors do

not necessarily carry equal weight. See Monge, 315 S.W.3d at 40; Bell v. State, 724 S.W.2d 780,

788-89 (Tex. Crim. App. 1986). No single factor is decisive. Instead, we must examine each

factor in turn then consider the effect of all factors taken as a whole. Monge, 315 S.W.3d at 40.

                                            Application

                            The Administration of Miranda Warnings

       Miranda warnings are an important and necessary factor in determining whether the

confession is obtained by exploitation of an illegal arrest. Id. However, the fact that a Miranda

warning has been given is not alone sufficient to break the causal connection between an illegal

arrest and the confession. Id. In this case, Martinez was given Miranda warnings at the beginning

of each of his two videotaped interviews. Repetition of warnings weighs in the State’s favor. See

id. at 40-41 (holding that this first factor weighed in the State’s favor where a single Miranda

warning was given to the defendant before his confession).

                     The Temporal Proximity Between Arrest and Confession

       Temporal proximity is generally not a strong determining factor. Id. at 41. Nevertheless,

if there is a short period of time—usually, under three hours—between the illegal arrest and the

confession, this factor will weigh in favor of the defendant. Id. The State concedes that this factor

weighs in Martinez’s favor, and we find that the record supports that concession where only 27

minutes elapsed between his first and second interview. See id. (holding that this second factor


                                                 18
weighed in the defendant’s favor where there was only a short, approximately two-hour period of

time between the defendant’s illegal arrest and confession).

                           The Presence of Intervening Circumstances

       The presence of an intervening circumstance is an important factor. Id. Generally, a

confession obtained through custodial interrogation after an illegal arrest should be excluded

unless intervening events break the causal connection between the illegal arrest and the confession

so that the confession is sufficiently an act of free will to purge the primary taint. Id. However,

the lack of intervening circumstances is not dispositive if other Brown factors weigh strongly in

favor of the State. Id. A defendant’s request to speak with a detective after an unlawful arrest, as

a product of his own free will, has been recognized as being an intervening circumstance that

“weighs heavily in the State’s favor” in the attenuation analysis. See Crutsinger v. State, 206

S.W.3d 607, 611 (Tex. Crim. App. 2006) (holding that this third factor weighed heavily in the

State’s favor because the defendant’s request to speak to a detective was an intervening

circumstance and a product of his own free will where the defendant became emotional very

shortly after the detective stepped out of the holding room, stated that he had “messed up,” and

asked to speak to the detective); see also Bell, 724 S.W.2d at 789 n.5 (observing that one example

of a significant intervening circumstance would include a volunteered statement that was not made

in response to police interrogation).

       Here, the trial court found that Martinez reinitiated contact with Detective Lara. This

finding is supported by the record based not only on Martinez’s testimony that Martinez flagged

down Detective Lara without any prompting, but also by his own admission in his second

videotaped interview that he had done so. As discussed above, Martinez further admitted that he


                                                19
understood his rights, waived them, and voluntarily gave his statement. We therefore hold that

Martinez’s re-initiation of communication with Detective Lara was an intervening circumstance

borne of his own free will, which supports the weighing of this factor heavily in the State’s favor.

See Crutsinger, 206 S.W.3d at 611; see also Bell, 724 S.W.2d at 789 n.5.

                        The Purpose and Flagrancy of Official Misconduct

       Purpose and flagrancy of official misconduct is one of the most important factors to be

considered. Monge, 315 S.W.3d at 42. When official misconduct is the most flagrantly abusive,

the standard for the State to prove attenuation is elevated to require the clearest indications of

attenuation. Id. Examples of such abusive conduct may include reliance on factors in making an

arrest which were so lacking in indicia of probable cause as to render belief in its existence entirely

unreasonable, an arrest effectuated as a pretext for collateral objectives, or an arrest which is

unnecessarily intrusive on personal privacy. Id. Similarly, the taint may not be attenuated if the

accused was arrested with no apparent justification and with the sole intent to extract a confession

by exploitation. Id. These examples contrast with situations in which probable cause exists and

the failure to get an arrest warrant amounts to comparatively less serious misconduct. Monge, 315

S.W.3d at 42; see also, e.g., Renfro v. State, 958 S.W.2d 880, 886 (Tex. App. – Texarkana 1997,

pet. ref’d) (observing the important distinction in the attenuation case law from the Court of

Criminal Appeals between a situation involving a constitutional violation and one involving only

a statutory violation and acknowledging this distinction as follows: “It appears the court is saying

that a constitutional violation is of a much more serious nature and would likely constitute flagrant

misconduct, while a statutory violation alone, depending on the misconduct involved, is less likely

to rise to the level of flagrant misconduct, even though it is misconduct nonetheless.”).


                                                  20
       Therefore, in reviewing any potential misconduct of the State, it would aid a reviewing

Court to first determine whether the conduct was a constitutional or statutory violation of a

defendant’s rights. In this regard, the U.S. Supreme Court has instructed that whether an officer

is authorized to make an arrest ordinarily depends, in the first instance, on state law but that a

warrantless arrest satisfies the Fourth Amendment so long as the officer has probable cause to

believe that the suspect has committed or is committing an offense. See Virginia v. Moore, 553

U.S. 164, 173 (2008) (citing Michigan v. DeFillippo, 443 U.S. 31, 36 (1979)); see also Hernandez

v. State, No. 10-14-00302-CR, 2018 WL 1528440, at *4 (Tex. App. – Waco Mar. 28, 2018, pet.

ref’d) (mem. op., not designated for publication). In addition to this constitutional probable-cause

requirement, Texas statutory law requires that a warrantless arrest fall within one of the exceptions

specified in articles 14.01 through 14.04 of the Code of Criminal Procedure. See State v. Martinez,

569 S.W.3d 621, 628 (Tex. Crim. App. 2019); Hernandez, 2018 WL 1528440, at *4; see also TEX.

CODE CRIM. PROC. ANN. arts. 14.01-14.04. However, non-compliance with these requirements is

exclusively a matter of state statutory law and does not constitute a federal-constitutional violation.

See Maixner v. State, 753 S.W.2d 151, 157 (Tex. Crim. App. 1988); Self v. State, 709 S.W.2d 662,

665 (Tex. Crim. App. 1986).

       Probable cause for a warrantless arrest exists if, at the moment the arrest is made, the facts

and circumstances within the arresting officer’s knowledge and of which he has reasonably

trustworthy information are sufficient to warrant a prudent man in believing that the person

arrested had committed or was committing an offense. See Beck v. Ohio, 379 U.S. 89, 91 (1964);

Amador v. State, 275 S.W.3d 872, 878 (Tex. Crim. App. 2009). An accomplice’s statement against

their own penal interest that implicates another person as having committed a crime is inherently


                                                  21
credible and may be sufficient by itself to establish probable cause for an arrest of that other person.

See Chavez v. State, No. 01-07-00563-CR, 2008 WL 5263404, at *2-3 (Tex. App. – Houston [1st

Dist.] Dec. 18, 2008, no pet.) (mem. op., not designated for publication); Cornealius v. State, 870

S.W.2d 169, 171-72 (Tex. App. – Houston [14th Dist.] 1994), aff’d, 900 S.W.2d 731 (Tex. Crim.

App. 1995).

                     An Initial Inquiry: Was there Probable Cause to Arrest?

        In making the initial determination of whether Detectives Lara and Parsons had probable

cause to arrest Martinez, our analysis rests on the two pieces of evidence the detectives had in their

possession at the time Martinez was arrested and placed in the holding cell: (1) the statement from

accomplice Rico; and (2) the statement from witness Robles. As Rico gave a statement, the

contents of his statement could supply the probable cause for Martinez’s arrest if it showed that

Rico was an accomplice, was making a statement against his own penal interest, and was making

a statement that implicated Martinez. See Chavez, 2008 WL 5263404, at *2-3; Cornealius, 870

S.W.2d at 171-72.

        Looking at Rico’s statement, Detective Lara testified that it corroborated the one eventually

obtained from Martinez and that it implicated Martinez “in almost the same fashion that [Martinez]

told us in his statement.” As Rico’s statement mirrored the one eventually made by Martinez, we

look to the contents of Martinez’s statement to determine what facts the detectives possessed at

the time they arrested Martinez. In that statement, Martinez admitted that he set up the meeting

with Mina and that he, Rico, and Andrade agreed that they would rob Mina by, at the very least,

physically assaulting him. Andrade had told Martinez that he was going to hit Mina with

something or stab him, and Martinez noticed that Andrade “saw the bat . . . on the floor and shit


                                                  22
and he grabbed it.” After hearing a thud, Martinez saw Mina knocked out cold and lying on the

ground, and the other two accomplices then put Mina in the trunk. Martinez also described steps

that he, Rico, and Andrade took after the robbery to conceal evidence of what they did, such as

changing clothes at Robles’s home, burning what appeared to be clothes, discussing the need to

get rid of the aluminum bat, and tearing plastic from Rico’s car to avoid being “on the radar of the

cops.” Based on this description of the offense given by Martinez that recited the commission of

Mina’s murder “in almost the same fashion” as Rico’s statement, we hold that Rico’s statement

was one made by an accomplice against his own interest that implicated Martinez in the crime

against Mina and that it could be considered, along with other evidence, in determining whether

probable cause existed to arrest Martinez. See Chavez, 2008 WL 5263404, at *2-3; Cornealius,

870 S.W.2d at 171-72.

       Furthermore, turning to Robles’ statement, Robles told Detective Parsons that Andrade had

admitted his involvement in Mina’s murder, and this admission by Andrade to Robles was

corroborated by Martinez’s statement. Detective Lara also testified that his investigation up to the

point that he met Martinez led him to conclude that Martinez had been a party to the commission

of Mina’s murder.

       Although the investigation was still ongoing, the information that the detectives possessed

from the combined statements, which was coupled with their own investigation, provided probable

cause to arrest Martinez for, at the very least, robbery or even the eventually-charged offense of

capital murder at the time the detectives placed him in the holding cell. See Beck, 379 U.S. at 91;

Amador, 275 S.W.3d at 878 (defining probable cause as reasonably trustworthy information

sufficient to warrant a prudent person in believing that the person arrested had committed an


                                                23
offense); see also Cornealius, 870 S.W.2d at 172 (holding that the arresting officer had probable

cause to arrest the defendant where two accomplices gave statements inculpating both themselves

and the defendant in a robbery that was committed on four victims and that resulted in three

deaths).

       Martinez argues that Rico’s statement to police could not have provided sufficient probable

cause to arrest him because it was accomplice-witness testimony that required corroboration from

another source. Martinez cites Zamora v. State for the proposition that the plain language of the

accomplice-witness statute in article 38.14 of the Code of Criminal Procedure “reflects legislative

determination that accomplice testimony must be viewed with caution because accomplices often

have incentives to lie to avoid punishment or shift blame.” See Zamora v. State, 411 S.W.3d 504,

513-14 (Tex. Crim. App. 2013). But as noted by the State, the plain language of the statute also

expressly states that it applies to evidence relied upon to secure a “conviction.” TEX. CODE CRIM.

PROC. ANN. art. 38.14. Furthermore, guidance from the U.S. Supreme Court has made clear that

the issue of a defendant’s guilt is distinct from the issue of probable cause and that the probable-

cause showing does not employ the litany of adversarial safeguards employed in a trial of a

criminal offense. See DeFillippo, 443 U.S. at 36 (“We have made clear that the kinds and degree

of proof and the procedural requirements necessary for a conviction are not prerequisites to a valid

arrest.”); Gerstein v. Pugh, 420 U.S. 103, 120-21 (1975) (observing that the “adversary

safeguards” used in deciding guilt in a criminal case “are not essential for the probable cause

determination required by the Fourth Amendment”); Brinegar v. U.S., 338 U.S. 160, 172-73

(1949) (recognizing the “difference between [what] is required to prove guilt in a criminal case

and what is required to show probable cause for arrest” and the “large difference between the two


                                                24
things to be proved, as well as between the tribunals which determine them, and therefore a like

difference in the quanta and modes of proof required to establish them”).

       Martinez also points to the lack of any admission on his part to involvement in the assault

that resulted in Mina’s death as a controlling factor of our analysis. But under section 7.02(b) of

the Penal Code, all conspirators engaged in an attempt to commit one felony are criminally

responsible for a separate felony actually committed by one of the conspirators, even though none

of the conspirators had any intent to commit it, if the separate felony was: (1) committed in

furtherance of the unlawful purpose; and (2) one that should have been anticipated as a result of

the carrying out of the conspiracy to attempt the initial felony. TEX. PENAL CODE ANN. § 7.02(b).

Therefore, if the evidence demonstrates that a defendant conspired to commit robbery and, during

the robbery, one of the co-conspirators commits capital murder, the defendant can be held

criminally responsible for capital murder if it was in furtherance of the conspiracy’s unlawful

purpose and should have been anticipated. Pollard v. State, 392 S.W.3d 785, 801 (Tex. App. –

Waco 2012, pet. ref’d); see also Jacques v. State, No. 08-02-00491-CR, 2004 WL 1801202, at *7

(Tex. App. – El Paso Aug. 12, 2004, pet. ref’d) (not designated for publication).

       The facts provided to police through Rico’s statement, corroborating and reciting details

“in almost the same fashion” as Martinez’s statement, show that Martinez was a co-conspirator

under section 7.02(b) of the Penal Code. Martinez, Andrade, and Rico agreed to rob Mina, and

they all acknowledged that Andrade was going to assault Mina to accomplish it. Despite

Martinez’s difference of opinion on how the assault should have been carried out, Andrade told

Martinez that he was going to hit Mina with something or stab him. And although Martinez at one

point denied seeing Andrade holding the aluminum bat, Martinez stated, “I guess he saw the bat


                                                25
like on the floor and shit and he grabbed it.” Even though Martinez checked Mina’s pulse when

he saw Mina knocked out cold and lying on the ground, he simply went back inside Rico’s car.

Afterwards, the three accomplices engaged in various acts to conceal evidence of what they did.

The circumstances here show that Martinez could be held liable for the capital murder of Mina

that resulted from the agreed-upon robbery. See Jacques, 2004 WL 1801202, at *7 (holding that

the evidence was sufficient for the jury to find that the defendant was guilty of capital murder

under a conspiracy theory where: (1) the defendant entered into an agreement with a co-conspirator

to rob the victim; (2) the co-conspirator’s actions were committed in furtherance of the robbery;

and (3) the defendant knew the co-conspirator carried a gun); see also Hanson v. State, 55 S.W.3d

681, 691-92 (Tex. App. – Austin 2001, pet. ref’d) (holding that the evidence was legally sufficient

to sustain the defendant’s conviction for capital murder as a co-conspirator because he knew about

the plan to rob the victim by hitting him over the head, the weapon was carried to the robbery in

the defendant’s knapsack, and the defendant retrieved the weapon after the murder).

       In sum, we resolve this initial inquiry under the fourth attenuation factor in favor of the

State holding that Martinez’s arrest by Detectives Lara and Parsons met the constitutional standard,

given it was supported by probable cause, but, even so, it violated Texas’ statutory law. See

Maixner, 753 S.W.2d at 157; Self, 709 S.W.2d at 665. Under these circumstances, we are faced

with a situation involving comparatively less serious misconduct. See Monge, 315 S.W.3d at 42;

Renfro, 958 S.W.2d at 886. And we now turn to reviewing the remainder of facts under this fourth

factor through a comparatively lesser level of scrutiny given the lack of constitutional violation.

         Was the Official Misconduct Flagrant in Light of the Statutory-only Violation?

       Martinez’s interaction with police began when plain-clothes officers in a regular, unmarked


                                                 26
car brought Martinez to the police office. Martinez was not handcuffed and was allowed to sit in

a family area with a television that was separate from the interview room. When Martinez later

requested an attorney, Detectives Lara and Parsons ceased their questioning in respect of

Martinez’s right to not speak to them without an attorney being present. Both detectives explained

at the suppression hearing that they believed their arrest of Martinez was proper based on the

evidence they obtained from speaking to other witnesses. Nevertheless, both detectives then began

preparing a complaint affidavit to secure an arrest warrant. Detective Lara explained that he had

not yet had the opportunity to escort Martinez to a magistrate to have an attorney appointed for

him when Martinez himself flagged him down. Detective Lara also explained that he was unaware

of any policies of his department that required him to immediately locate an attorney for a suspect

who has requested one. Most importantly, both detectives testified that they did not use any

coercion, promises, or denial of basic amenities to procure Martinez’s statement. Based on the

absence of flagrant or bad-faith conduct, combined with a statutory-only violation of Martinez’s

rights, we hold that this fourth factor weighs in the State’s favor, as well. See Monge, 315 S.W.3d

at 42-43 (holding that this fourth factor weighed in the State’s favor in the absence of flagrantly

abusive police misconduct where the detectives had probable cause to arrest the defendant, where

the detective in charge testified that he chose not to procure a warrant based on his

misunderstanding of article 14.03(a)(6) of the Code of Criminal Procedure, where the defendant

went to the police station voluntarily, where the defendant was not held for an extraordinary or

coercive length of time, where the detectives were civil and non-coercive while the defendant was

at the station, and where the detectives gave the defendant a ride to the station and provided him

with several gratuitous amenities while he was there); Crutsinger, 206 S.W.3d at 611 (holding that


                                                27
this fourth factor weighed in the State’s favor where the police arguably had enough information

to get a warrant based upon probable cause and where, even though an officer improperly arrested

the defendant, the officer thought the arrest was correct under the circumstances).

                                 The Balance of Brown Factors

       Three of the four attenuation-of-taint factors weigh in the State’s favor here. Furthermore,

the only factor weighing in Martinez’s favor, the temporal proximity factor, is generally not a

strong determining factor. Monge, 315 S.W.3d at 41. After balancing all factors, we hold that the

State met its burden of proving that the evidence obtained from Martinez’s second videotaped

statement was sufficiently attenuated from the unlawful arrest. See id. at 40-43. We overrule

Martinez’s second issue presented for review, as well.

                                         CONCLUSION

       The trial court’s judgment is affirmed.


                                             GINA M. PALAFOX, Justice
October 31, 2019

Before Alley, C.J., Rodriguez, and Palafox, JJ.

(Publish)




                                                  28
