                                                                             ACCEPTED
                                                                        13-15-00075-CR
                                                        THIRTEENTH COURT OF APPEALS
                                                               CORPUS CHRISTI, TEXAS
                                                                   12/7/2015 3:15:24 PM
                                                                       Dorian E. Ramirez
                                                                                  CLERK

                    No. 13-15-00075-CR

                                                FILED IN
                                        13th COURT OF APPEALS
                                     CORPUS CHRISTI/EDINBURG, TEXAS
          In the   Thirteenth Court of Appeals
                                         12/7/2015 3:15:24 PM
                      Edinburg, Texas     DORIAN E. RAMIREZ
                                                 Clerk




                   JUAN MANUEL ALFARO,
                                     Appellant
                            V.

                      STATE OF TEXAS,
                                           Appellee



         APPEAL FROM CAUSE NO. CR-3287-14-H
         TH
      289 District Court, Hidalgo County, TEXAS
             HON. Leticia “Letty” Lopez,
                   Judge Presiding



 Appellant’s Brief Submitted in Accordance with Anders
                     v. California



                                 O. Rene Flores
                                 State Bar No. 24012637
                                 O. Rene Flores, PC
                                 1308 S. 10th Ave.
                                 Edinburg, TX 78539
                                 (956)383-9090
                                 (956)383-9050 (fax)
                                 Counsel for Appellant

NO ORAL ARGUMENT REQUESTED

                                                                     1
            IDENTITY OF PARTIES AND COUNSEL

Appellant                        Appellate Counsel
JUAN MANUEL ALFARO               O. Rene Flores
                                 1308 S. 10th Ave.
                                 Edinburg, Texas 78539
                                 (956) 383-9090
                                 (956) 383-9050

                                 Trial Counsel
                                 Armando Marroquin
                                 Marroquin Law Firm
                                 421 S. 12th Street
                                 McAllen, Texas 78501
                                 (956) 287-7400


Appellee                         Appellee’s Counsel
STATE OF TEXAS                   Theodore “Ted” Hake
                                 Assistant DA
                                 Hidalgo County DA
                                 100 N. Closner
                                 Edinburg, Texas 78539
                                 (956) 318-2300
                                 (956) 318-2301

                                 Trial Counsel
                                 Hope Palacios
                                 Assistant DA
                                 Hidalgo County DA
                                 100 N. Closner
                                 Edinburg, Texas 78539
                                 (956) 318-2300




                                                        2
                     TABLE OF CONTENTS

Identity of Parties and Counsel …………………………………………2

Table of Contents…………………………………………………………………………………3

Index of Authorities…………………………………………………………………………4

Anders Statement …………………………………………………………………………………8

Statement of the Case ……………………………………………………………………9

Issues Presented ………………………………………………………………………………10

Statement of Facts …………………………………………………………………………10

Summary of the Argument ……………………………………………………………15

Argument ……………………………………………………………………………………………………16

Possible Issue 1: After review of the Record on
appeal and after reviewing the current state of
the law, the undersigned finds that the Court did
not abuse its discretion when it denied Appellant
Alfaro’s Motion to Suppress Statements.

Possible Issue 2: After review of the Record on
appeal and after reviewing the current state of
the law, the undersigned finds there was no error
in not including a 38.23 charge on admission of
Appellant Alfaro's statement.

Possible Issue 3: After review of the Record on
appeal and after reviewing the current state of
the law, the undersigned finds that Appellant
Alfaro’s finding of guilt was supported by the
evidence.

Prayer for Relief ……………………………………………………………………………57


                                                    3
                      Index of Authorities

Cases

 1.     Almanza    v.   State,      686    S.W.2d   157,       171
      (Tex.Crim.App.1985)

 2.     Alvarado    v.    State,    912    S.W.2d   199,       211
      (Tex.Crim.App.1999)

 3. Anders v. California, 386 U.S. 738 (1967)

 4. Beecher v. Alabama, 389 U.S. 35, 88 S.Ct. 189, 19
   L.Ed.2d 35 (1967).

 5.     Bell    v.    State,       582    S.W.2d    800,       812
      (Tex.Crim.App.1979);

 6.     Cain v. State, 18 Tex. 387, 389–90 (1857)

 7.     Casias    v.    State,     452    S.W.2d    483,       488
      (Tex.Crim.App.1970).

 8.     Colorado v. Connelly, 479 U.S. 157, 107 S.Ct. 515, 93
      L.Ed.2d 473

 9.     Culombe v. Connecticut, 367 U.S. 568, 81 S.Ct. 1860,
      6 L.Ed.2d 1037 (1961).

 10.   Davis v. North Carolina, 384 U.S. 737, 86 S.Ct.
   1761, 16 L.Ed.2d 895 (1966).

 11.   Delgado    v.   State,   235    S.W.3d       244,       249
   (Tex.Crim.App.2007) (footnote omitted)

 12.   Foster    v.   State,    101   S.W.3d        490,       497
   (Tex.App.Houston [1st Dist.] 2002, no pet.)


                                                           4
13.   Greenwald v. Wisconsin,         390     U.S.    519,    88    S.Ct.
  1152, 20 L.Ed.2d 77 (1968).

14.   Hamlin v. State, 39 Tex.Crim. 579, 47 S.W. 656
  (1898).

15.   High v. State, 573 S.W.2d 807, 813 (Tex. Crim. App.
  [Panel Op.] 1978),

16.   Huizar v. State, 12 S.W.3d 479 (Tex.Crim.App.2000).

17.   Madden     v.      State,            242        S.W.3d            504
  (Tex.Crim.App.2007).

18.   Mendoza    v.    State,         88      S.W.3d      236,          239
  (Tex.Crim.App.2002).

19.   Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602,
  16 L.Ed.2d 694 (1966).

20.   Mincey v. Arizona, 437 U.S. 385, 98 S.Ct. 2408, 57
  L.Ed.2d 290 (1978).

21.   Nenno    v.    State,      970        S.W.2d        549,          556
  (Tex.Crim.App.1998),

22.   Payne v. Arkansas, 356 U.S. 560, 78 S.Ct. 844, 2
  L.Ed.2d 975 (1958).

23.   Perry v. State, 158 S.W.3d at 446 (U.S.1986).

24.   Posey    v.     State,      966            S.W.2d       57,        60
  (Tex.Crim.App.1998)

25.   Reck v. Pate, 367        U.S.    433,      81   S.Ct.    1541,     6
  L.Ed.2d 948 (1961).

                                                                    5
  26.      Rice v. Cooper, 148 F.3d 747, 750 (7th Cir.1998).

  27.   Ritchie v. State, 164 Tex.Crim. 38, 296 S.W.2d 551,
    554 (1956).

  28.   Rocha    v.    State,      16        S.W.3d      1,     19–20
    (Tex.Crim.App.2000)

  29.   Rogers   v.   State,      549       S.W.2d    726,      729–30
    (Tex.Crim.App.1977)

  30.   State    v.   Terrazas,         4    S.W.3d      720,        727
    (Tex.Crim.App.1999)

  31.   Vasquez     v.       State,         225       S.W.3d         541
    (Tex.Crim.App.2007).,

  32.      Warren v. State, 29 Tex. 369 (1867)

  33.   Wolfe    v.    State,      917       S.W.2d      270,        282
    (Tex.Crim.App.1996).
Statutes

  1.    TEX.CODE CRIM. PROC. art. 15.17, O’Connor’s Criminal
        Codes Plus, (2015-2016)

  2.    TEX.CODE CRIM. PROC. art. 36.14, O’Connor’s Criminal
        Codes Plus, (2015-2016)

  3.    TEX.CODE CRIM. PROC. art. 36.19, O’Connor’s Criminal
        Codes Plus, (2015-2016)

  4.    TEX.CODE CRIM. PROC. art. 37.07, O’Connor’s Criminal
        Codes Plus, (2015-2016)

  5.    TEX.CODE CRIM. PROC. art. 38.21, O’Connor’s Criminal
        Codes Plus, (2015-2016)

                                                                 6
  6.    TEX.CODE CRIM. PROC. Art. 38.22 (2), O’Connor’s
        Criminal Codes Plus, (2015-2016)

  7.    TEX.CODE CRIM. PROC. Art. 38.22 (2)(a), O’Connor’s
        Criminal Codes Plus, (2015-2016)

  8.    TEX.CODE CRIM. PROC. Art. 38.22 (3), O’Connor’s
        Criminal Codes Plus, (2015-2016)

  9.    TEX.CODE CRIM. PROC. Art. 38.22 (3)(a), O’Connor’s
        Criminal Codes Plus, (2015-2016)

  10. TEX.CODE CRIM. PROC. art. 38.22(6), O’Connor’s
      Criminal Codes Plus, (2015-2016)

  11. TEX.CODE CRIM. PROC. Art. 38.22 (7), O’Connor’s
      Criminal Codes Plus, (2015-2016)

  12. TEX.CODE CRIM. PROC. Art. 38.23, O’Connor’s Criminal
      Codes Plus, (2015-2016)

  13. TEX.CODE CRIM. PROC. Art. 38.23(a), O’Connor’s
      Criminal Codes Plus, (2015-2016)


Other



 1. George E. Dix, “Voluntariness” and “Intelligence”
    of Confessions as “Independent” Texas Law Issues,
    20 TEX. TECH L.REV. 1017, 1080, 1091 (1989).




                                                          7
                            Anders Statement
      This brief is being submitted in accordance with

Anders v. California, 386 U.S. 738 (1967). I affirm

that I have reviewed the complete Clerk’s Record and

all   fifteen    (15)       volumes   of    the    Reporter’s      Record,

which    include      arraignment,         pretrial    hearings,        jury

selection     and     the    unitary       trial   proceedings          given

Appellant Alfaro’s plea of guilty to the jury. After

having carefully examined this record and researching

the relevant statutes and case law, I have concluded

that this case presents no meritorious grounds of error

upon which an appeal can be predicated. Therefore, I

request the Court’s permission to withdraw as attorney

of record and to allow appellant to file any further

briefs he deems necessary or appropriate.

      In accordance with High v. State, 573 S.W.2d 807,

813   (Tex.   Crim.     App.    [Panel      Op.]     1978),    I   further

affirm   that,      simultaneous       with    the    filing       of   this

brief, I am serving a copy of the brief and my Motion

to    Withdraw   on     Appellant,     accompanied       by    a    letter


                                                                            8
informing Appellant of his right to review the record

and to file a pro se response.

                         Statement of the Case


     On    September      4,       2014,   Appellant      was    charged    by

indictment      with     the       offense   of    Aggravated      Robbery.1

Appellant entered a plea of guilty to the allegations

in the indictment on January 14, 2015.2 On January 16,

2015, Appellant was found GUILTY by a jury and the jury

assessed     Appellant’s           punishment     at    fifty    (50)    years

confinement       in    the    Texas       Department     of     Corrections

Institutional          Division.3      The     trial     court    certified

Appellant’s       right       to     appeal,      and    his    appeal     was

perfected on February 6, 2015.4




1
  CR6
2
  Defendant is arraigned in front of the jury. RR13@5; Appellant Alfaro
PLEADS “guilty” to the jury. RR13@6; Court admonishes and inquires several
times whether he understands what he’s doing – to which the Appellant Alfaro
advises – Yes. RR13@6-7
3
  CR97; RR14@149-152
4
  CR100; 105

                                                                               9
                              Issues Presented


      My review of the record reveals no issues which can

be    advanced     on    appeal       in    good      faith.   Any    arguable

points that could exist are identified herein below and

discussed with respect to why they are not meritorious

appealable issues.

                           Statement of Facts
      The State of Texas approached this case as “crime

spree.”      The evidence adduced at trial after Appellant

Alfaro pleaded guilty to the jury served to support the

plea and further served to support the State’s theory.

      At trial, the evidence showed that on August 1,

2014, Hidalgo County Sheriff’s deputies responded to an

assault     later     classified           as   an    aggravated     robbery.5

Upon his arrival, Deputy Juan Garcia made contact with

Ranulfo Dantes Mars who although overwhelmed, bleeding

and    in   shock       was    able    to       describe   what      had    just

happened.6          Mars      was     able       to    describe      what   the

5
  RR13@13
6
  RR13@15-16; RR15@State’s Exhibit 15 and 16 show the jury that his shirt was
bloody and he had injuries to the side of his head.

                                                                              10
assailants were wearing; he also described the truck

the     assailants        were    driving.       At    this    time,    deputy

Garcia also observed three spent casings found at the

scene        where      the    assault    took        place.      This        was

consistent with Mars’ explanation that shots were fired

at     a     passing     vehicle.        This    information          would   be

corroborated            through    another      witness       later    in     the

trial.7

        While at that scene, Deputy Garcia makes contact

with another individual reporting another incident just

up     the       road   from   that   location.          Apparently,        this

second individual was advised to travel to where Deputy

Garcia was making contact with Mars.8

        Investigator Ruben Silva testified that after he

took a written statement from Mars, he made contact

with two individuals at the County Sheriff’s substation

in Weslaco, Texas.             There he identified Luis Amador and

Appellant Juan Manuel Alfaro as suspects in this case.9


7
    RR13@13-22
8
    RR13@21
9
    RR13@31-34

                                                                               11
Investigator       admitted      that    Appellant       Alfaro         appeared

intoxicated but further advised the jury that Appellant

seemed to be in his right frame of mind.                          He testified

that     Appellant      understood       English       and        Spanish;    he

testified       that    while      Appellant         Alfaro       smelled     of

alcohol, he was not too intoxicated to have understood

his rights.          Investigator       Silva further advised the

jury that Appellant Alfaro was properly Mirandized and

waived    any    rights     he   had    to     an    attorney       and/or     to

terminate any interview.10

       Investigator      Adam     Palmer       was   called        to     testify

about    yet    another     incident      on    August       1,    2014.      He

testified about a “call” to a Gentleman’s Club not far

from the original call.                 There, the same truck was

described.      There     again,     shots     were    reported          fired.11

Palmer also related to the jury about this case and how

the     same    description       of    the     assailants          and    their

vehicle was given.           In all, Palmer told the jury about

three      different         robberies          involving          the       same
10
   RR13@34-38; Note that on cross-examination, Silva admitted that Appellant
appeared intoxicated at 3:02am. RR13@39; See also RR13@37, 42
11
   RR13@42-45

                                                                               12
descriptions and shots fired.                       The responding officers

and      investigators            noticed     a     pattern     and    began    to

believe the same suspects were committing all of these

robberies.           At    that     point,    Palmer      and   his    Sheriff’s

Department believed they were in fact dealing with a

“spree.”12

        Palmer would testify about a couple more incidents

in Alamo, Texas later that night.                         At some point, an

eye-witness flagged down a Sheriff’s Deputy and was

shown where the shooters had apparently fled to hide.

Deputy       Cindy        Caceres    was     able    to   detain      Amador    and

Appellant Alfaro.                 They were taken into custody and

detained        at    the    Hidalgo       County     Sheriff’s       Department

substation in Weslaco, Texas.13

        At 6am, Palmer made contact with Appellant Alfaro;

Palmer        and     Investigator          Avila     ended     up    getting    a

written statement of accused from Appellant Alfaro.14

Appellant Alfaro and Luis Amador implicated themselves


12
     RR13@41-46
13
     RR13@52-53
14
     RR15@State’s Exhibit 36; RR13@55-57

                                                                                 13
and further led investigators to the mobile home where

they     were     originally     detained.15         Armed     with    this

information, a warrant was executed and a two weapons

were recovered.16 Along with these weapons were live

rounds of ammunition stamped with the same brand as the

spent casings found at the scene and in the suspect

vehicle     which     was    later    processed.17           Palmer    also

testified that these weapons matched the descriptions

given at the scene.18

       Investigator      Alfredo       Avila     made      contact     with

Appellant Alfaro just before 6 am and according to him,

Appellant Alfaro had the normal use of his mental and

physical        faculties.       Avila     advised      that    Appellant

Alfaro     was     cooperative       and   agreed     to    give     him     a




15
   RR13@57, 74; Note that Palmer testified he didn’t know Alfaro was
intoxicated. He observed Appellant Alfaro to be fine and in his right mind
and very cooperative. RR13@74-78
16
   RR13@57-63
17
   RR13@61-62, 65; RR15@State’s Exhibit 24-28, 6-9
18
   RR13@63

                                                                             14
statement.19        On cross examination, Investigator Avila

advised that Appellant Alfaro admitted everything.20




                      Summary of the Argument

     The undersigned counsel has reviewed the record on

appeal thoroughly is unable to identify any legally

non-frivolous issues. The only areas in which arguable

issues    could     arise    would    be:    (1)    Whether       the     trial

court erred by denying Appellant’s Motion to Suppress

Statement;          (2)     Whether      there     was     error     in    not

including an instruction on the voluntariness of the

statement      of    accused;      and      (3)    Whether        there    was

sufficient evidence to support the conviction.

     After      reviewing      the     appellate         record     and     the

current state of the law, the undersigned is of the

opinion that the issues identified herein would not be

viable appealable issues.


19
   RR15@State’s Exhibit 18 and 36. These Exhibits represent the Miranda Form
signed by Appellant Alfaro and the Statement of Accused signed by Appellant
Alfaro – they were offered and admitted without objection.; RR13@83-88
20
   RR13@97-99

                                                                             15
                                     Argument
Possible Issue 1: After review of the Record on appeal
and after reviewing the current state of the law, the
undersigned finds that the Court did not abuse its
discretion when it denied Appellant Alfaro’s Motion to
Suppress Statements.




Applicable Law
     Under Article 38.21, “A statement of an accused may

be used in evidence against him if it appears that the

same was freely and voluntarily made without compulsion

or    persuasion.”21         A       defendant    may   claim    that        his

statement was not freely and voluntarily made and thus

may not be used as evidence against him under several

different theories: (1) Article 38.22, § 6 - general

voluntariness; (2) Miranda v. Arizona22 as expanded in

Article     38.22,      §§       2    and   3    (the   Texas   confession

statute); or (3) the Due Process Clause.23 It may be

involuntary under one, two, or all three theories.

     A. Claims of involuntariness under the Due Process
        Clause and Miranda

21
   TEX.CODE CRIM. PROC. art. 38.21, O’Connor’s Criminal Codes Plus, (2015-
2016)
22
   384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966)
23
   Wolfe v. State, 917 S.W.2d 270, 282 (Tex.Crim.App.1996).

                                                                              16
     A confession may be involuntary under the Due Process

Clause when there is police overreaching.24 Even if a

confession is not the product of a meaningful choice,

it is nonetheless “voluntary” within the meaning of the

Due     Process      Clause     absent      some       coercive     police

activity. The Supreme Court made this clear in Colorado

v. Connelly,25 when it held that if there is no police

coercion     or    overreaching,        there     is    no   due-process

violation — even if a suspect is suffering from chronic

schizophrenia and is in a psychotic state following the

“voice of God” at the time he confesses.26 Absent police

misconduct causally related to the confession, there is

24
   See Perry v. State, 158 S.W.3d at 446 (defendant not entitled to any jury
instruction under art. 38.23(a) as evidence of his intoxication and injury
“does not raise any constitutional voluntariness issues because this evidence
does not involve any police coercion or other official over-reaching.”);
Alvarado v. State, 912 S.W.2d 199, 211 (Tex.Crim.App.1999) (statement
involuntary under federal due process “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”).
25
   479 U.S. 157, 107 S.Ct. 515, 93 L.Ed.2d 473 (U.S.1986).
26
   Id. at 164, 107 S.Ct. 515. In Connelly, the defendant approached a Denver
police officer and said that “he had come all the way from Boston to confess
to the murder of Mary Ann Junta, a young girl whom he had killed in Denver
sometime during November 1982.” Id. at 160, 107 S.Ct. 515. Unbeknownst to the
police (who scrupulously followed the dictates of Miranda), the defendant was
apparently obeying the “voice of God” which had instructed him “to withdraw
money from the bank, to buy an airplane ticket, and to fly from Boston to
Denver.” Id. at 161, 107 S.Ct. 515. Even though the evidence showed that the
defendant was suffering from “command hallucinations that interfered with his
volitional abilities; that is, his ability to make free and rational choices”
and “he wasn't capable of making a ‘free decision’ to waive his Miranda
rights,” his confession was not involuntary under the Fifth Amendment. Id. at
161–64, 169–71, 107 S.Ct. 515.

                                                                           17
“simply no basis for concluding that any state actor

has deprived a criminal defendant of due process of

law.”27 The Due Process Clause is aimed at protecting

suspects from police overreaching, not at protecting

people from themselves or other private actors.

     The same is true for Miranda rights and waivers that

apply       to    custodial-interrogation         statements.     As   the

Supreme Court explained in Connelly: “Miranda protects

defendants against government coercion leading them to

surrender rights protected by the Fifth Amendment; it

goes      no     further    than     that.”28   Thus,   the   defendant's

waiver of his Miranda rights, made under the perception

of coercion flowing from the “voice of God, ... is a

matter to which the United States Constitution does not

speak.”29

     As Judge Posner has explained:

        The significance of the principle of Connelly, the

        principle that the Constitution doesn't protect the


27
     Id. at 164, 107 S.Ct. 515.
28
     Id. at 170, 107 S.Ct. 515.
29
     Id. at 170–71, 107 S.Ct. 515.

                                                                        18
        suspect against himself, is that if he understands

        the    Miranda      warnings      yet     is    moved     by   a   crazy

        impulse to blurt out a confession, the confession

        is    admissible        because    it     is    not   a   product      of

        coercion. The police have given him his Miranda

        warnings in an intelligible form; it is not their

        fault that he is impulsive.30

     Statements that have been found to be involuntary

under Miranda or the Due Process Clause were collected

in      Connelly;31      they    involve        the    crucial    element      of

police overreaching and involve fact scenarios such as

the following: (1) the suspect was subjected to a four-

hour interrogation while incapacitated and sedated in

an     intensive-care         unit;32     (2)    the    suspect,       while   on

medication, was interrogated for over eighteen hours

without food, medication, or sleep;33 (3) the police

officers held a gun to the head of the wounded suspect




30
     Rice v. Cooper, 148 F.3d 747, 750 (7th Cir.1998).
31
     479 U.S. at 164 n. 1, 107 S.Ct. 515.
32
     Mincey v. Arizona, 437 U.S. 385, 98 S.Ct. 2408, 57 L.Ed.2d 290 (1978).
33
     Greenwald v. Wisconsin, 390 U.S. 519, 88 S.Ct. 1152, 20 L.Ed.2d 77 (1968).

                                                                               19
to extract a confession;34 (4) the police interrogated

the    suspect      intermittently         for    sixteen      days     using

coercive tactics while he was held incommunicado in a

closed     cell    without       windows    and    was    given       limited

food;35 (5) the suspect was held for four days with

inadequate        food     and     medical       attention       until     he

confessed;36 (6) the suspect was subjected to five days

of repeated questioning during which police employed

coercive       tactics;37        (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.38

     As is evident from these fact scenarios, 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.”39 They involve an


34
   Beecher v. Alabama, 389 U.S. 35, 88 S.Ct. 189, 19 L.Ed.2d 35 (1967).
35
   Davis v. North Carolina, 384 U.S. 737, 86 S.Ct. 1761, 16 L.Ed.2d 895
(1966).
36
   Reck v. Pate, 367 U.S. 433, 81 S.Ct. 1541, 6 L.Ed.2d 948 (1961).
37
   Culombe v. Connecticut, 367 U.S. 568, 81 S.Ct. 1860, 6 L.Ed.2d 1037 (1961).
38
   Payne v. Arkansas, 356 U.S. 560, 78 S.Ct. 844, 2 L.Ed.2d 975 (1958).
39
   Connelly, 479 U.S. at 167, 107 S.Ct. 515.

                                                                            20
objective        assessment        of       police     behavior.              The

Constitution leaves voluntariness claims based on the

defendant's state of mind “to be resolved by state laws

governing the admission of evidence.”40 In Texas, that

state    law    is    Article      38.22,     the     Texas       Confession

Statute.

     B.   Claims  of   involuntariness               under        the     Texas
     Confession Statute
     Article 38.22 of the Code of Criminal Procedure sets

out rules governing the admissibility of an accused's

written and oral statements that are the product of

custodial interrogation. Under our precedents, however,

Section 6 of Article 38.22 applies to both an accused's

custodial       and    non-custodial         statements       because          it

provides       that   only     “voluntary”       statements             may   be

admitted.41     Sections      2   and   3    apply    to     an    accused's


40
  Id.
41
   State v. Terrazas, 4 S.W.3d 720, 727 (Tex.Crim.App.1999) (“Article 38.22,
Section 6, literally applies to ‘all cases where a question is raised as to
the voluntariness of a statement of an accused.’”). In Terrazas, this court
explicitly overruled Nenno v. State, 970 S.W.2d 549, 556 (Tex.Crim.App.1998),
to the extent that it held that Article 38.22, § 6 applied only to custodial
statements. Id. However, the Court concluded in Terrazas that the trial court
erred, as a matter of law, in ruling that the defendant's statement to a
Department of Human Services investigator could be considered “involuntary.”
Id. at 726 (the investigator “telling [defendant] in a noncustodial setting
‘what had to be’ in her statement is not the type of practice that has been
held to be inherently coercive as to make a statement involuntary”).

                                                                               21
custodial-interrogation               statements       and       provide       that

only “warned and waived” statements may be admitted.

That is, an accused's custodial-interrogation statement

is       not     admissible       unless,      prior      to      making       the

statement, he received the warnings provided in Article

15.17       or    Article       38.22,   §   2(a)    or      §    3(a)     (which

incorporate          the    requirements        of     Miranda),         and     he

knowingly, intelligently, and voluntarily waived those

rights.

     Claims of involuntariness under Article 38.22 can be,

but need not be, predicated on police overreaching, and

they could involve the “sweeping inquiries into the

state       of     mind     of    a   criminal       defendant       who        has

confessed” found in Connelly that are not of themselves

relevant to due process claims.42 Article 38.22 is aimed

at protecting suspects from police overreaching. But

Section 6 of that article may also be construed as

protecting people from themselves because the focus is

upon       whether        the    defendant      voluntarily         made        the


42
     Connelly, 479 U.S. at 166–67, 107 S.Ct. 515.

                                                                                 22
statement. Does it appear — as Article 38.21 requires —

that    the    statement        was   freely     and    voluntarily        made

without compulsion or persuasion?43 Or, in the case of a

custodial-interrogation               statement,       did    the        suspect

“knowingly, intelligently, and voluntarily” waive the

rights set out in Article 38.22 § 2(a) or § (3)(a)?

These     inquiries        do     not     turn     solely       on       police

overreaching. The behavior of the police may or may not

be a factor. A confession given under the duress of

hallucinations,          illness,         medications,44            or      even

intoxication, for example, could be involuntary under

Article 38.21 and the Texas confession statute.45 The

defendant      in   Connelly      did    not   have     a    valid       federal

constitutional         involuntariness         claim,        but,    had     he

confessed in Texas, he might have had a viable claim
43
   TEX.CODE CRIM. PROC. art. 38.21, O’Connor’s Criminal Codes Plus, (2015-
2016) (“A statement of an accused may be used in evidence against him if it
appears that the same was freely and voluntarily made without compulsion or
persuasion, under the rules hereafter prescribed.”).
44
   See, e.g., Rocha v. State, 16 S.W.3d 1, 19–20 (Tex.Crim.App.2000) (trial
court's general jury instruction under articles 38.21 and 38.22 concerning
voluntariness of statement sufficed for jury to consider any evidence of his
illness and medication; no error in denying instruction that specifically
mentioned illness and medication as that would be a comment on the weight of
the evidence).
45
   This has long been the case in Texas. See Cain v. State, 18 Tex. 387, 389–
90 (1857) (“Before confessions can be received in evidence in a criminal
case, it must be shown that they were voluntary. They must not have been
obtained by the influence of hope or fear, applied by a third person to the
prisoner's mind.”).

                                                                              23
under Articles 38.21 and 38.22. As Professor Dix has

noted,       “evidence       of    a     defendant's       psychological

abnormality”         (such        as     Connelly's        evidence        of

hallucinations and following God's command) “has its

full logical relevance” under Texas law.46

     Under     Articles       38.21       and      38.22      and       their

predecessors, fact scenarios that can raise a state-law

claim of involuntariness (even though they do not raise

a    federal     constitutional          claim)    have    in     the   past

included the following: (1) the suspect was ill and on

medication       and     that     fact     may    have     rendered      his

confession involuntary;47 (2) the suspect was mentally

retarded and may not have “knowingly, intelligently and

voluntarily”       waived       his    rights;48     (3)    the     suspect

“lacked the mental capacity to understand his rights”;49

(4) the suspect was intoxicated, and he “did not know


46
   George E. Dix, “Voluntariness” and “Intelligence” of Confessions as
“Independent” Texas Law Issues, 20 TEX. TECH L.REV. 1017, 1080, 1091 (1989).
47
   Rocha v. State, 16 S.W.3d 1, 20 (Tex.Crim.App.2000).
48
   Bell v. State, 582 S.W.2d 800, 812 (Tex.Crim.App.1979); Casias v. State,
452 S.W.2d 483, 488 (Tex.Crim.App.1970).
49
   Rogers v. State, 549 S.W.2d 726, 729–30 (Tex.Crim.App.1977) (finding
reversible error in trial court's refusal to give jury general instruction on
voluntariness of statement when evidence raised an issue that defendant
lacked the mental capacity to understand and waive his rights before giving
his statement).

                                                                            24
what he was signing and thought it was an accident

report”;50      (5)    the     suspect     was     confronted       by       the

brother-in-law of his murder victim and beaten;51 (6)

the suspect was returned to the store he broke into

“for questioning by several persons armed ‘with six-

shooters.’”52

     C. Jury Submission of Voluntariness Instructions

     Under Texas statutory law, there are three types of

instructions that relate to the taking of confessions:

(1)    a   “general”       Article      38.22,     §   6    voluntariness

instruction;        (2)    a    “general”      Article       38.22,      §    7

warnings instruction (involving warnings given under §
50
   Ritchie v. State, 164 Tex.Crim. 38, 296 S.W.2d 551, 554 (1956). In Ritchie,
the evidence was undisputed that the defendant was intoxicated, but the trial
judge found that he was not so intoxicated that he could not understand what
he was doing. Id. Therefore, the trial judge “instructed the jury not to
consider the [statement] unless they believed beyond a reasonable doubt that,
prior to making the statement, the appellant was duly warned, and that
thereafter he voluntarily and freely made the same and understood and signed
it.” This Court held that the trial court did not err in admitting the
evidence and instructing the jury as he did. Id.; see also Foster v. State,
101 S.W.3d 490, 497 (Tex.App.Houston [1st Dist.] 2002, no pet.) (noting that
“[l]ack of sleep for as long as 16 hours does not, in and of itself, render a
confession involuntary,” and that “a person's illiteracy alone will not
necessarily render his statement inadmissible.”).
51
   Hamlin v. State, 39 Tex.Crim. 579, 47 S.W. 656 (1898). As Professor Dix
points out, in these early decisions, “It was simply beyond question that
private coercion rendered a confession involuntary and that even private
detention invoked the predecessor to article 38.22.” Dix, 20 TEX. TECH L.REV.
at 1083. After 1977, however, the provisions of Article 38.22 (except for
Sections 6 and 7) apply only to custodial interrogations by law enforcement
officials. See 41 DIX & DAWSON, supra note 17, § 13.31 at 33–35.
52
   Warren v. State, 29 Tex. 369 (1867); See also Dix, 20 TEX. TECH L.REV. at
1084.

                                                                              25
2     and    §     3);    and    (3)   a   “specific”       Article     38.23(a)

exclusionary-rule instruction. The Section 6 “general”

instruction asks the jury: “Do you believe, beyond a

reasonable doubt, that the defendant's statement was

voluntarily made? If it was not, do not consider the

defendant's confession.” The Section 7 instruction sets

out the requirements of 38.22, § 2 or § 3 and asks the

jury to decide whether all of those requirements were

met.        The    Article       38.23(a)    “specific”      instruction       is

fact-based:             For     example,    “Do    you   believe      that    the

Officer           who    took    the   statement     held     a   gun    to   the

defendant's head to extract his statement? If so, do

not consider the defendant's confession.”

     In Vasquez v. State,53 confusion exists about which,

if any, jury instruction is appropriate because our

case law “does not always distinguish, and sometimes

blurs,        the       requirements       for    getting    an   instruction




53
     225 S.W.3d 541 (Tex.Crim.App.2007).

                                                                               26
under    article     38.22     and    for    getting       an   instruction

under the exclusionary rule of article 38.23.”54

     In an attempt to clarify the distinction: Due process

and    Miranda     claims     may    warrant      both     “general”      and

“specific” voluntariness instructions; Texas statutory

claims      warrant        only      a      “general”       voluntariness

instruction. It is the defendant's responsibility to

delineate        which     type     of   “involuntariness”           he     is

claiming—a general lack of voluntariness or a specific

police-coerced lack of voluntariness—because the jury

instruction is very different depending upon the type

of claim.55

     Obviously, the evidence must raise a “voluntariness”

issue,     and     the     defendant        should    request       a     jury

instruction         that      relates        to      his        theory      of

involuntariness. But if the defendant never presents a

proposed jury instruction (or fails to object to the




54
  Id. at 544.
55
  Note again, that Appellant Alfaro lodged NO OBJECTION at the time of trial
when his statement of accused was offered.

                                                                            27
lack of one), any potential error in the charge is

reviewed only for “egregious harm” under Almanza.56

     1. Article 38.22, § 6 Instructions
     Article 38.22, § 6 is a very detailed section that is

essentially independent of the other sections contained

within Article 38.22.57 Section 6 provides:

     In all cases where a question is raised as to the

     voluntariness of a statement of an accused, the court

     must make an independent finding in the absence of

     the jury as to whether the statement was made under

     voluntary conditions. If the statement has been found

     to have been voluntarily made and held admissible as

     a matter of law and fact by the court in a hearing in

     the absence of the jury, the court must enter an

     order stating its conclusion as to whether or not the

     statement      was   voluntarily       made,     along     with     the

     specific finding of facts upon which the conclusion

     was   based,    which    order    shall     be   filed    among     the


56
  See Madden v. State, 242 S.W.3d 504, 513 (Tex.Crim.App.2007).
57
  See State v. Terrazas, 4 S.W.3d 720, 727 (Tex.Crim.App.1999) (deciding that
Article 38.22, § 5's provision exempting non-custodial statements from the
coverage of Article 38.22 did not apply to § 6).

                                                                           28
papers     of      the      cause.   Such     order       shall    not     be

exhibited to the jury nor the finding thereof made

known to the jury in any manner. Upon the finding by

the   judge     as     a    matter   of     law   and     fact    that   the

statement was voluntarily made, evidence pertaining

to such matter may be submitted to the jury and it

shall be instructed that unless the jury believes

beyond   a      reasonable        doubt   that     the     statement     was

voluntarily made, the jury shall not consider such

statement for any purpose nor any evidence obtained

as a result thereof. In any case where a motion to

suppress the statement has been filed and evidence

has been submitted to the court on this issue, the

court    within        its      discretion       may     reconsider      such

evidence      in      his      finding    that     the    statement      was

voluntarily made and the same evidence submitted to

the court at the hearing on the motion to suppress

shall be made a part of the record the same as if it

were being presented at the time of trial. However,

the   state      or      the    defendant    shall       be   entitled    to


                                                                           29
     present   any     new    evidence      on    the    issue       of    the

     voluntariness of the statement prior to the court's

     final ruling and order stating its findings.58

     The language “where a question is raised” contrasts

with    the    language      found   in   Article       38.22,   §    7    and

Article 38.23 which speaks of the evidence raising an

issue.59 Because raising a “question” is what triggers

the trial court's duty under Section 6 to conduct a

hearing     outside     the   presence      of   the    jury,    the      only

reasonable reading of this language is that a “question

is raised” when the trial judge is notified by a party

or raises on his own an issue about the voluntariness

of the confession. This is the sequence of events that

seems to be contemplated by Section 6: (1) a party

notifies the trial judge that there is an issue about

the voluntariness of the confession (or the trial judge

raises the issue on his own); (2) the trial judge holds

a hearing outside the presence of the jury; (3) the


58
  TEX.CODE CRIM. PROC. art. 38.22, § 6
59
  See TEX.CODE CRIM. PROC. arts. 38.22, § 7 (“When the issue is raised by the
evidence ...”) and 38.23(a) (“where the legal evidence raises an issue
hereunder ...”).

                                                                            30
trial     judge      decides      whether        the     confession      was

voluntary;60 (4) if the trial judge decides that the

confession was voluntary, it will be admitted, and a

party may offer evidence before the jury suggesting

that the confession was not in fact voluntary; (5) if

such evidence is offered before the jury, the trial

judge shall give the jury a voluntariness instruction.

It is only after the trial judge is notified of the

voluntariness issue (or raises it on his own) that a

chain      of     other       requirements        comes      into       play,

culminating       in    the      defendant's       right     to     a   jury

instruction.

     And Section 6 expressly dictates the content of that

instruction to be as follows: “unless the jury believes

beyond     a    reasonable       doubt    that     the     statement     was

voluntarily       made,    the    jury    shall    not     consider     such

statement for any purpose nor any evidence obtained as

a result thereof.” Because Section 6 contains its own


60
  The trial judge must also make written findings of fact and conclusions of
law in support of his ruling. TEX.CODE CRIM. PROC. art. 38.22, § 6. The need
for written findings should alert the parties and trial judge to the need for
a general voluntariness jury instruction as well.

                                                                            31
jury-instruction provision, it is not governed by the

jury-instruction provision found in Section 7.61                      The

obvious    purpose     of    Section    7   is    to   authorize      and

require jury instructions regarding the warnings and

safeguards for written and oral statements outlined in

Article 38.22, § 2 & § 3 (warnings on the right to

remain silent, right to counsel, etc).

     Consequently, a Section 6 instruction becomes “law

applicable to the case” under Posey v. State62 only if

the parties actually litigate a Section 6 voluntariness

issue before the trial judge. If such litigation occurs

(on the admissibility of evidence for example), a jury

instruction need not be specifically requested to pass

the Posey gateway, although a request would still be

necessary to obtain the most beneficial harm analysis

under Almanza v. State.63




61
   See Terrazas, supra (§ 5 not applicable to § 6, given the specific
provisions found in § 6).
62
    966 S.W.2d 57, 60 (Tex.Crim.App.1998) (a defensive issue is not “law
applicable to the case” unless the defendant timely requests the issue or
objects to its omission from the jury charge).
63
    686 S.W.2d 157, 171 (Tex.Crim.App.1985) (“some harm” versus “egregious
harm”).

                                                                        32
     An interpretation of Section 6 that requires some

sort of litigation before it becomes law applicable to

the case accords not only with the statutory language

but    also    with     common       sense.       The     broad   range     of

voluntariness issues covered by Section 6 could easily

be implicated by evidence that would also be relevant

for other purposes, and Section 6 does not even require

the existence of a factual dispute that might at least

obliquely alert the trial judge to the need for an

instruction.          The       Section       6         requirement       that

voluntariness be litigated in some manner before a jury

instruction becomes necessary ensures that the trial

judge is on notice that the instruction is required.64

     For example, the evidence may be undisputed that the

defendant did not sleep for 24 hours, or has a low

I.Q., or was “high” on drugs at the time he gave his

statement. If a reasonable jury could find that the

facts, disputed or undisputed, rendered him unable to

64
   Vasquez v. State, 225    S.W.3d 541, 545 (Tex.Crim.App.2007) (noting that,
although a defendant may    be entitled to an Article 38.22 jury instruction
even when the evidence      is undisputed, “[s]ome evidence must have been
presented to the jury       that the defendant's confession was not given
voluntarily.”).

                                                                            33
make a voluntary statement, he is entitled to a general

voluntariness instruction when he has raised a question

of the voluntariness of his statement.

     2.     Article       38.22,       §      7    (Statutory      Warnings)

Instructions

     If the defendant made his statement as the result of

custodial interrogation, he is also entitled—when the

issue is raised by the evidence—to have the jury decide

whether       he    was   adequately         warned   of   his   rights    and

knowingly          and    intelligently           waived   these       rights.

Section 7 of Article 38.22 states:

     When the issue is raised by the evidence, the trial

     judge      shall      appropriately           instruct      the     jury,

     generally, on the law pertaining to such statement.65

     The phrase “the issue” refers to compliance with the

statutory          warnings    set    out     in    both   Articles     15.17

(Duties of Arresting Officer and Magistrate) and 38.22,

§§ 2 & 3, and the voluntariness of the defendant's

waiver of the rights. For it to be “raised by the
65
     TEX.CODE CRIM. PROC. art. 38.22, § 7.

                                                                            34
evidence” there must be a genuine factual dispute, just

as     is       true    under       Article     38.23      issues.     The   same

procedures—including a hearing outside the presence of

the jury and the entry of written findings—that apply

to a general voluntariness challenge under Section 6,

also        apply      to     a    challenge     that      is   made    to   the

sufficiency of warnings and voluntary waiver of the

rights communicated by those warnings. As with Section

6, the trial judge's Section 7 jury instructions are

“general” ones that set out the pertinent law and legal

requirements of Sections 2 and 3 (or, in an appropriate

case, those of Article 15.17).66

     But suppose there is some evidence that the police

held        a    gun     to        the   head    of     the     defendant—who,

unbeknownst to the police, had not slept for twenty-

four hours—to extract the confession. In that case, the

defendant         may       also    be   entitled     to    a   fact-specific,

exclusionary-rule instruction, in addition to the two

general voluntariness instructions.

66
  See, e.g., Mendoza v. State, 88 S.W.3d at 238 n. 1 (Tex.Crim.App.2002)
(quoting a portion of an Article 38.22, § 7 jury instruction).

                                                                               35
     3. Article 38.23 (Exclusionary Rule) Instructions

Article 38.23(a) states that

(a) No evidence obtained by an officer or other person

in violation of any provisions of the Constitution or

laws of the State of Texas, or of the Constitution or

laws of the United States of America, shall be admitted

in evidence against the accused on the trial of any

criminal case.

        In any case         where the legal evidence raises an

issue hereunder, the jury shall be instructed that if

it      believes,      or    has    a   reasonable       doubt,      that    the

evidence was obtained in violation of the provisions of

this Article, then and in such event, the jury shall

disregard any such evidence so obtained.67

        The     wording     is     absolute      (“the     jury      shall    be

instructed”), just as it is in Article 38.22, but the

triggering mechanism is more complex.68 As we recently

held       in   Madden      v.   State,69     the   second      sentence      of


67
     TEX.CODE CRIM. PROC. art. 38.23.
68
     See Murphy v. State, 640 S.W.2d 297, 299 (Tex.Crim.App.1982).
69
     242 S.W.3d 504 (Tex.Crim.App.2007).

                                                                              36
Article 38.23 requires a jury instruction only if there

is   a    genuine      dispute     about      a   material      fact.70     A

defendant must establish three foundation requirements

to   trigger      an    Article     38.23     instruction:        (1)     the

evidence heard by the jury must raise an issue of fact;

(2) the evidence on that fact must be affirmatively

contested; and (3) the contested factual issue must be

material to the lawfulness of the challenged conduct in

obtaining the statement claimed to be involuntary.71 The

defendant must offer evidence that, if credited, would

create    a    reasonable       doubt   as   to   a   specific      factual

matter        essential      to     the      voluntariness        of      the

statement.72      This factual dispute can be raised only by

affirmative       evidence,       not   by   mere     cross-examination

questions or argument.73

     For example, the officer in our hypothetical may

deny, on cross-examination, that he held a gun to the

defendant's       head     to     extract      the    confession.         The
70
   Id. at 510; See also Holmes v. State, 248 S.W.3d 194, 199
(Tex.Crim.App.2008); Pierce v. State, 32 S.W.3d 247, 251 (Tex.Crim.App.2000).
71
   242 S.W.3d at 510.
72
   Id. See also 40 GEORGE E. DIX & ROBERT O. DAWSON, TEXAS PRACTICE: CRIMINAL
PRACTICE AND PROCEDURE, § 4.194, at 282 (2d. ed.2001).
73
   Madden, 242 S.W.3d at 513 nn. 22–23.

                                                                            37
implication by counsel, that the officer did perform

that act, does not, by itself, raise a disputed fact

issue. But if the defendant (or some other witness)

testifies that the officer held a gun to his head, then

a disputed fact issue exists. And the jury must resolve

that disputed fact issue.

       If the jury finds that the officer did hold a gun

to the defendant's head, the statement is involuntary

as a matter of federal constitutional law. If the jury

finds the officer did not do so, the statement is not

constitutionally involuntary. Of course, if there is no

disputed factual issue—if there is a video definitively

showing that the officer did or did not hold a gun to

the defendant's head—the legality of the conduct is

determined by the trial judge alone, as a question of

law. The legal question would never go to the jury.

       Normally, “specific” exclusionary-rule instructions

concerning the making of a confession are warranted

only     where   an   officer   uses   inherently   coercive



                                                          38
practices like those set out in Connelly.74 In Texas, if

there is a disputed fact issue about whether this type

of coercive practice was employed—by either an officer

or a private citizen75—to wring a confession out of a

suspect against his will, a specific exclusionary-rule

instruction under Article 38.23 is appropriate.

     4. Error in the Failure                    to     Give   Appropriate
     Voluntariness Instructions
     The question then becomes: When does a trial judge

err in failing to give an Article 38.22 or 38.23 jury

instruction?       Today’s      cases     might      appear      to   be    in

conflict on whether there can be any error whatsoever—

at least in the Article 38.23 context—absent a proper

request     by   the   defendant.       In   Mendoza,      the    Court     of

Criminal Appeals stated, “Generally, when evidence from

any source raises a defensive issue and the defendant

properly     requests      a   jury   charge      on   that   issue,       the


74
   Connelly, 479 U.S. at 164 & n. 1, 107 S.Ct. 515; see also State v.
Terrazas, 4 S.W.3d 720, 727 (Tex.Crim.App.1999) (citing Note: Evidence–
Criminal Law–Constitutional Law–Due Process–Confessions–Judge and Jury–
Determination of Preliminary Fact of Voluntariness of Confession, 3 BAYLOR
L.REV. 561, 563–65 (1951) (inherently coercive practices include: subjection
to persistent and protracted questioning, threats of mob violence, unlawful
detention incommunicado without advice of counsel or friends, and taking at
night to lonely and isolated places for questioning)).
75
   See Miles v. State, 241 S.W.3d 28, 39 (Tex.Crim.App.2007).

                                                                               39
trial court must submit the issue to the jury.”76 But

that general statement does not imply the converse—that

the trial court need never submit a jury instruction on

a      particular        defensive       issue        unless       the     defendant

properly         requests        one.    There        is     nothing       in        that

sentence or in the rest of the Mendoza opinion that

states or holds that the trial judge shall instruct the

jury to disregard illegally obtained evidence only if

the defendant requests a jury charge on that issue.

        Under Posey v. State,77 a trial court has no duty to

instruct the jury on unrequested defensive issues-such

as mistake of fact.78 A defensive issue is not “law

applicable          to   the     case”   for     purposes          of    Article       36

unless        the     defendant     timely       requests          the     issue       or

objects        to   the     omission      of    the        issue    in     the       jury

charge. Any other holding would render Article 36.14—

which also requires a party to make specific objections

to      the    charge—meaningless,              and    “might           encourage       a

defendant        to      retry    the    case    on    appeal       under        a    new
76
     Mendoza v. State, 88 S.W.3d 236, 239 (Tex.Crim.App.2002).
77
     966 S.W.2d 57 (Tex.Crim.App.1998).
78
     Id. at 60.

                                                                                       40
defensive theory effectively giving him two bites at

the apple.”79

      The principle in Posey is that no rule or statute

requires      the    trial     judge      to   give     instructions       on

traditional defenses and defensive theories absent a

defendant's request. As stated in Delgado: “The trial

judge has an absolute sua sponte duty to prepare a jury

charge that accurately sets out the law applicable to

the    specific       offense      charged.       But     it    does     not

inevitably follow that he has a similar sua sponte duty

to instruct the jury on all potential defensive issues,

lesser-included offenses, or evidentiary issues. These

are issues that frequently depend upon trial strategy

and    tactics.”80       These      are    also       issues    on     which

instructions are not mandated by any statute.81 Thus,


79
   966 S.W.2d at 62–63.
80
   Delgado v. State, 235 S.W.3d 244, 249 (Tex.Crim.App.2007) (footnote
omitted).
81
   For example, TEX.R. EVID. 105(a) explicitly recognizes that the advocates
bear full responsibility for requesting appropriate limiting instructions
when they are entitled to them. The rule states:
(a) Limiting Instruction.—When evidence which is admissible as to one party
or for one purpose but not admissible as to another party or for another
purpose is admitted, the court, upon request, shall restrict the evidence to
its proper scope and instruct the jury accordingly; but, in the absence of
such request the court's action in admitting such evidence without limitation
shall not be a ground for complaint on appeal.

                                                                            41
under Posey, it is only when a “requirement of the

various       statutory     provisions       referenced       in    Article

36.19 ‘has been disregarded,’” that the trial court

errs     in     omitting      instructions         relative        to   that

statute.82

       But where a rule or statute requires an instruction

under the particular circumstances, that instruction is

“the law applicable to the case.” Such statutes and

rules set out an implicit “If-then” proposition: If the

evidence raises an issue of voluntariness, accomplice

witness, confidential informant, etc., then the trial

court shall instruct the jury that whatever the statute

or rule requires. In Huizar v. State,83 for example, it

was held that Article 37.07 is “the law applicable” to

all non-capital punishment proceedings. Thus, the trial

judge must instruct the jury at the punishment phase

concerning that law, including the fact that the State


TEX.R. EVID. 105(a) (emphasis added). Trial judges should be wary of giving a
limiting instruction under Rule 105(a) without a request because a party
might well intentionally forego a limiting instruction as part of its
deliberate strategy “to minimize the jury's recollection of the unfavorable
evidence.” United States v. Johnson, 46 F.3d 1166, 1171 (D.C.Cir.1995).
82
   Posey, 966 S.W.2d at 60 & n. 5
83
   12 S.W.3d 479 (Tex.Crim.App.2000).

                                                                            42
must prove any extraneous offenses beyond a reasonable

doubt.84           Posey     was   distinguished       there     as    it     was

explained the difference between instructing the jury

on “defensive” issues and instructing them on the law

that is applicable to all cases.

        Articles         38.21–38.23       are   legislatively        mandated

procedures governing the admission and consideration of

a      defendant's          statements.      Article     38.21      explicitly

states        that       voluntary     statements        may   be     used     in

evidence           “under    the   rules     hereafter    prescribed”—that

is, Article 38.22 and Article 38.23.

        Article 38.22, § 6 is “the law applicable” to any

case in which a “question” is raised and litigated as

to the “general” voluntariness of a statement of an

accused. As noted above, under that statute, the trial

judge must then (1) make an independent determination

that the statement was made under voluntary conditions;

and then (2) instruct the jurors that they shall not

consider           the     statement   for    any   purpose      unless      they


84
     Id. at 484.

                                                                               43
believe, beyond a reasonable doubt, that the statement

was made voluntarily.

        Article 38.23 is “the law applicable” to any case

in which a specific, disputed issue of fact is raised

concerning          the       constitutional     voluntariness       of    the

making        of        the     defendant's     statement.      These      are

statutorily mandated instructions and the trial judge

must include them in the jury instructions when the

voluntariness of a defendant's statement is at issue.

        Law Applied to the facts in the instant case

        In the instant case, there was evidence that in

fact Appellant Alfaro gave a statement of accused.85

Note      that     State’s       witness,     Investigator     Ruben      Silva

testified that after making initial contact with the

defendant,          his       first     impression      was   that   he    was

uncooperative.86 This witness would go on to testify

that he also believed Appellant Alfaro was under the

influence          of    some    kind    of   alcohol    or   drug   at   that


85
     RR14@ State’s Exhibit 36
86
     RR11@11

                                                                             44
time.87 Even so, it seemed to Investigator Silva that

Appellant Alfaro understood what he was saying to him.88

“He    appeared       to   have    full    use    of    his    mental     and

physical faculties.”89

      Investigator Silva advised Appellant Alfaro of his

rights     and   he    understood       them     as    indicated     by   his

initials     and    his    signature.90      However     much     Appellant

Alfaro was uncooperative, he persisted that he didn’t

know anything91 yet he never exercised his right to an

attorney or to remain silent; he simply continued to

say he knew nothing.92            Investigator Silva clarified on

cross examination and on re-direct examination that the

only signs of intoxication he saw were that Appellant

Alfaro smelled of alcohol and he was uncooperative.93

When pushed for clarity by the Court,94 Investigator

87
   RR11@12
88
    They spoke in English and Spanish and Silva testified it was his
impression Appellant Alfaro understood him in both languages. RR11@13-14;
When asked which language Appellant Alfaro preferred to be Mirandized in and
Appellant chose Spanish. RR11@14; See also Miranda Warnings (in Spanish)
RR11@15, 17-18
89
   RR11@12-13
90
   RR11@15-16, 17-18
91
   RR11@17
92
   RR11@17
93
   RR11@27
94
   Note that the Court’s examination of the witness drew no objection from the
defense.

                                                                            45
Silva admitted the only “sign” of intoxication was that

defendant smelled of alcohol.95                      Silva would further

testify that Defendant did not have slurred speech;96

Appellant           Alfaro     had     no     problems      maintain       his

composure; he had no problems maintaining his balance;

he was not “falling over;” he knew where he was, who

Silva was and who he was; he was lucid and in his right

mind; he had no problems holding and using the pen.97

       Next,     the      testimony     at    the    suppression     hearing

shows that Investigator Adam Palmer arrived at 6 am;98

when he made contact with Appellant Alfaro, he did not

appear      to       be      intoxicated       although      he’d    learned

Appellant Alfaro was slightly intoxicated a few hours

earlier.       Approximately three hours had passed from the

time    Alfaro       was     Mirandized       and    the   time   that     this

witness made contact.               Palmer testified: to him, Alfaro

appeared       to    have     the    normal    use    of   his    mental   and



95
   RR11@27
96
   RR11@28
97
   RR11@29
98
    The testimony shows that Palmer got to the station at 4 am but I didn’t
not start talking to Appellant Alfaro until 6 am. When he did see him and
talk to him, he appeared to be in a normal mental state. RR11@39

                                                                              46
physical            faculties;99         Appellant      Alfaro      understood

English;           he    is   a   high    school     graduate;100    Appellant

Alfaro spoke plainly in English; Appellant Alfaro never

requested an attorney nor did he ever request that the

interview be terminated.

         Then Investigator Avila testified that he took the

statement of accused from Appellant Alfaro.101                        When he

made contact, Appellant Alfaro appeared to have the

normal use of his mental and physical faculties; he

understood              the   English      language;         they   spoke   in

English.102             According to Avila, Appellant Alfaro never

requested           an    attorney;       He   did     not    ask   that    the

interview be terminated; Avila did not coerce Appellant

Alfaro or threaten him; He did not promise Appellant

Alfaro anything in exchange for his statement; He did

not deny Appellant Alfaro any basic necessities.103




99
    RR11@38
100
     RR11@38
101
     Made contact around 6 am; RR11@42
102
      RR11@44
103
      RR11@44-45

                                                                             47
         According          to   Avila,        Appellant       Alfaro’s       2-page

statement of accused was prepared voluntarily on August

2,      2014.          It    was   created       and     prepared        at    6am;104

Appellant         Alfaro         talked    while    Avila        typed    as       he’s

talking; Appellant Alfaro had an opportunity to review

and correct any mistakes; it is then printed out.105

         The    rights       contained         within    the     statement         were

reviewed with Appellant Alfaro and he acknowledged he

understood them as indicated by his initials next to

each of the rights.106                According to Avila, after that,

Defendant         Alfaro         freely    and    voluntarily       waived          his

rights and gave the statement of accused.107

         Although       the      Defense        argued     the    Statement          of

Accused was not given freely and voluntarily because

Appellant Alfaro was intoxicated108 at least while being

Mirandized         –    referring         to    State’s    Exhibit        1    –    the

104
      this exhibit also contains the Miranda warnings (same as on State’s Exhibit
1)
105
    RR11@47; This exhibit also has the Miranda Warnings listed on the exhibit
itself.
106
    RR11@48-49
107
    RR11@49; Avila testified that he did not have the impression Appellant
Alfaro was under the influence of any drug, alcohol or medication; It took
about 3 ½ hours to take the statement. RR11@54-55
108
    He was not in the right state of mind to intelligently and freely waive his
rights

                                                                                     48
defense did not put on any evidence to that effect.

The defendant must offer credible109 evidence that would

create    a    reasonable       doubt    as   to     a    specific    factual

matter        essential      to     the       voluntariness           of    the

statement.110 This factual dispute can be raised only by

affirmative         evidence,     not    by   mere        cross-examination

questions or argument.111

      Defense counsel waived any possible error by not

objecting      to    the   admissibility        of       the    statement   of

accused at the time of trial.                  State’s Exhibit 18 was

offered and admitted without objection.112 Exhibit 36

offered and admitted without objection.113

      Given the evidence adduced                by the State           at the

suppression hearing and further considering the defense

produced       no    affirmative        evidence         to    the   contrary,

Appellant       Alfaro     was     appropriately              Mirandized;   he
109
    Noting of course that the trial court is the sole judge of the credibility
of the witnesses at the suppression hearing. Note further that Appellant did
not testify to his own intoxication; nor did Appellant Alfaro contradict the
testimony of the investigators that he had the normal use of his mental and
physical faculties at the time he was Mirandized and when he gave the
Statement of Accused.
110
    See 40 GEORGE E. DIX & ROBERT O. DAWSON, TEXAS PRACTICE: CRIMINAL PRACTICE
AND PROCEDURE, § 4.194, at 282 (2d. ed.2001).
111
    Madden, 242 S.W.3d at 513 nn. 22–23.
112
    RR13@37; RR13@42
113
    RR13@88

                                                                             49
appeared    to    have    understood      his   rights     sufficiently

enough to voluntarily waive them.                The evidence shows

that the Statement of Accused was given voluntarily.

Further,    the     evidence       adduced      at   the    suppression

hearing    was     devoid     of    any     “police     overreaching.”

Accordingly, undersigned counsel believes there is no

meritorious       issue    for     appeal     with    respect    to     the

Court’s ruling on Appellant Alfaro’s Motion to suppress

the statement of accused.              The undersigned does not

believe    the    record    on     appeal    supports      an   abuse    of

discretion on the part of the trial court.

Possible Issue 2: After review of the Record on appeal
and after reviewing the current state of the law, the
undersigned finds there was no error in not including a
voluntariness charge on admission of Appellant Alfaro's
statement.

       A. Standard of Review - Almanza
       Because Appellant Alfaro not properly object to the

jury charge Alfaro could only obtain reversal if any

jury     charge     errors,        assuming      they      exist,     were




                                                                         50
egregious.114        Under       Almanza,         courts      evaluate             harm    by

taking into account (1) the entire jury charge; (2) the

state of the evidence, including contested issues; (3)

arguments       of    counsel;          and       (4)    any    other          relevant

information contained in the record as a whole.115

      B)    Voluntariness              of     Appellant's           Statement              of

Accused

      Typically,           a     Court        should          submit           a     38.23

instruction          to    the     jury       when      voluntariness                of    a

confession is raised by the evidence. However, even if

Appellant       Alfaro         could   show       in    the    record          that       the

issue      of   voluntariness           was       raised:      (1)       because           of

Appellant       Alfaro's         intoxication           at    the    time          he     was

Mirandized, (2) because Appellant Alfaro’s intoxication

sufficiently         compromised            his     ability         to    knowingly,

intelligently             and     voluntarily            waive           the        rights

contained within the Miranda Warnings, he waived any

right to that instruction when he lodged “no objection”

114
    (Conceding defense counsel did not object to the jury charge); see also
Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1985) (describing
“egregious harm”).
115
    See Almanza, 686 S.W.2d at 171.

                                                                                           51
at    the    time    the      Miranda   Form     and    the   Statement         of

Accused      were    admitted      at     trial.116     Appellant        neither

requested a voluntariness instruction nor objected to

its exclusion.117

       The first Almanza factor requires this Court to

consider the entirety of the jury charge.118 In this

case, the charge instructed the jury that Appellant was

charged      with    Aggravated         Robbery       and   that    Appellant

Alfaro voluntarily entered a plea of guilty, persisted

in his plea of guilty and further that it appeared to

the Court that Appellant Alfaro was competent to enter

such     a    plea       of     guilty.       Accordingly,         the     Court

instructed the jury to find Appellant Alfaro guilty of

Aggravated Robbery and assess his punishment.”119 The

charge also contained general language, informing the

jury    of    the        conditions      of    probation      and        general

principles of law.              Assuming the charge was erroneous

by    omission      of     an   Article       38.23    instruction,        as    a

116
    State’s Exhibit 18 was offered and admitted without objection.        RR13@37;
RR13@42; Exhibit 36 offered and admitted without objection. RR13@88
117
    Insert reference to jury charge conference
118
    CR86
119
    CR86

                                                                                52
whole, the jury charge did not further compound any

harm suffered.120

      The second Almanza factor requires this Court to

consider the state of the evidence. In this case, there

was   no   testimony       which      created    a   fact    issue    as    to

whether      Appellant          Alfaro     was       coerced     by        the

investigators       into       signing    his     written      confession.

Appellant Alfaro did not testify in order to negate his

guilt for the offense.                In fact, Appellant entered a

plea of guilty.121 No harm can be shown on this basis.

Despite     the    lack    of    the    Article      38.23   instruction,

Appellant Alfaro's the resultant finding of guilty was

resolved        consistently           with      Appellant        Alfaro’s

acceptance of responsibility when he entered a plea of

guilty.122 Implicit in any Almanza challenge here is a

contention        that    if    the     jury     determined      Appellant

Alfaro’s     statement      was    involuntary,        the   State    would


120
    Again, noting that Defense counsel did not object to the admission of the
statement at trial and further recognizing the implied strategy of “throwing
defendant Alfaro on the mercy of the jury,” the undersigned does not presume
to allege ineffectiveness; rather counsel goes through this exercise in order
to explore any meritorious issues for appeal.
121
    RR13@6
122
    RR13@6

                                                                            53
have       not    been       able   to    carry       its   burden    of   showing

Appellant Alfaro’s guilt.                      The evidence was legally

sufficient for the jury to reasonably conclude that

Appellant was guilty of aggravated robbery. Considering

the circumstantial and direct evidence, the jury could

also       have        reasonably        found    Appellant          guilty   even

without          the    statement.        Thus,       Appellant's       own   plea

contributed            to    the    finding      of    guilt    for    aggravated

robbery. In order to have acquitted Appellant, the jury

would have had to discredit all testimony, including

Appellant Alfaro’s plea of guilty. Under the particular

facts of this case, any showing of harm would amount to

theoretical, rather than action harm.

         The third Almanza factor requires this Court to

consider         the        arguments     of   counsel.        Defense     counsel

addressed the voluntariness of Appellant's statement of

accused at the pretrial suppression hearing only. There

was no objection to either the admission of Appellant’s

Miranda form or the statement of accused.123                               Instead,


123
      RR15 @ State’s Exhibits 18 and 36

                                                                                 54
much    of     the    focus    of       the    defensive    theory      during

closing argument was that Appellant Alfaro was guilty

and was sorry for his actions.

       The fourth Almanza factor requires this Court to

consider other relevant information contained in the

record. It bears repeating that Appellant affirmatively

confirmed to the trial court that he had no objections

to the jury charge.124 After reviewing the entire record

under the appropriate Almanza harm analysis standard,

it is apparent that egregious harm has not occurred in

this     case.       As     such,       the      undersigned      finds      no

meritorious issue on appeal here.

       Possible issue number three, whether appellant’s
       finding of guilt was supported by the evidence.
       Appellant      entered       a    plea     of   guilty.    The     jury

sentenced       appellant      to       imprisonment       for   fifty    (50)

years    for    the       offense   of        aggravated    robbery.125    The

record reflects appellant pleaded guilty to the jury.126



124
    RR14@120
125
    CR93; 97; RR13@6
126
    Defendant is arraigned in front of the jury. RR13@5; Appellant Alfaro
PLEADS “guilty” to the jury. RR13@6; Court admonishes and inquires several

                                                                             55
       This plea of        guilty to       the jury made          Appellant

Alfaro’s trial a unitary proceeding.127 The trial court,

accordingly instructed the jury to find the defendant

guilty     and    assess        punishment.128      Gonzales      v.    State

states, “the court should instruct the jury to find the

defendant guilty as part of the punishment charge.”129

In Basaldua v. State, the court noted that, though it

was argued that the charge did not require the jury

find    the    defendant        guilty,    the   trial      court      used     a

standard      form   that    instructed       the    jury    to   find       the

defendant      guilty     and    assess    his    punishment.130        It    is

well established that when a defendant has entered a

guilty plea to a felony before the jury, there remains

no issue of guilt for the factfinder to determine.131 A

plea of guilty substitutes for a jury verdict of guilt

and is itself a conviction.132 Like a jury's verdict, a


times whether he understands what he’s doing – to which the Appellant Alfaro
advises – Yes. RR13@6-7
127
    State v. Aguilera, 165 S.W.3d 695, 698 n. 6 (Tex.Crim.App.2005).
128
    CR86
129
    868 S.W.2d 854, 857 (Tex.App.-Dallas 1993, no pet.) (emphasis added).
130
    481 S.W.2d 851, 855 (Tex.Crim.App.1972); CR86
131
    Holland v. State, 761 S.W.2d 307, 313 (Tex.Crim.App.1988). See also In re
State ex rel. Tharp, 393 S.W.3d 751, 757 (Tex.Crim.App.2012) (a plea of
guilty to a jury eliminates guilt as an issue to be determined).
132
    Fuller v. State, 253 S.W.3d 220, 227 (Tex.Crim.App.2008).

                                                                                56
plea         of   guilty    is   conclusive   and    nothing   more   is

required but to give judgment and sentence.133 “When a

defendant pleads guilty to a jury, the jury need not

return any verdict of guilty. The case simply proceeds

with a unitary punishment hearing.”134

            Accordingly, the undersigned finds no meritorious

appeal as it relates to sufficiency of the evidence to

support the conviction.

                                 Prayer for Relief

            Wherefore,     premises   considered,    Appellant   prays

this Court grant the undersigned’s motion to withdraw

as counsel.          No oral argument is requested or needed.

                                         Respectfully submitted

                                         O. Rene Flores, PC
                                         State Bar No. 24012637
                                         1308 S. 10th Ave.
                                         Edinburg, TX 78539
                                         (956)383-9090
                                         (956)383-9050 (fax)

                                         /S/ O. Rene Flores
                                         O. Rene Flores


133
      Id
134
      Id.

                                                                      57
                  CERTIFICATE OF SERVICE

      I hereby certify that a true and accurate copy of

the   foregoing   Anders   Briefing   Brief   was   served   in

accordance with the rules on the following persons:

      Theodore “Ted” Hake
      Assistant District Attorney
      Hidalgo County District County Attorney
      Appellate Division
      Hidalgo County Courthouse
      100 N. Closner
      Edinburg, Texas 78539
      By: Hand delivery

      Appellant Juan Manuel Alfaro
      TDCJ Number 01988848
      Texas Department of Corrections
      Connally Unit
      899 FM 632
      Kenedy, TX 78119

                                 /S/ O. Rene Flores
                                 O. Rene Flores


                   CERTIFICATE OF COMPLIANCE

      Pursuant to TRAP 9.4 (3), I hereby certify this

Brief contains 10,289 words.


                            /S/ O. Rene Flores
                            O. Rene Flores




                                                             58
