                                                                                     PD-0646-15
                                                                    COURT OF CRIMINAL APPEALS
                                                                                    AUSTIN, TEXAS
                                                                    Transmitted 7/8/2015 7:46:48 PM
                                                                      Accepted 7/9/2015 4:37:55 PM
                                                                                     ABEL ACOSTA
                                   PD-0646-15                                                CLERK

                             IN THE
               COURT OF CRIMINAL APPEALS OF TEXAS


                          EMMANUEL ARMENDARIZ,
                                Appellant

                                       v.

                             THE STATE OF TEXAS,
                                   Appellee


                                 On Appeal from

                      Court of Appeal Number 08-13-00125-CR


                PETITION FOR DISCRETIONARY REVIEW



Veronica Teresa Lerma                       Eduardo N. Lerma, Sr.
SBOT No. 24062846                           SBOT No. 12221300
vtlerma@gmail.com                           enl1417@aol.com

1417 Montana Avenue                         Law Offices of Eduardo N. Lerma, Sr.
El Paso, Texas 79902                        1417 Montana Avenue
Tel.: 915.533.4779                          El Paso, Texas 79902
Fax: 915.533.7236                           T: 915.533.0177
                                            F: 915.533.7236


                  Attorneys for Appellant Emmanuel Armendariz




       July 9, 2015
                     IDENTITY OF PARTIES AND COUNSEL

  EMMANUEL ARMENDARIZ                    Appellant

     Eduardo N. Lerma, Sr.               Appellant’s Attorney at Trial and on Appeal
     1417 Montana Avenue
     El Paso, Texas 79902

     Veronica Teresa Lerma             Appellant’s Attorney on Appeal
     1417 Montana Avenue
     El Paso, Texas 79902

  STATE OF TEXAS                        Appellee

     Jaime Esparza                      Attorney for Appellee at Trial and on Appeal
     District Attorney
     34th Judicial District
     SBOT No. 06666450

     Penny J. Hamilton                  Attorney for Appellee at Trial
     SBOT No. 00793887
     Assistant District Attorney

     Lisa Lynn Clausen                  Attorney at Appellee Trial
     SBOT No. 24027931
     Assistant District Attorney
     500 E. San Antonio, 2nd Floor
     El Paso, Texas 79901
     Tel. 915.546.2059
     Fax. 915.533.5520

  The Hon. Sam Medrano                        Trial Court
       409th Judicial District Court

APPELLATE COURT
    The Hon. A. McClure, C.J.,                Presiding Justices
    Rodriguez and Hughes, JJ.
    Eighth Court of Criminal Appeals
    500 E. San Antonio Street
    El Paso, Texas 79902

                                          2
                                           TABLE OF CONTENTS



Identity of Parties and Counsel..................................................................................2
Table of Contents ......................................................................................................3
Index of Authorities ...................................................................................................4
Statement of the Case ................................................................................................5
Question Presented for Review .................................................................................6
                   The appellate court erred when it failed to apply the standard of
                   review required for suppression issues in considering a totality
                   of the circumstances analysis on whether Armendariz
                   effectively waived his rights prior to providing a recorded
                   statement.
Statement of Jurisdiction ...........................................................................................7
Statement of Fact and Procedural History .................................................................8
Grounds for Review ................................................................................................12
Summary of The Argument .....................................................................................13
Standard Of Review ................................................................................................14
Arguments And Authorities ....................................................................................16
              I.  The appellate court erred when it failed to apply the standard of
              review required for suppression issues in considering a totality of the
              circumstances analysis on whether Armendariz effectively waived his
              rights prior to providing a recorded statement.

Prayer .......................................................................................................................21
Certificate of Service ...............................................................................................22
Certificate of Compliance........................................................................................23

Appendix .................................................................................................................24




                                                               3
                                     INDEX OF AUTHORITIES

FEDERAL CASES
Fare v. Michael C., 442 U.S. 707 (1979) ................................................................ 18, 20
Johnson v. Zerbst, 304 U.S. 458 (1938) ........................................................................ 20
Miranda v. Arizona, 384 U.S. 436 (1966) ......................................................... 17, 18, 20
North Carolina v. Butler, 441 U.S. 369 (1979) ........................................................... ..20



STATE CASES
Amador v. State, 221 S.W.3d 666 (Tex. Crim. App. 2007) ....................................15
Armendariz v. State, No. 08-13-00125-CR, 2015 WL 2174481,
     at *1 (Tex. App. – El Paso, May 8, 2015) ............................................... passim
Gately v. State, 321 S.W.3d 72 (Tex. App. Eastland 2010) ....................................20
Guzman v. State, 955 S.W.2d 85 (Tex. Crim. App. 1997) ......................................15
Hill v. State, 429 S.W.2d 481 (Tex. Crim. App. 1968) ...........................................17
Joseph v. State, 309 S.W.3d 20 (Tex. Crim. App. 2010) ........................................18
Romero v. State, 800 S.W.2d 539 (Tex. Crim. App. 1990). ....................................15
State v. Elias, 08-08-00085-CR (Tex. App – El Paso 2012) .................................5, 6
State v. Elias, 339 S.W.3d 667 (Tex. Crim. App. 2011) .........................5, 13, 15, 18
State v. Kelly, 204 S.W.3d 808 (Tex. Crim. App. 2006) .........................................16
Watson v. State, 762 S.W.2d 591 (Tex. Crim. App. 1988) .....................................19
Wiede v. State, 214 S.W.3d 17 (Tex. Crim. App. 2007) .........................................15



RULES
Tex. R. App. Proc. 66.3 ...........................................................................................13




                                                         4
                        STATEMENT OF THE CASE1

      Appellant Emmanuel Armendariz pled guilty to a two-count indictment

charging him with injury to a child and manslaughter.2   The trial court sentenced

Armendariz to three years confinement for each count, to run concurrent.3

      On appeal, the Eighth Court of Appeals affirmed the trial court’s ruling on

Armendariz’s motion to suppress his recorded statement.4    The appellate court

issued an unpublished opinion in Armendariz v. State, No. 08-13-00125-CR, 2015

WL 2174481, at *1 (Tex. App. – El Paso, May 8, 2015). Armendariz appeals to the

Texas Court of Criminal Appeals by this Petition for Discretionary Review.




1 References to the record are cited as follows:
   Original Clerk’s Record, is cited as “CR” with the pinpoint page number (CR
           page number);
   Reporter’s Record (single-volume) is cited as “RR” with the pinpoint page
           number (RR page number), excerpts of cited portions of Reporter’s
           Record attached as Exhibit C in the Appendix.
2 Armendariz v. State, No. 08-13-00125-CR, 2015 WL 2174481, at *1 (Tex. App.
– El Paso, May 8, 2015).
3 Id.
4 Id.

                                         5
         QUESTION PRESENTED FOR REVIEW

The appellate court erred when it failed to apply the standard of review
required for suppression issues in considering a totality of the
circumstances analysis on whether Armendariz effectively waived his
rights prior to providing a recorded statement.




                                6
                         STATEMENT OF JURISDICTION

      The Court of Criminal Appeals of Texas has jurisdiction over this appeal

pursuant to Rule 68 of the Texas Rules of Appellate Procedure.




                                           7
          STATEMENT OF FACT AND PROCEDURAL HISTORY

Nature of the Case.

Statement of Procedure

      Appellant Emmanuel Armendariz pled guilty to a two-count indictment

charging him with injury to a child and manslaughter.5    The trial court sentenced

Armendariz to three years confinement for each count, to run concurrent.6

      On appeal, the Eighth Court of Appeals affirmed the trial court’s ruling on

Armendariz’s motion to suppress his recorded statement.7     The appellate court

issued an unpublished opinion in Armendariz v. State, No. 08-13-00125-CR, 2015

WL 2174481, at *1 (Tex. App. – El Paso, May 8, 2015).      Armendariz appeals to

the Texas Court of Criminal Appeals by this Petition for Discretionary Review.

      Statement of Facts.

      Armendariz picked up his two-year-old son from his mother-in-law before

noon on August 27, 2010.8     After arriving home, Appellant forgot his son was in

the truck and left him there while he prepared for an upcoming trip and ran some

errands with his father-in-law.9   Several hours later, Armendariz discovered his



5 Armendariz v. State, No. 08-13-00125-CR, 2015 WL 2174481, at *1 (Tex. App.
– El Paso, May 8, 2015).
6 Id.
7 Id.
8 Id.
9 Armendariz v. State, No. 08-13-00125-CR, 2015 WL 2174481, at *1, 2 (Tex.

                                          8
son was still in the truck.10   The child died.11 That evening around 9 p.m., the

police obtained a video-recorded statement.12

       The trial court held a suppression hearing to determine, among other things,

whether Armendariz’s recorded statement should be suppressed.13 Following the

hearing, the trial court entered findings of fact and conclusions of law, including a

finding that when the police detective met with Armendariz to take his recorded

statement, “at the time the defendant was not under arrest.”14   The trial court

entered a related conclusion of law stating: “The Court finds that [Armendariz]

was not under arrest when he provided the recorded statement to Detective

Varela.”15

       At the suppression hearing, Socorro Police Department Detective Javier

Varela testified he recorded the interrogation and testified that during interrogation

Armendariz was under arrest.16      Detective Varela was the only State’s witness

who testified to having any participation with the interrogation, the other

witnesses, Detective Rafael Chavez III and Detective Santibanez, of the El Paso


App. – El Paso, May 8, 2015).
10 Id.
11 Id.
12 Id.
13 Id.
14 Id.
15 Id.
16 2 RR 39:16-21.

                                           9
Sherriff’s Department, did not testify to any participation in the interrogation.

      Detective Varela testified he approached Armendariz to “mirandize him and

then take a statement from him” at the police substation17 “at 9:10 p.m. of that

same day”18 (referencing August 27, 2010).      Shortly after the interrogation, the

El Paso Sherriff’s department took charge of the case.19

      Facts and Conclusions of Law Before the Trial Court.

      The trial court made the following pertinent findings of fact and conclusion

of law (in pertinent part):

      5.     The affidavit in support of probable cause to issue the warrant
             for the defendant’s home was based on information provided to
             Detective Chavez on August 27, 2010[,] from an investigation
             conducted by Socorro Police Department and The El Paso
             Sherriff’s Department in which the defendant provided a
             statement that he has left the deceased child in the vehicle after
             picking him up at his mother-in-laws house. The defendant
             stated that he was at Speaking Rock and then went to his
             mother-in-law's house. The defendant then went home and
             says he forgot the deceased child was in the vehicle. The
             father found the deceased child inside the vehicle at
             approximately 1800 hours. Evidence in plain view of the
             vehicle indicates the deceased child attempted to open the rear
             left door and window of the vehicle. [sic]

      ...

      10.    Detective Varela met with defendant Emmanuel Armendariz
             and at the time the defendant was not under arrest.

17 2 RR 32:1-9.
18 2 RR 36:23-25.
19 2 RR 37:8-10.

                                          10
     11.   Detective Varela was in a room containing audio and video
           equipment. Emanuel Armendariz provided a statement to
           Detective Varela that was both audio and visually recorded.

     12.   Detective Varela read the defendant Emmanuel Armendariz his
           rights and asked if he was willing to waive his rights and speak
           with him. Defendant Emmanuel Armendariz elected to waive
           his rights and speak with Detective Varela.

           ...

           LEGAL CONCLUSIONS

           ...

     10.   The [trial court] finds that Emmanuel Armendariz was not
           under arrest when he provided the recorded statement to
           Detective Varela.

     11.   The [trial court] finds that Emmanuel Armendariz intentionally,
           knowingly and voluntarily waived his rights when he provided
           the recorded statement to Detective Varela.

     12.   The [trial court] finds that the statement made by Emmanuel
           Armendariz was voluntary and complies with the provisions of
           Texas Code of Criminal Procedure Section 38.22.
     13.
           The [trial court] find that the arrest of the defendant Emmanuel
           Armendariz was pursuant to a valid arrest warrant.”20




20 CR 015-018.

                                       11
                             GROUNDS FOR REVIEW


      The Eighth Court of Appeals decision conflicts with established Texas

Criminal Appeals Court precedent.       Here, the appellate court’s resolution of the

suppression issue is not “based on the reality of what happened at the trial court

level, but rather on appellate assumptions that may be entirely fictitious.”21 The

Court of Criminal Appeals’ intervention is necessary to apply the appropriate

standard of review.

      This Court should GRANT this petition for discretionary review because the

appellate court should afford almost total deference to a trial court’s determination

of the historical facts that the record supports.22




21 State v. Elias, 339 S.W.3d 667, 673-74 (Tex. Crim. App. 2011).
22 State v. Elias, 339 S.W.3d 667, 673-74 (Tex. Crim. App. 2011).        See also
Tex. R. App. Proc. 66.3.

                                           12
                      SUMMARY OF THE ARGUMENT

      The appellate court erred when it failed to apply the standard of review

required for suppression issues in considering a totality of the circumstances

analysis on whether Armendariz effectively waived his rights prior to providing a

recorded statement.

      The appellate court abused its discretion by failing to review the “totality of

the circumstances” or make a determination as to the requisite level of

Armendariz’s comprehension of his rights prior to waiver.     The appellate court

conducted a limited review of the video entered into evidence and noted their

review of the video recording is “limited because in answering the issue of a

knowing and voluntary waiver, [the appellate court] must analyze Detective

Varela’s demeanor in asking the questions and [Armendariz’s] demeanor in

answering those questions.”23




23 Armendariz, 2015 WL 2174481, at *1.

                                         13
                            STANDARD OF REVIEW

      An appellate court will review a trial court’s ruling on a motion to suppress

evidence under a bifurcated standard of review.24      The appellate court must view

the evidence in light most favorable to the trial court’s ruling.25   In reviewing the

trial court’s decision, the appellate court does not engage in its own factual

review.26   The trial judge is the sole trier of fact and judge of the credibility of the

witnesses and the weight to be given their testimony.27      The reviewing court,

therefore will give almost total deference to the trial court’s ruling on (1) questions

of historical fact, even if the trial court’s determination of those facts was not based

on an evaluation of credibility and demeanor; and, (2) application-of-law-to-fact

questions that turn on an evaluation of credibility and demeanor.28 But when

application-of-law-to-fact questions do not turn on the credibility and demeanor of




24 Amador v. State, 221 S.W.3d 666, 673 (Tex. Crim. App. 2007); Guzman v.
State, 955 S.W.2d 85, 89 (Tex. Crim. App. 1997).
25 Wiede v. State, 214 S.W.3d 17, 24 (Tex. Crim. App. 2007).
26 Romero v. State, 800 S.W.2d 539, 543 (Tex. Crim. App. 1990).
27 Wiede, 214 S.W.3d at 24; Elias, 339 S.W.3d at 673 (“Upon request of the
losing party on a motion to suppress evidence, the trial court shall state its
‘essential findings’ we mean ‘findings of fact and conclusions of law adequate to
provide an appellate court with a basis upon which to review the trial court’s
application of the law to the facts.” This requirement assures that appellate
resolution of the suppression issue ‘is based on the reality of what happened [at the
trial court level] rather than on [appellate] assumptions that may be entirely
fictitious.’).
28 Amador, 221 S.W.3d at 673.

                                           14
the witnesses, the trial court’s rulings on those questions are reviewed de novo.29

      When the trial court makes explicit findings, the reviewing court will

determine whether the evidence, when viewed in the light most favorable to the

trial court’s ruling, supports those fact-findings.30




29 Id.
30 State v. Kelly, 204 S.W.3d 808, 818-819 (Tex. Crim. App. 2006).

                                           15
                     ARGUMENTS AND AUTHORITIES



         I. The appellate court erred when it failed to apply the standard of
         review required for suppression issues in considering a totality of the
         circumstances analysis on whether Armendariz effectively waived his
         rights prior to providing a recorded statement.

      The appellate court abused its discretion by failing to review the “totality of

the circumstances” or make a determination as to the requisite level of

Armendariz’s comprehension of his rights prior to waiver.     The appellate court

conducted a limited review of the video entered into evidence and noted that their

review of the video recording is “limited because in answering the issue of a

knowing and voluntary waiver, [the appellate court] must analyze Detective

Varela’s demeanor in asking the questions and [Armendariz’s] demeanor in

answering those questions.”31

      After review of the video, the appellate court found that “the totality of the

circumstances surrounding the interrogation shows [Armendariz’s] waiver was

voluntary.   [Armendariz] nodded in the affirmative when asked whether he was

giving his statement of his own free will.”

      It is the State’s burden of showing a defendant knowingly, intelligently, and




31 Armendariz, 2015 WL 2174481, at *1, 2.

                                         16
voluntarily waived his Miranda rights.32     The standard is not to determine

whether there is an explicit waiver of the Miranda rights, but whether a person

does so knowingly, intelligently, and voluntarily.33 First, the relinquishment of

the right must be voluntary in the sense that it is 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.34 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 the Miranda rights have been waived.35 The

“totality-of-the-circumstances approach” requires the consideration of “all the

circumstances surrounding the interrogation,” including the defendant’s

experience, background, and conduct.36

      In the present case, Armendariz did not knowingly, intelligently, and

voluntarily waive his Miranda rights.     Here, the appellate court’s resolution of the

suppression issue is not “based on the reality of what happened at the trial court

32 Miranda, 384 U.S. at 444; Hill v. State, 429 S.W.2d 481, 486 (Tex. Crim. App.
1968).
33 Joseph v. State, 309 S.W.3d 20 (Tex. Crim. App. 2010).
34 Moran v. Burbine, 475 U.S. 412, 421 (1986); Joseph, 309 S.W.3d at 25.
35 Moran, 475 U.S. at 421; Joseph, 309 S.W.3d at 25 (quoting Fare v. Michael
C., 442 U.S. 707, 725 (1979)).
36 Joseph, 309 S.W.3d at 25.

                                           17
level, but rather on appellate assumptions that may be entirely fictitious.”37 The

appellate court assumes:

             “[W]e can assume the trial court concluded that there was
             nothing about Detective Varela’s tone or manner that was
             so overbearing as to render [Armendariz’s] statement
             involuntary. Further, we can assume the trial court
             concluded that [Armendariz’s] demeanor indicated that
             he understood what was going on and knowingly and
             intelligently waived his rights.”38

       In its totality of the circumstances analysis, the appellate court stands on

assumptions for which it does not have a factual basis.

       At the suppression hearing, the State entered into evidence the recorded

statement.   In that recorded statement, Armendariz does not verbally

acknowledge he understood his rights,39 rather the questions continue by the

police interrogator.40   Nor was there any written acknowledgement entered into

evidence such as a written waiver or Miranda card.      Of course, waivers can be

express or implied,41 but “a valid waiver will not be presumed simply from the

silence of the accused after warnings are given or simply from the fact that a

confession was in fact eventually obtained.”42 The question to determine if an


37   State v. Elias, 339 S.W.3d 667, 673-74 (Tex. Crim. App. 2011).
38   Armendariz, 2015 WL 2174481, at *1 (emphasis added).
39   2 RR 41:12-24.
40   Id.
41   Watson v. State, 762 S.W.2d 591, 601 (Tex. Crim. App. 1988).
42   Miranda, 384 U.S. at 475.

                                           18
accused waived his Miranda rights is not whether he made an explicit waiver, but

whether he did so knowingly, intelligently, and voluntarily.43    The State did not

prove that Armendariz possessed the requisite level of comprehension prior to

waiver.

        Other circumstances demonstrate the coercive nature of Armendariz’s

recorded statement.     For instance, the police interrogator conducted the

interrogation on the same date, only hours from when Armendariz learned his child

died.     Armendariz’s state of mind to make such a waiver and understand his

decision only hours from learning his child died is severely coercive in nature.

Armendariz, during this period of time, was not free to leave the police station and,

according to Detective Varela, Armendariz was under arrest.44

        The appellate court must inquire into the totality of the circumstances

surrounding the interrogation, to ascertain whether the accused in fact knowingly

and voluntarily decided to forego his rights to remain silent and to have the

assistance of counsel.45   There is a heavy burden upon the State to demonstrate

waiver,46 and any evidence that the accused was threatened, tricked, or cajoled into




43 Gately v. State, 321 S.W.3d 72 (Tex. App. Eastland 2010).
44 2 RR 39:16-23.
45 Fare v. Michael C., 442 U.S. at 725,. see North Carolina v. Butler, 441 U.S.
369, 374-375 (1979); Johnson v. Zerbst, 304 U.S. 458, 464 (1938).
46 See Miranda, 384 U.S at 475.

                                          19
a waiver will . . . show that a defendant did not voluntarily waive his privilege.47

The stark and disturbing facts show that Armendariz was relatively inexperienced,

grieving, and in an emotional state of mind.    These factors demonstrate how

easily experienced police offices can overbear a citizen’s free will and the

significant risk it poses.

       The appellate court was without the benefit of such findings and without

guidance to make a totality of circumstances review.      The trial court’s findings of

fact are devoid of any totality of the circumstances inquiry, and the State failed to

prove an effective waiver.

       After assessing its own limited review, the appellate court abused its

discretion in failing to consider the totality of the circumstances.   This Court

should reverse the trial court’s ruling and reform the trial court’s judgment.




47 Id. at 476.

                                          20
                                     PRAYER

      Because the appellate court erred in its review, Appellant Emmanuel

Armendariz seeks that this Court reverse the appellate court’s decision, and reverse

the appellate court’s judgment.   Appellant Armendariz respectfully requests this

Court to GRANT review of his petition.


                                              Respectfully submitted

                                              /s/ Eduardo N. Lerma, Sr.
                                              Eduardo N. Lerma, Sr.
                                              SBOT No. 12221300
                                              enl1417@aol.com

                                              Law Offices of Eduardo N. Lerma
                                              1417 Montana Avenue
                                              El Paso, Texas 79902-5016
                                              Tel.: (915) 533-0177
                                              Fax: (915) 533-7236

                                              Veronica Teresa Lerma
                                              SBOT No. 24062846
                                              vtlerma@gmail.com
                                              1417 Montana Avenue
                                              El Paso, Texas 79902-5016
                                              Tel.: (915) 533-4779
                                              Fax: (915) 533-7236
                                              Attorneys for Appellant
                                                     Emmanuel Armendariz




                                         21
                         CERTIFICATE OF SERVICE

      I certify that on July 8, 2015, a true and correct copy of Appellant’s Petition

for Discretionary Review was served on counsel as listed below pursuant to Texas

Rule of Appellate Procedure 9.5.


            Jaime E. Esparza, District Attorney
                500 E. San Antonio, Ste. 201
                El Paso, TX 79901
                 via personal delivery

            State Prosecuting Attorney
                P.O. Box 12405
                Austin, Texas 78711
                via regular first-class mail

            Emmanuel Armendariz
               via personal delivery


                                               /s/ Eduardo N. Lerma, Sr.
                                               Eduardo N. Lerma, Sr.
                                               SBOT No. 12221300
                                               enl1417@aol.com




                                         22
                      CERTIFICATE OF COMPLIANCE


      I certify that this document was produced on a computer using Microsoft

Mac 2012 and contains 1660 words, as determined by the computer software’s

word-count function, excluding the sections of the document listed in Texas Rule

of Appellate Procedure 9.4(i)(1).       A brief and response filed in the court of

appeals must not exceed 15,000 words.      TRAP 9.1(i)(2)(B).

      The parts of the documents that are excluded are:

       [1]    The caption
       [2]    The identity of parties and counsel.
       [3]    The statement regarding oral argument.
       [4]    The table of contents.
       [5]    The index of authorities.
       [6]    The statement of the case.
       [7]    The statement of the issues presented.
       [8]    The statement of jurisdiction.
       [9]    The statement of procedural history.
       [10]   The signature block
       [11]   The proof of service
       [12]   The certification.
       [13]   The certificate of compliance.
       [14]   The appendix

      The Font used in this document is Times New Roman, and the size of the

font for the body and footnote is 14.

                                          /s/ Veronica Teresa Lerma
                                         Veronica Teresa Lerma
                                         Texas Bar No. 24062846
                                         Attorney for Appellant


                                          23
                                  APPENDIX


Exhibit A:   Armendariz v. State, No. 08-13-00125-CR, 2015 WL 2174481, at *1
             (Tex. App. – El Paso, May 8, 2015).

Exhibit B:   Trial Court’s Findings of Fact and Conclusions of Law.

Exhibit C:   Selected Reporter’s Record Excerpts

Exhibit D:   Judgment and Opinion by the Court of Appeals, Eighth District

Exhibit E:   Judgment and Conviction by the trial court




                                       24
                       Exhibit A
       Armendariz v. State, No. 08-13-00125-CR
2015 WL 2174481, at *1 (Tex. App. – El Paso, May 8, 2015).




                        P a g e | 25
Armendariz v. State, Not Reported in S.W.3d (2015)



                                                     manslaughter. The trial court sentenced
          2015 WL 2174481                            Appellant to three years' confinement for
       Only the Westlaw citation                     each count, to run concurrently. Appellant
        is currently available.                      appeals the trial court's refusal to suppress
                                                     his recorded statement. He asserts the
       SEE TX R RAP RULE 47.2                        trial court erroneously found that he was
       FOR DESIGNATION AND                           not in custody at the time he provided
       SIGNING OF OPINIONS.                          his recorded statement, and complains the
                                                     trial court failed to conduct a totality-
         (DO NOT PUBLISH)                            of-the-circumstances review and hold the
       Court of Appeals of Texas,                    State to its burden to prove he effectively
                El Paso.                             waived his rights. We conclude there is no
                                                     reversible error and affirm.
 Emmanuel Armendariz, Appellant,
                 v.
   The State of Texas, Appellee.
                                                                 BACKGROUND
            No. 08–13–00125–
           CR | May 8, 2015                          Appellant picked up his two-year-old son
                                                     from his mother-in-law before noon on
Appeal from the 409th District Court of El           August 27, 2010. After arriving home,
Paso County, Texas (TC#20100D06116)                  Appellant forgot his son was in the truck
                                                     and left him there while he prepared for an
Attorneys and Law Firms                              upcoming trip to Las Vegas and ran some
                                                     errands with his father-in-law. Several
Eduardo N. Lerma, for Emmanuel
                                                     hours later, Appellant discovered his son
Armendariz.
                                                     was still in the truck. The child had died.
John L. Davis, Jaime E. Esparza, for The             That evening around 9 p.m., Appellant
State of Texas.                                      provided a video-recorded statement to
                                                     the police.
Before McClure, C.J., Rodriguez, and
Hughes, JJ.                                          The trial court held a suppression hearing
                                                     to determine, among other things, whether
                                                     Appellant's recorded statement should be
                                                     suppressed. Following the hearing, the
                  OPINION
                                                     trial court entered findings of fact and
STEVEN L. HUGHES, Justice                            conclusions of law, including a finding
                                                     that when the police detective met with
 *1 Appellant Emmanuel Armendariz                    Appellant to take his recorded statement,
pleaded guilty to a two-count indictment             “at the time the defendant was not
charging him with injury to a child and              under arrest.” The court entered a related


              © 2015 Thomson Reuters. No claim to original U.S. Government Works.                    1
Armendariz v. State, Not Reported in S.W.3d (2015)



conclusion of law stating: “The Court                on the credibility and demeanor of
finds that [Appellant] was not under arrest          witnesses. Alford, 358 S.W.3d at 652.
when he provided the recorded statement              However, if credibility and demeanor
to Detective Varela.” Ultimately, the                are not necessary to the resolution of
trial court concluded “that Emmanuel                 a mixed question of law and fact,
Armendariz intentionally, knowingly and              we review the question de novo. See
voluntarily waived his rights when                   id.; Young v. State, 283 S.W.3d 854,
he provided the recorded statement to                873 (Tex.Crim.App.2009). This same
Detective Varela[,]” and that Appellant's            deferential standard of review applies to
recorded statement was voluntary and                 a trial court's determination of historical
“complies with the provisions of Texas               facts, demeanor, and credibility even
Code of Criminal Procedure Section                   when that determination is based on a
38.22.”                                              video recording. State v. Duran, 396
                                                     S.W.3d 563, 570 (Tex.Crim.App.2013).
                                                     The trial court's ruling will be upheld if
                                                     it is reasonably supported by the record
               DISCUSSION
                                                     and is correct under any theory of law
                                                     applicable to the case. Ramos, 245 S.W.3d
            Standard of Review                       at 418.

We review a trial court's ruling refusing
to suppress evidence for an abuse of
discretion. Crain v. State, 315 S.W.3d                   Finding and Conclusion that
43, 48 (Tex.Crim.App.2010); Ramos                       Appellant was Not Under Arrest
v. State, 245 S.W.3d 410, 417–18
                                                      *2 In Issue One, Appellant contends the
(Tex.Crim.App.2008). In reviewing the
                                                     trial court abused its discretion in finding
trial court's decision, we review the
                                                     and concluding he was not under arrest
evidence in the light most favorable to
                                                     when he gave his recorded statement.
the trial court's ruling. State v. Kelly, 204
S.W.3d 808, 818 (Tex.Crim.App.2006).
                                                     At the suppression hearing, Detective
We afford almost total deference to a
                                                     Varela of the Socorro Police Department
trial court's determination of historical
                                                     testified that Appellant was under arrest
facts, but review pure questions of law
                                                     at the time he took Appellant's recorded
de novo. Alford v. State, 358 S.W.3d
                                                     statement. Detective Chavez of the El
647, 652 (Tex.Crim.App. 2012); see
                                                     Paso Sheriff's Department also testified
Montanez v. State, 195 S.W.3d 101,
                                                     that Appellant was under arrest at the
109 (Tex.Crim.App.2006). Likewise, we
                                                     Socorro Police station when he first
give almost total deference to a trial
                                                     contacted Appellant. Moreover, Detective
court's resolution of mixed questions of
                                                     Chavez's partner, Detective Santibanez,
law and fact if those questions turn
                                                     testified Appellant was under arrest when


              © 2015 Thomson Reuters. No claim to original U.S. Government Works.                   2
Armendariz v. State, Not Reported in S.W.3d (2015)



he arrived at the Socorro Police station             record, we do not defer to those findings.
after 9 p.m. Despite this testimony, the             See Garcia v. State, 919 S.W.2d 370,
trial court entered a finding of fact                379 (Tex.Crim.App.1994) (deference not
that when Detective Varela met with                  given to trial court's suppression-hearing
Appellant, he “was not under arrest,”                findings that were not supported by record
and entered a conclusion of law that                 on appeal); Derichsweiler v. State, 301
Appellant “was not under arrest when                 S.W.3d 803, 812 (Tex.App.–Fort Worth
he provided the recorded statement to                2009) (trial court's finding of fact after
Detective Varela.” The trial court also              suppression hearing was not supported
concluded Appellant's recorded statement             by the record and was not entitled
was voluntary and complied with Article              to deference), rev'd on other grounds,
38.22 of the Texas Code of Criminal                  348 S.W.3d 906 (Tex.Crim.App.2011).
Procedure.                                           Because there is no evidence to support
                                                     the trial court's finding and conclusion
                                                     that Appellant was not under arrest at
                                                     the time he provided his oral statement,
                   Analysis
                                                     we give the finding and conclusion no
The State concedes the trial court's legal           deference.
conclusion that Appellant was “not under
arrest” has no basis in the record and               The real question then is the impact,
is without support. We agree with the                if any, of this erroneous finding and
State there is no basis in the record for            conclusion. Appellant's reasoning is hard
the finding and conclusion that Appellant            to follow in this regard, but it hinges
was not under arrest when he gave his                on Article 38.22 and its requirements. 1
statement. Detectives Varela, Chavez, and            Appellant appears to contend that because
Santibanez each testified that Appellant             Article 38.22 applies only to statements
was under arrest when they met with him.             made as a result of a custodial
                                                     interrogation, 2 the trial court's finding
The State also argues, however, that                 and conclusion that he was not under
the trial court's erroneous finding is not           arrest at the time he gave his statement
dispositive; it is merely entitled to no             somehow conflict with the trial court's
deference. We agree. Normally if the                 conclusion that his recorded statement
court's findings are supported by the                was voluntary and complied with Article
record, we are not at liberty to disturb             38.22. Appellant apparently asserts that
them, and we will only address whether               this conflict somehow invalidates the trial
the trial court improperly applied the               court's conclusion that he knowingly and
law to the facts. State v. Wood, 828                 voluntarily waived his rights. On this
S.W.2d 471, 474 (Tex.App.–El Paso                    basis, Appellant requests that we reverse
1992, no pet.). When, however, a trial               and reform the judgment.
court's findings are not supported by the


              © 2015 Thomson Reuters. No claim to original U.S. Government Works.                  3
Armendariz v. State, Not Reported in S.W.3d (2015)



 *3 We are at a loss to see how                      and to hold the State to its burden to prove
the trial court's determination had any              he effectively waived his rights.
effect on Appellant's rights. If Appellant
was in custody, he was entitled to                   At the suppression hearing, Detective
all the protections provided by Article              Varela testified he advised Appellant of
38.22, and his recorded statement was                his rights during Appellant's recorded
admissible only if it was made knowingly             statement, and that Appellant indicated
and voluntarily. But, even if Appellant              that he understood his rights and agreed to
was not in custody, he was still                     waive them. Detective Varela explained
entitled to a determination whether                  that he did not threaten or coerce
his statement was voluntary, since the               Appellant to provide a statement nor
mandate in Article 38.22 that statements             promise Appellant anything in return.
be voluntary applies to both an accused's            Detective Varela stated that Appellant did
custodial and noncustodial statements.               not appear to be under the influence of any
Oursbourn v. State, 259 S.W.3d 159, 171              drug or alcohol at the time of his recorded
(Tex.Crim.App.2008).                                 statement, and that Appellant never asked
                                                     for an attorney or that the interview be
In any event, we conclude that because               stopped. Appellant was never denied the
the uncontroverted evidence establishes              use of a restroom, or food, or cigarettes.
Appellant was under arrest at the time
of his statement, he was entitled to the             Appellant's recorded statement was
Article 38.22 protections. Consequently,             admitted into evidence for purposes of the
there is no conflict with the trial court's          suppression hearing. The recording shows
conclusion that Appellant's recorded                 Detective Varela informing Appellant
statement was voluntary and complies                 he is going to read him his rights
with Article 38.22. Appellant is not                 and asking Appellant to inform him if
entitled to reversal or reformation of               he has any questions about his rights.
the judgment. We simply proceed to                   In response, Appellant nods his head
determine if the evidence supports the               up and down. Detective Varela then
trial court's conclusion that Appellant's            proceeds to inform Appellant of his right
statement was made voluntarily.                      to remain silent and that anything he
                                                     says can be used against him, and the
                                                     video shows Appellant indicating his
                                                     understanding of this right by nodding his
           Knowing, Intelligent,
                                                     head in assent and stating “yeah.” When
          and Voluntary Waiver
                                                     Varela informs Appellant of his right
In Issue Two, Appellant contends the trial           to counsel and to have counsel present
court erroneously failed to consider the             during questioning, Appellant interrupts
totality of the circumstances in its review          and asks “What are you guys doing right
                                                     now?” Detective Varela explains they


              © 2015 Thomson Reuters. No claim to original U.S. Government Works.                   4
Armendariz v. State, Not Reported in S.W.3d (2015)



will soon be talking about the case but              “I can't answer you that.” After another
that now he is reading Appellant his                 lengthy narrative from Appellant, Officer
rights “so that that way you'll know”;               Juarez explains: “We've ... pretty much
Appellant again interjects “But you guys             asked you whatever questions we needed
are going to start asking questions, right?”         to find out. Is there something that you
Appellant states, “I mean, there's nothing           think we need to know ... something
wrong but I'm just saying, I don't want              that we haven't asked? Something you
to say something that's going to fuck                may want to say at this time?” Appellant
my shit up.” Detective Varela responds               shakes his head back and forth in the
that he understands and explains “What               negative, and the interview is concluded.
I want to know is if you understand                  The entire recorded interview lasted
that right to counsel.” Appellant nods               slightly under fifteen minutes. During this
his head up and down, and states “I                  time, Appellant never requested counsel
understand.” Detective Varela continues              and never asked that the interview be
the warnings and informs Appellant of                stopped. During the interview, Appellant
his right to have an attorney appointed              is seated and not restrained in any
prior to questioning if Appellant is unable          way. Appellant and the officers speak
to afford an attorney. Appellant again               in English, and on a few occasions,
affirmatively nods his head up and down.             Appellant uses Spanish terminology.
When Detective Varela asks Appellant
whether he understands that he can stop
the interview at any time if he decides
                                                       Limited Review of Video Recording
to answer questions without an attorney,
Appellant nods his head up and down,                 We note that our review of the video
puts his head in hands, and answers, “Yes,           recording in particular is somewhat
sir.” Finally, when Appellant is asked               limited because in answering the issue of
whether he is making this statement “out             a knowing and voluntary waiver, we must
of your own free will,” Appellant again              analyze Detective Varela's demeanor in
affirmatively nods his head up and down.             asking the questions and Appellant's
                                                     demeanor in answering those questions.
 *4 Appellant then proceeds to respond               The trial court concluded from its review
to questions about the incident, often               of the video recording that Appellant's
speaking in the narrative for extended               waiver was voluntary. And we can assume
periods of time, so much so that Detective           the trial court concluded that there was
Varela at times informs Appellant “I                 nothing about Detective Varela's tone or
might stop and ask you some questions.”              manner that was so overbearing as to
At one point, after speaking in the                  render Appellant's statement involuntary.
narrative for a time, Appellant asks,                Further, we can assume the trial court
“What do I do now?” The other officer                concluded that Appellant's demeanor
in the room, Officer Juarez, responds,               indicated that he understood what was


              © 2015 Thomson Reuters. No claim to original U.S. Government Works.                  5
Armendariz v. State, Not Reported in S.W.3d (2015)



going on and knowingly and intelligently             Barefield v. State, 784 S.W.2d 38, 40–
waived his rights. We are required to give           41 (Tex.Crim.App.1989)(noting that the
almost total deference to the trial court's          oral confession statute does not require
determination of demeanor even when                  an “express verbal statement from an
that determination is based on a video               accused that he waives his rights prior
recording. See Duran, 396 S.W.3d at 570.             to giving the statement”), overruled on
Applying this “almost total deference”               other grounds, Zimmerman v. State, 860
standard, we conclude that the trial court           S.W.2d 89, 94 (Tex.Crim.App.1993).
did not abuse its discretion in finding and          Rather, a waiver of one's Article 38.22
concluding that Appellant's statement was            rights may be “ ‘inferred from the actions
knowingly, intelligently, and voluntarily            and words of the person interrogated.’ ”
given.                                               Joseph, 309 S.W.3d at 24–25 (quoting
                                                     North Carolina v. Butler, 441 U.S. 369,
                                                     373, 99 S.Ct. 1755, 60 L.Ed.2d 286
                                                     (1979)). But that waiver must still be
                   Analysis
                                                     knowingly, intelligently, and voluntarily
As a general rule, a determination                   made. Joseph, 309 S.W.3d at 25.
whether a statement was voluntarily
rendered is analyzed by examining the                 *5 In evaluating whether a waiver is
totality of the circumstances. Arizona               knowingly, intelligently, and voluntarily
v. Fulminante, 499 U.S. 279, 285–86,                 made, we employ a two-part test, asking:
111 S.Ct. 1246, 1252, 113 L.Ed.2d 302                (1) whether the relinquishment of the right
(1991); see Delao v. State, 235 S.W.3d               was voluntary by determining whether it
235, 239 (Tex.Crim.App.2007). It is the              was the product of a free and deliberate
State's burden to show that a defendant              choice rather than intimidation, coercion,
knowingly, intelligently, and voluntarily            or deception; and (2) whether the waiver
waived his rights under Miranda v.                   was made with full awareness of the
Arizona, 384 U.S. 436, 444–45, 86 S.Ct.              nature of the rights being abandoned
                                                     and the consequences of the decision
1602, 1612, 16 L.Ed.2d 694 (1966), 3
                                                     to abandon it. Id. at 25 (citing Moran
and Article 38.22 of the Texas Code of
                                                     v. Burbine, 475 U.S. 412, 421, 106
Criminal Procedure. Joseph v. State, 309
                                                     S.Ct. 1135, 89 L.Ed.2d 410 (1986)).
S.W.3d 20, 24 (Tex.Crim.App.2010).
                                                     “Only if the ‘totality of the circumstances
                                                     surrounding the interrogation’ reveal both
In this regard, the Court of Criminal
                                                     an uncoerced choice and the requisite
Appeals has reiterated “ ‘that neither
                                                     level of comprehension may a court
a written nor an oral express waiver
                                                     properly conclude that the Miranda rights
is required’ ” before a statement is
                                                     have been waived.” Moran, 475 U.S.
admissible under the mandates of Article
                                                     at 421. In reviewing the totality of
38.22. Id. (quoting Watson v. State, 762
                                                     the circumstances, we may consider the
S.W.2d 591, 601 (Tex.Crim.App.1988));


              © 2015 Thomson Reuters. No claim to original U.S. Government Works.                  6
Armendariz v. State, Not Reported in S.W.3d (2015)



defendant's background, experience, and              We also conclude that the totality of the
conduct. Joseph, 309 S.W.3d at 25 (citing            circumstances demonstrates Appellant's
Fare v. Michael C., 442 U.S. 707, 725, 99            waiver was made with full awareness
S.Ct. 2560, 61 L.Ed.2d 197 (1979)).                  of both the nature of the rights being
                                                     abandoned and the consequences of the
The totality of the circumstances                    decision to abandon them. Appellant was
surrounding the interrogation shows                  given all the required warnings mandated
Appellant's waiver was voluntary.                    by Article 38.22, including that Appellant
Appellant nodded in the affirmative when             was not required to say anything and
asked whether he was giving his statement            could stop the interview at any time, and
of his own free will. Immediately after              after each question Appellant was asked
Detective Varela informed Appellant of               if he understood his rights. Appellant
his rights, Appellant repeatedly indicated           consistently answered in the affirmative,
that he understood those rights and                  either by nodding his head up and
immediately and willingly participated               down or through an affirmative statement
in the fifteen-minute interrogation. In              indicating his understanding. Appellant
fact, Appellant was eager to tell                    then freely answered all the questions
his story, forcing Detective Varela                  posed, and provided extensive narratives
to advise Appellant he may have to                   on occasion without any prompting for
interrupt Appellant to pose questions.               him to do so. With the exception of a few
The recording shows that Appellant never             Spanish terms uttered by Appellant, all
asked to stop the interrogation. At the              questions, answers, and narratives were
suppression hearing, Detective Varela                stated in English.
testified that he did not threaten or
coerce Appellant's statement, nor promise            As the Court of Criminal Appeals
anything to Appellant in return. Further,            noted in Joseph, “[t]he warnings read
the record does not show any evidence of             to Appellant made him fully aware of
intimidation or coercion, such as resorting          the rights set forth in Miranda and
to physical or psychological pressure to             Article 38.22, as well as the consequences
elicit statements, or making promises                of abandoning those rights.” Joseph,
that could have possibly jeopardized the             309 S.W.3d at 27 (citations omitted).
voluntariness of Appellant's statement.              By indicating his understanding of
The parties remained calm throughout                 the rights and then freely answering
the entire interrogation process, and                the questions without ever asking the
Appellant freely explained the events of             interview to cease, Appellant's conduct
the day, how he found his son, and why               undoubtedly demonstrated his awareness
he thought he had forgotten about his son            of his rights and his knowing waiver
in his truck.                                        of those rights. Based on the totality of
                                                     the circumstances, the trial court could
                                                     reasonably infer a knowing waiver from


              © 2015 Thomson Reuters. No claim to original U.S. Government Works.                 7
Armendariz v. State, Not Reported in S.W.3d (2015)



Appellant's words and actions. Both the                    the testimony from the hearing and the
testimony at the suppression hearing                       content of Appellant's recorded statement.
and the recorded interview establish that
Appellant knowingly, intelligently, and                    The recorded statement contained the
voluntarily waived his rights.                             requisite warnings informing Appellant
                                                           of his rights, and the record
 *6 Appellant contends the trial court                     demonstrates that Appellant knowingly,
did not conduct a totality-of-the-                         intelligently, and voluntarily waived
circumstances review and asserts that                      those rights. Consequently, Appellant's
the trial court did not enter a proper                     recorded statement was admissible, and
finding. We observe, however, that the                     the trial court did not abuse its
trial court indicated it was going to review               discretion in denying Appellant's motion
the recorded interrogation carefully                       to suppress. Issues One and Two are
and then included among its legal                          overruled.
conclusions “that Emmanuel Armendariz
intentionally, knowingly and voluntarily
waived his rights when he provided the                                      CONCLUSION
recorded statement to Detective Varela
[,]” and “that the statement made by                       The trial court's judgment is affirmed.
Emmanuel Armendariz was voluntary and
complies with the provisions of Texas
Code of Criminal Procedure Section                         All Citations
38.22.” This demonstrates that in making
                                                           Not Reported in S.W.3d, 2015 WL
its decision, the trial court considered both
                                                           2174481


Footnotes
1   Article 38.22 provides that no oral statement of an accused made as a result of a custodial interrogation shall
      be admissible against the accused in a criminal proceeding unless certain requirements have been satisfied,
      including that prior to the statement, but during the recording, the accused is given his Miranda warnings and
      the accused knowingly, intelligently, and voluntarily waives those rights. See TEX.CODE CRIM.PROC.ANN.
      art. 38.22, §§ 2(a), 3 (West Supp. 2014).
2     Article 38.22 applies only to oral statements made as a result of a custodial interrogation. TEX.CODE CRIM.
      PROC.ANN. art. 38.22, § 3; see also id. at § 5 (nothing in Article 38.22 precludes the admission of a
      statement “that does not stem from custodial interrogation”).
3     “Prior to any questioning, the person must be warned that he has a right to remain silent, that any statement
      he does make may be used as evidence against him, and that he has a right to the presence of an attorney,
      either retained or appointed. The defendant may waive effectuation of these rights, provided the waiver is
      made voluntarily, knowingly and intelligently. If, however, he indicates in any manner and at any stage of the
      process that he wishes to consult with an attorney before speaking there can be no questioning. Likewise,
      if the individual is alone and indicates in any manner that he does not wish to be interrogated, the police
      may not question him. The mere fact that he may have answered some questions or volunteered some
      statements on his own does not deprive him of the right to refrain from answering any further inquiries until




               © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                     8
Armendariz v. State, Not Reported in S.W.3d (2015)


      he has consulted with an attorney and thereafter consents to be questioned.” Miranda, 384 U.S. at 444–
      45, 86 S.Ct. at 1612.


End of Document                                           © 2015 Thomson Reuters. No claim to original U.S. Government Works.




              © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                          9
                       Exhibit B
Trial Court’s Findings of Fact and Conclusions of Law.




                      P a g e | 26
                                                     -   ··---·-             -         - - - - - - -- - - -----..




                                                                                              '     ·-··•I '\.•
                           IN THE 409TH DISTRICT COURT t .·.~: .                                      •   J
                                                                                                  ·-..: ..'\
                              EL PASO COUNTY, TEXAS      ···
                                                              ~~. · ?     fl ~i :::J   ')'1
                                                              t ' ~ •.~     .. ,, t_ I
THE STATE OF TEXAS                               §
                                                 §
vs.                                              §
                                                 §
EMMANUEL ARMENDARIZ                              §


                   FINDINGS OF FACT AND CONCLUSIONS OF LAW


FACTUAL FINDINGS

      I. The defendant was charged by indictment with manslaughter and injury to a
         child December 15, 2010, in El Paso County, Texas.
      2. El Paso Sheriff Department Detective Rafael Chavez III prepared applications
         for search warrants for Manny Malique Armendariz.                      .
      3. The search warrant for the vehicle was issued by Judge David Bonilla on
         September 2, 2010 and authorized both the search of the 1996 Nissan Pathfinder
         bearing Texas registration V68FK.R, VIN #:JN8AR05Y1TW028713, and the
         seizure of Latent prints from the interior and exterior of the vehicle; Biological
         evidence to include bodily fluids from the interior and exterior of the vehicle;
         DNA swabbings; Narcotics/Narcotic Paraphemelia; Photographs of the vehicle.
      4. The search warrant for the vehicle was executed on September 4, 2010. The
         items seized at that location were: Baby car seat; Red 'BeBe' sweater with
         possible vomit stains; Baby white sock; Rolling Zig-Zag papers; Two packets
         with white Mexican brand pills; White envelope with card and a one folded
         dollar bill with white powdery substance; grey shirt with possible vomit stains;
         empty liquor bottle; Baby white NIKE shoes; DNA swab of left rear door
         interior; DNA swab ofleft rear door window interior; DNA swab ofleft rear
         floorboard; DNA swab of right rear door window interior; DNA swab right rear
         door window interior; Latent palm print from left rear interior window; Latent
         prints from right rear interior window; Photograph of adult female and male
         child; Photographs of interior and exterior of vehicle.
      5. The affidavit in support of probable cause to issue the warrant for the
         defendant's home was based on information provided to Detective Chavez on
         August 27, 2010 from an investigation conducted by Socorro Police Department
         and The El Paso Sherriff's Department in which the defendant provided a
         statement that he had left the deceased child in the vehicle after picking him up
         at his mother-in-laws house. The defendant stated that he was at Speaking Rock
         and then went to his mother-in-laws house to pick up the deceased child. The
         defendant then went home and says he forgot the deceased child was in the
         vehicle. The deceased child was found inside the vehicle by the father at




                                                                                                                  oc   015
      approximately 1800 hours. Evidence in plain view ofthe vehicle indicates the
      deceased child attempted to open the rear left door and window of the vehicle.
6. The search warrant for Manny Malique Annendariz, date of birth 10/16/07 was
      issued by Judge David Bonilla on September 2, 20 l 0.
7. The search warrant Manny Malique Annendariz was executed on September 2,
     2010. The items seized at that location were: Right hand palm print; Left hand
     palm print; Fingerprints of right hand.
8. The affidavit in support of probable cause to issue the warrant for the
     defendant's home was based on information provided to Detective Chavez on
     August 27,2010 from an investigation conducted by Socorro Police Department
     and The El Paso Sherriff s Department in which the defendant provided a
     statement that he had left the deceased child in the vehicle after picking him up
     at his mother-in-laws house. The defendant stated that he was at Speaking Rock
     and then went to his mother-in-laws house to pick up the deceased child. The
     defendant then went home and says he forgot the deceased child was in the
     vehicle. The deceased child was found inside the vehicle by the father at
     approximately 1800 hours. A palm print and smeared fmgerprints were located
     in the interior of the rear left window of the vehicle the defendant stated he had
     left the deceased child in.
9. A written consent to search person and remove body substances was obtained
     by Detective Louis Santibanez from the defendant on August 27, 2010.
10. Detective Varela met with defendant Emmanuel Armendariz and at the time the
     defendant was not under arrest.
I 1. Detective Vare! a was in a room containing audio and video equipment.
     Emmanuel Armendariz provided a statement to Detective Varela that was both
     audio and visually recorded.
12. Detective Varela read the defendant Emmanuel Armendariz his rights and asked
     if he was willing to waive his rights and speak with him. Defendant Emmanuel
     Armendariz elected to waive his rights and speak with Detective Varela.
13. The State and the defense have agreed to not use any evidence collected from
     the residence.
14. The State and the defense have agreed not to use blood draw evidence.
J5. The State and the defense have agreed not to use any statements made by the
     defendant prior to the DVD statement made to Detective Varela.
16. Detective Chavez testified at the motion to suppress hearing on April 8, 201 1
     that he obtained the search warrants for the vehicle and Manny Malique
     Armendariz.
17. Detective Santibanez testified at the motion to suppress hearing on AprilS,
     20 t 1 that he obtained the written consent to search person and remove body
     substances from the defendant on August 27,2010.
18. Detective Varela testified in the motion to suppress hearing on AprilS, 201 I
     that he and Officer Juarez were present when the recorded statement from the
     defendant was obtained on August 27, 2010.
19. The defendant Emmanuel Armendariz was arrested pursuant to warrant number
     Ml OW7083 for the offense of Injury to a Child on the 28th day of August, 2010.
LEGAL CONCLUSIONS
    1. The Court has reviewed the application and affidavit for the search warrant for
         the vehicle. The Court finds that sufficient probable cause existed for the
         issuance of the search warrant for the vehicle.
    2. The Court finds that the search warrant for the vehicle is not a general search
         warrant and it complies with Article \8.0\ of the TEXAS CODE OF
         CRIMINAL PROCEDURE.
    3. The Court finds that the search warrant for the vehicle falls under both Article
         18.02 (9) and Article 18.02 (10) ofthe TEXAS CODE OF CRIMINAL
         PROCEDURE.
    4. The Court finds that Judge David Bonilla was authorized to issue the search
         warrant for the vehicle as the judge of a statutory created court; The El Paso
         Criminal Law Magistrate Court.
    5. The Court has reviewed the application and affidavit for the search warrant for
         Manny Malique Armendariz. The Court fmds that sufficient probable cause
         existed for the issuance of the search warrant for Manny Mali que Armendariz.
    6. The Court finds that the search warrant for Manny Malique Annendariz is not
         a general search warrant and it complies with Article 18.01 of the TEXAS
         CODE OF CRIMINAL PROCEDURE.
    7. The Court finds that the search warrant for Manny Malique Armendariz falls
         under both Article 18.02 (9) and Article 18.02 (10) of the TEXAS CODE OF
         CRIMINAL PROCEDURE.
    8. The Court finds that Judge David Bonilla was authorized to issue the search
         warrant for the vehicle as the judge of a statutory created court; The El Paso
         Criminal Law Magistrate Court.
    9. The Court finds that the searches of the vehicle and Manny Mali que
         Annendariz were pursuant to valid warrants and were legal.
    l 0. The Court fmds that Emmanuel Armendariz was not Wlder arrest when he
         provided the recorded statement to Detective Varela.
    11. The Court finds that Emmanuel Armendariz intentionally, knowingly and
         voluntarily waived his rights when he provided the recorded statement to
         Detective Varela.
    I 2. The Court finds that the statement made by Emmanuel Armendariz was
         voluntary and complies with the provisions of Texas Code of Criminal
         Procedure Section 38.22.
    13. The Court finds that the arrest of the defendant Emmanuel Armendariz was
         pursuant to a valid arrest warrant.




                                                                                          :.,.; f'
                                                                                          I')   L'
                                                                                                     1,1"'.:_   7
1-

· ~-------------------------------------------------


        Signed on this the   ;)   7   day of April, 2012




                                                           cF7fz2
                                                           Honorable Sam Medrano
                                                           Judge 409th Judicial District




                                                                                           ~ .....
                                                                                           ·.; \.'
                                                                                                     f,'J..._• 8
                Exhibit D.l

Court's Notice of Defendant's Right to Appeal
            Exhibit C
Selected Reporter’s Record Excerpts




             P a g e | 27
                                                                         1


 1                          REPORTER'S RECORD
                         VOLUME 2 OF 5 VOLUMES
 2            COURT OF APPEALS CAUSE NUMBER 08-13-00125-CR
                   TRIAL COURT CAUSE NO. 20100D06116
 3

 4   THE STATE OF TEXAS                   )    IN THE DISTRICT COURT

 5                                        )

 6                                        )

 7                                        )

 8   vs.                                  )

 9                                        )    EL PASO COUNTY, TEXAS

10                                        )

11                                        )

12   EMMANUEL ARMENDARIZ                  )

13                                        )

14                                        )    409TH JUDICIAL DISTRICT

15

16               ---------------------------------------

17                           MOTION TO SUPPRESS

18               ---------------------------------------

19         On the 8th day of April, 2011, the following

20   proceedings came on to be heard in the above-entitled

21   and numbered cause before the Honorable SAM MEDRANO,

22   JR., Judge presiding, held in El Paso, El Paso County,

23   Texas:

24         Proceedings reported by machine shorthand utilizing

25   computer-assisted realtime transcription.

                NATALIE A. MARTINEZ; OFFICIAL COURT REPORTER
                 409TH DISTRICT COURT; 500 E. SAN ANTONIO, RM. 459
                        EL PASO, TX 79901    (915) 834-8209
                                                                       32


 1       Q.    Where did you first have contact with him?

 2       A.    At our substation.

 3       Q.    What was the purpose of your contact with the

 4   defendant?

 5       A.    Initially to Mirandize him and then take a

 6   statement from him.

 7       Q.    So am I understanding you gave him his Miranda

 8   rights?

 9       A.    Yes.

10       Q.    And did you, in fact, take a statement from the

11   defendant?

12       A.    Yes.

13       Q.    Do you see the individual that you took the

14   statement from in the courtroom today?

15       A.    Yes.

16       Q.    Can you please point to him and identify

17   something he is wearing?

18       A.    The gentleman to my right wearing the striped

19   shirt -- blue with red stripes.

20                     MS. CLAUSEN:      May the record reflect that

21   the witness has identified the defendant?

22                     THE COURT:      Yes, ma'am.

23       Q.    (BY MS. CLAUSEN)         Where did you meet with him?

24   Was it in an office or was it just out with everybody

25   else?

               NATALIE A. MARTINEZ; OFFICIAL COURT REPORTER
                  409TH DISTRICT COURT; 500 E. SAN ANTONIO, RM. 459
                         EL PASO, TX 79901    (915) 834-8209
                                                                            36


 1          A.   No.

 2          Q.   To your knowledge was he under the influence of

 3   any narcotic drug or alcohol to where he could not

 4   communicate with you or could not understand you?

 5          A.   No.

 6          Q.   To your knowledge was the vehicle ever

 7   searched?

 8          A.   No.

 9                     MS. CLAUSEN:      Pass the witness.

10                     THE COURT:      Mr. Lerma.

11                     MR. LERMA:      Yes, Your Honor.        Thank you.

12                          CROSS-EXAMINATION

13   BY MR. LERMA:

14          Q.   What time did you -- state your name again,

15   sir.

16          A.   Javier Varela.

17          Q.   And where are you employed?

18          A.   Socorro Police Department.

19          Q.   Did you respond initially at 1803 -- to the

20   alleged crime scene?

21          A.   I was at home so initially I go to the station

22   to pick up my unit and then I head out to the scene.

23          Q.   And when was it -- what specific time did you

24   interrogate Mr. Armendariz?

25          A.   9:10 p.m. of that same day.

                 NATALIE A. MARTINEZ; OFFICIAL COURT REPORTER
                  409TH DISTRICT COURT; 500 E. SAN ANTONIO, RM. 459
                         EL PASO, TX 79901    (915) 834-8209
                                                                            37


 1         Q.    Is this before the sheriff's department got

 2   there?

 3         A.    Yes, sir.

 4         Q.    And you were the only one present during the

 5   interrogation?

 6         A.    No, sir.    There was -- Officer Juarez was in

 7   the same room during the interrogation.

 8         Q.    After you finished your interrogation did the

 9   sheriff's department then take over the case?

10         A.    Shortly after, yes, sir.

11         Q.    Why was that, sir?

12         A.    I would not know.       That's determined by our

13   chief of police.

14         Q.    Is there some type of policy that the sheriff's

15   department takes over a major crime -- incident?

16                     MS. CLAUSEN:      Object to relevance,

17   Your Honor.

18                     THE COURT:      Overruled.      Answer if you

19   know.

20         A.    I don't know the exact policy.            I do know that

21   in certain types of cases they are called out to assist

22   us.     In some cases they take the case.

23         Q.    Who called the sheriff's department?

24         A.    I would not know.

25         Q.    So it could have been your chief?

                NATALIE A. MARTINEZ; OFFICIAL COURT REPORTER
                  409TH DISTRICT COURT; 500 E. SAN ANTONIO, RM. 459
                         EL PASO, TX 79901    (915) 834-8209
                                                                          39


 1       A.      It just varies on the case.           I mean, it's not

 2   for every type of case.         Like I said, it's not a

 3   specific criteria that I know of, but I investigate the

 4   case and if somebody in our management decides then they

 5   call the sheriff.

 6       Q.      Do you feel you have the capacity to

 7   investigate this type of case?

 8                      MS. CLAUSEN:     Objection, relevance.

 9                      THE COURT:     Sustained.

10       Q.      (BY MR. LERMA)      Were you present during the

11   blood draw?

12       A.      No, sir.

13       Q.      In fact you didn't participate in that, did

14   you, sir?

15       A.      No, sir.

16       Q.      So that your only participation was that you

17   interrogated him and you videotaped the interrogation?

18       A.      Yes, sir.

19       Q.      And all during this time Mr. Armendariz was

20   under arrest?

21       A.      Yes, sir, he was detained.

22       Q.      Was he under arrest?

23       A.      Yes.

24                      MR. LERMA:     That's all I have, Your Honor.

25                      THE COURT:     Any other questions?

              NATALIE A. MARTINEZ; OFFICIAL COURT REPORTER
                  409TH DISTRICT COURT; 500 E. SAN ANTONIO, RM. 459
                         EL PASO, TX 79901    (915) 834-8209
                                                                             44


 1   STATE OF TEXAS                     )

 2   COUNTY OF EL PASO                  )

 3

 4        I, Natalie A. Martinez, Official Court Reporter in

 5   and for the 409th District Court of El Paso County,

 6   State of Texas, do hereby certify that the above and

 7   foregoing contains a true and correct transcription of

 8   all portions of evidence and other proceedings requested

 9   in writing by counsel for the parties to be included in

10   this volume of the Reporter's Record, in the

11   above-styled and numbered cause, all of which occurred

12   in open court or in chambers and were reported by me.

13        I further certify that this Reporter's Record of

14   the proceedings truly and correctly reflects the

15   exhibits, if any, offered by the respective parties.

16        I further certify that the total cost for the

17   preparation of this Reporter's Record is $                    and was

18   paid/will be paid by                             .

19        WITNESS MY OFFICIAL HAND this the                  day of

20   _                   , 2013.

21

22

23
                          NATALIE MARTINEZ, Texas CSR# 8352
24                        409th District Court
                          El Paso, TX 79901 (915) 834-8209
25                        Expires: December 31, 2014

             NATALIE A. MARTINEZ; OFFICIAL COURT REPORTER
               409TH DISTRICT COURT; 500 E. SAN ANTONIO, RM. 459
                      EL PASO, TX 79901    (915) 834-8209
                        Exhibit D
Judgment and Opinion by the Court of Appeals, Eighth District




                          P a g e | 28
                                  COURT OF APPEALS
                               EIGHTH DISTRICT OF TEXAS
                                    EL PASO, TEXAS


 EMMANUEL ARMENDARIZ,                          §
                                                              No. 08-13-00125-CR
                  Appellant,                   §
                                                                 Appeal from the
 v.                                            §
                                                               409th District Court
 THE STATE OF TEXAS,                           §
                                                            of El Paso County, Texas
                  Appellee.                    §
                                                               (TC#20100D06116)
                                               §


                                      JUDGMENT

       The Court has considered this cause on the record and concludes there was no error in the

judgment. We therefore affirm the judgment of the court below. This decision shall be certified

below for observance.

       IT IS SO ORDERED THIS 8TH DAY OF MAY, 2015.


                                            STEVEN L. HUGHES, Justice

Before McClure, C.J., Rodriguez, and Hughes, JJ.
                                  COURT OF APPEALS
                               EIGHTH DISTRICT OF TEXAS
                                    EL PASO, TEXAS


 EMMANUEL ARMENDARIZ,                           §
                                                               No. 08-13-00125-CR
                             Appellant,         §
                                                                  Appeal from the
 v.                                             §
                                                                409th District Court
 THE STATE OF TEXAS,                            §
                                                             of El Paso County, Texas
                             Appellee.          §
                                                                (TC#20100D06116)
                                                §


                                          OPINION

       Appellant Emmanuel Armendariz pleaded guilty to a two-count indictment charging him

with injury to a child and manslaughter. The trial court sentenced Appellant to three years’

confinement for each count, to run concurrently. Appellant appeals the trial court’s refusal to

suppress his recorded statement. He asserts the trial court erroneously found that he was not in

custody at the time he provided his recorded statement, and complains the trial court failed to

conduct a totality-of-the-circumstances review and hold the State to its burden to prove he

effectively waived his rights. We conclude there is no reversible error and affirm.

                                         BACKGROUND

       Appellant picked up his two-year-old son from his mother-in-law before noon on August
27, 2010. After arriving home, Appellant forgot his son was in the truck and left him there while

he prepared for an upcoming trip to Las Vegas and ran some errands with his father-in-law.

Several hours later, Appellant discovered his son was still in the truck. The child had died. That

evening around 9 p.m., Appellant provided a video-recorded statement to the police.

       The trial court held a suppression hearing to determine, among other things, whether

Appellant’s recorded statement should be suppressed. Following the hearing, the trial court

entered findings of fact and conclusions of law, including a finding that when the police detective

met with Appellant to take his recorded statement, “at the time the defendant was not under arrest.”

The court entered a related conclusion of law stating: “The Court finds that [Appellant] was not

under arrest when he provided the recorded statement to Detective Varela.” Ultimately, the trial

court concluded “that Emmanuel Armendariz intentionally, knowingly and voluntarily waived his

rights when he provided the recorded statement to Detective Varela[,]” and that Appellant’s

recorded statement was voluntary and “complies with the provisions of Texas Code of Criminal

Procedure Section 38.22.”

                                          DISCUSSION

                                       Standard of Review

       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); Ramos v. State, 245 S.W.3d 410, 417–18

(Tex.Crim.App. 2008). In reviewing the trial court’s decision, we review the evidence in the light

most favorable to the trial court’s ruling. State v. Kelly, 204 S.W.3d 808, 818 (Tex.Crim.App.

2006). We afford almost total deference to a trial court’s determination of historical facts, but

review pure questions of law de novo. Alford v. State, 358 S.W.3d 647, 652 (Tex.Crim.App.


                                                 2
2012); see Montanez v. State, 195 S.W.3d 101, 109 (Tex.Crim.App. 2006). Likewise, we give

almost total deference to a trial court’s resolution of mixed questions of law and fact if those

questions turn on the credibility and demeanor of witnesses.        Alford, 358 S.W.3d at 652.

However, if credibility and demeanor are not necessary to the resolution of a mixed question of

law and fact, we review the question de novo. See id.; Young v. State, 283 S.W.3d 854, 873

(Tex.Crim.App. 2009).     This same deferential standard of review applies to a trial court’s

determination of historical facts, demeanor, and credibility even when that determination is based

on a video recording. State v. Duran, 396 S.W.3d 563, 570 (Tex.Crim.App. 2013). The trial

court’s ruling will be upheld if it is reasonably supported by the record and is correct under any

theory of law applicable to the case. Ramos, 245 S.W.3d at 418.

               Finding and Conclusion that Appellant was Not Under Arrest

       In Issue One, Appellant contends the trial court abused its discretion in finding and

concluding he was not under arrest when he gave his recorded statement.

       At the suppression hearing, Detective Varela of the Socorro Police Department testified

that Appellant was under arrest at the time he took Appellant’s recorded statement. Detective

Chavez of the El Paso Sheriff’s Department also testified that Appellant was under arrest at the

Socorro Police station when he first contacted Appellant. Moreover, Detective Chavez’s partner,

Detective Santibanez, testified Appellant was under arrest when he arrived at the Socorro Police

station after 9 p.m. Despite this testimony, the trial court entered a finding of fact that when

Detective Varela met with Appellant, he “was not under arrest,” and entered a conclusion of law

that Appellant “was not under arrest when he provided the recorded statement to Detective

Varela.” The trial court also concluded Appellant’s recorded statement was voluntary and


                                                3
complied with Article 38.22 of the Texas Code of Criminal Procedure.

                                              Analysis

       The State concedes the trial court’s legal conclusion that Appellant was “not under arrest”

has no basis in the record and is without support. We agree with the State there is no basis in the

record for the finding and conclusion that Appellant was not under arrest when he gave his

statement. Detectives Varela, Chavez, and Santibanez each testified that Appellant was under

arrest when they met with him.

       The State also argues, however, that the trial court’s erroneous finding is not dispositive; it

is merely entitled to no deference. We agree. Normally if the court’s findings are supported by

the record, we are not at liberty to disturb them, and we will only address whether the trial court

improperly applied the law to the facts. State v. Wood, 828 S.W.2d 471, 474 (Tex.App. – El Paso

1992, no pet.). When, however, a trial court’s findings are not supported by the record, we do not

defer to those findings. See Garcia v. State, 919 S.W.2d 370, 379 (Tex.Crim.App. 1994)

(deference not given to trial court’s suppression-hearing findings that were not supported by

record on appeal); Derichsweiler v. State, 301 S.W.3d 803, 812 (Tex.App. –Fort Worth 2009)

(trial court’s finding of fact after suppression hearing was not supported by the record and was not

entitled to deference), rev’d on other grounds, 348 S.W.3d 906 (Tex.Crim.App. 2011). Because

there is no evidence to support the trial court’s finding and conclusion that Appellant was not

under arrest at the time he provided his oral statement, we give the finding and conclusion no

deference.

       The real question then is the impact, if any, of this erroneous finding and conclusion.

Appellant’s reasoning is hard to follow in this regard, but it hinges on Article 38.22 and its


                                                 4
requirements.1 Appellant appears to contend that because Article 38.22 applies only to statements

made as a result of a custodial interrogation,2 the trial court’s finding and conclusion that he was

not under arrest at the time he gave his statement somehow conflict with the trial court’s

conclusion that his recorded statement was voluntary and complied with Article 38.22. Appellant

apparently asserts that this conflict somehow invalidates the trial court’s conclusion that he

knowingly and voluntarily waived his rights. On this basis, Appellant requests that we reverse

and reform the judgment.

         We are at a loss to see how the trial court’s determination had any effect on Appellant’s

rights. If Appellant was in custody, he was entitled to all the protections provided by Article

38.22, and his recorded statement was admissible only if it was made knowingly and voluntarily.

But, even if Appellant was not in custody, he was still entitled to a determination whether his

statement was voluntary, since the mandate in Article 38.22 that statements be voluntary applies to

both an accused’s custodial and noncustodial statements. Oursbourn v. State, 259 S.W.3d 159,

171 (Tex.Crim.App. 2008).

         In any event, we conclude that because the uncontroverted evidence establishes Appellant

was under arrest at the time of his statement, he was entitled to the Article 38.22 protections.

Consequently, there is no conflict with the trial court’s conclusion that Appellant’s recorded

statement was voluntary and complies with Article 38.22. Appellant is not entitled to reversal or

reformation of the judgment. We simply proceed to determine if the evidence supports the trial

1
  Article 38.22 provides that no oral statement of an accused made as a result of a custodial interrogation shall be
admissible against the accused in a criminal proceeding unless certain requirements have been satisfied, including that
prior to the statement, but during the recording, the accused is given his Miranda warnings and the accused knowingly,
intelligently, and voluntarily waives those rights. See TEX.CODE CRIM.PROC.ANN. art. 38.22, §§ 2(a), 3 (West Supp.
2014).
2
  Article 38.22 applies only to oral statements made as a result of a custodial interrogation. TEX.CODE CRIM.
PROC.ANN. art. 38.22, § 3; see also id. at § 5 (nothing in Article 38.22 precludes the admission of a statement “that
does not stem from custodial interrogation”).
                                                          5
court’s conclusion that Appellant’s statement was made voluntarily.

                         Knowing, Intelligent, and Voluntary Waiver

        In Issue Two, Appellant contends the trial court erroneously failed to consider the totality

of the circumstances in its review and to hold the State to its burden to prove he effectively waived

his rights.

        At the suppression hearing, Detective Varela testified he advised Appellant of his rights

during Appellant’s recorded statement, and that Appellant indicated that he understood his rights

and agreed to waive them. Detective Varela explained that he did not threaten or coerce

Appellant to provide a statement nor promise Appellant anything in return. Detective Varela

stated that Appellant did not appear to be under the influence of any drug or alcohol at the time of

his recorded statement, and that Appellant never asked for an attorney or that the interview be

stopped. Appellant was never denied the use of a restroom, or food, or cigarettes.

        Appellant’s recorded statement was admitted into evidence for purposes of the suppression

hearing. The recording shows Detective Varela informing Appellant he is going to read him his

rights and asking Appellant to inform him if he has any questions about his rights. In response,

Appellant nods his head up and down. Detective Varela then proceeds to inform Appellant of his

right to remain silent and that anything he says can be used against him, and the video shows

Appellant indicating his understanding of this right by nodding his head in assent and stating

“yeah.” When Varela informs Appellant of his right to counsel and to have counsel present

during questioning, Appellant interrupts and asks “What are you guys doing right now?”

Detective Varela explains they will soon be talking about the case but that now he is reading

Appellant his rights “so that that way you’ll know”; Appellant again interjects “But you guys are


                                                 6
going to start asking questions, right?” Appellant states, “I mean, there’s nothing wrong but I’m

just saying, I don’t want to say something that’s going to fuck my shit up.” Detective Varela

responds that he understands and explains “What I want to know is if you understand that right to

counsel.” Appellant nods his head up and down, and states “I understand.” Detective Varela

continues the warnings and informs Appellant of his right to have an attorney appointed prior to

questioning if Appellant is unable to afford an attorney. Appellant again affirmatively nods his

head up and down. When Detective Varela asks Appellant whether he understands that he can

stop the interview at any time if he decides to answer questions without an attorney, Appellant

nods his head up and down, puts his head in hands, and answers, “Yes, sir.” Finally, when

Appellant is asked whether he is making this statement “out of your own free will,” Appellant

again affirmatively nods his head up and down.

       Appellant then proceeds to respond to questions about the incident, often speaking in the

narrative for extended periods of time, so much so that Detective Varela at times informs

Appellant “I might stop and ask you some questions.” At one point, after speaking in the

narrative for a time, Appellant asks, “What do I do now?” The other officer in the room, Officer

Juarez, responds, “I can’t answer you that.” After another lengthy narrative from Appellant,

Officer Juarez explains: “We’ve . . . pretty much asked you whatever questions we needed to find

out. Is there something that you think we need to know . . . something that we haven’t asked?

Something you may want to say at this time?” Appellant shakes his head back and forth in the

negative, and the interview is concluded. The entire recorded interview lasted slightly under

fifteen minutes. During this time, Appellant never requested counsel and never asked that the

interview be stopped. During the interview, Appellant is seated and not restrained in any way.


                                                 7
Appellant and the officers speak in English, and on a few occasions, Appellant uses Spanish

terminology.

                               Limited Review of Video Recording

       We note that our review of the video recording in particular is somewhat limited because in

answering the issue of a knowing and voluntary waiver, we must analyze Detective Varela’s

demeanor in asking the questions and Appellant’s demeanor in answering those questions. The

trial court concluded from its review of the video recording that Appellant’s waiver was voluntary.

And we can assume the trial court concluded that there was nothing about Detective Varela’s tone

or manner that was so overbearing as to render Appellant’s statement involuntary. Further, we

can assume the trial court concluded that Appellant’s demeanor indicated that he understood what

was going on and knowingly and intelligently waived his rights. We are required to give almost

total deference to the trial court’s determination of demeanor even when that determination is

based on a video recording. See Duran, 396 S.W.3d at 570. Applying this “almost total

deference” standard, we conclude that the trial court did not abuse its discretion in finding and

concluding that Appellant’s statement was knowingly, intelligently, and voluntarily given.

                                             Analysis

       As a general rule, a determination whether a statement was voluntarily rendered is

analyzed by examining the totality of the circumstances. Arizona v. Fulminante, 499 U.S. 279,

285–86, 111 S.Ct. 1246, 1252, 113 L.Ed.2d 302 (1991); see Delao v. State, 235 S.W.3d 235, 239

(Tex.Crim.App. 2007). It is the State’s burden to show that a defendant knowingly, intelligently,

and voluntarily waived his rights under Miranda v. Arizona, 384 U.S. 436, 444-45, 86 S.Ct. 1602,




                                                8
1612, 16 L.Ed.2d 694 (1966), 3 and Article 38.22 of the Texas Code of Criminal Procedure.

Joseph v. State, 309 S.W.3d 20, 24 (Tex.Crim.App. 2010).

         In this regard, the Court of Criminal Appeals has reiterated “‘that neither a written nor an

oral express waiver is required”’ before a statement is admissible under the mandates of Article

38.22. Id. (quoting Watson v. State, 762 S.W.2d 591, 601 (Tex.Crim.App. 1988)); Barefield v.

State, 784 S.W.2d 38, 40-41 (Tex.Crim.App. 1989)(noting that the oral confession statute does not

require an “express verbal statement from an accused that he waives his rights prior to giving the

statement”), overruled on other grounds, Zimmerman v. State, 860 S.W.2d 89, 94 (Tex.Crim.App.

1993). Rather, a waiver of one’s Article 38.22 rights may be “‘inferred from the actions and

words of the person interrogated.’” Joseph, 309 S.W.3d at 24-25 (quoting North Carolina v.

Butler, 441 U.S. 369, 373, 99 S.Ct. 1755, 60 L.Ed.2d 286 (1979)). But that waiver must still be

knowingly, intelligently, and voluntarily made. Joseph, 309 S.W.3d at 25.

         In evaluating whether a waiver is knowingly, intelligently, and voluntarily made, we

employ a two-part test, asking: (1) whether the relinquishment of the right was voluntary by

determining whether it was the product of a free and deliberate choice rather than intimidation,

coercion, or deception; and (2) whether the waiver was made with full awareness of the nature of

the rights being abandoned and the consequences of the decision to abandon it. Id. at 25 (citing

Moran v. Burbine, 475 U.S. 412, 421, 106 S.Ct. 1135, 89 L.Ed.2d 410 (1986)). “Only if the

3
 “ Prior to any questioning, the person must be warned that he has a right to remain silent, that any statement he does
make may be used as evidence against him, and that he has a right to the presence of an attorney, either retained or
appointed. The defendant may waive effectuation of these rights, provided the waiver is made voluntarily, knowingly
and intelligently. If, however, he indicates in any manner and at any stage of the process that he wishes to consult
with an attorney before speaking there can be no questioning. Likewise, if the individual is alone and indicates in any
manner that he does not wish to be interrogated, the police may not question him. The mere fact that he may have
answered some questions or volunteered some statements on his own does not deprive him of the right to refrain from
answering any further inquiries until he has consulted with an attorney and thereafter consents to be questioned.”
Miranda, 384 U.S. at 444-45, 86 S.Ct. at 1612.

                                                          9
‘totality of the circumstances surrounding the interrogation’ reveal both an uncoerced choice and

the requisite level of comprehension may a court properly conclude that the Miranda rights have

been waived.” Moran, 475 U.S. at 421. In reviewing the totality of the circumstances, we may

consider the defendant’s background, experience, and conduct. Joseph, 309 S.W.3d at 25 (citing

Fare v. Michael C., 442 U.S. 707, 725, 99 S.Ct. 2560, 61 L.Ed.2d 197 (1979)).

       The totality of the circumstances surrounding the interrogation shows Appellant’s waiver

was voluntary. Appellant nodded in the affirmative when asked whether he was giving his

statement of his own free will. Immediately after Detective Varela informed Appellant of his

rights, Appellant repeatedly indicated that he understood those rights and immediately and

willingly participated in the fifteen-minute interrogation. In fact, Appellant was eager to tell his

story, forcing Detective Varela to advise Appellant he may have to interrupt Appellant to pose

questions. The recording shows that Appellant never asked to stop the interrogation. At the

suppression hearing, Detective Varela testified that he did not threaten or coerce Appellant’s

statement, nor promise anything to Appellant in return. Further, the record does not show any

evidence of intimidation or coercion, such as resorting to physical or psychological pressure to

elicit statements, or making promises that could have possibly jeopardized the voluntariness of

Appellant’s statement. The parties remained calm throughout the entire interrogation process,

and Appellant freely explained the events of the day, how he found his son, and why he thought he

had forgotten about his son in his truck.

       We also conclude that the totality of the circumstances demonstrates Appellant’s waiver

was made with full awareness of both the nature of the rights being abandoned and the

consequences of the decision to abandon them. Appellant was given all the required warnings


                                                10
mandated by Article 38.22, including that Appellant was not required to say anything and could

stop the interview at any time, and after each question Appellant was asked if he understood his

rights. Appellant consistently answered in the affirmative, either by nodding his head up and

down or through an affirmative statement indicating his understanding. Appellant then freely

answered all the questions posed, and provided extensive narratives on occasion without any

prompting for him to do so. With the exception of a few Spanish terms uttered by Appellant, all

questions, answers, and narratives were stated in English.

       As the Court of Criminal Appeals noted in Joseph, “[t]he warnings read to Appellant made

him fully aware of the rights set forth in Miranda and Article 38.22, as well as the consequences of

abandoning those rights.” Joseph, 309 S.W.3d at 27 (citations omitted). By indicating his

understanding of the rights and then freely answering the questions without ever asking the

interview to cease, Appellant’s conduct undoubtedly demonstrated his awareness of his rights and

his knowing waiver of those rights. Based on the totality of the circumstances, the trial court

could reasonably infer a knowing waiver from Appellant’s words and actions.               Both the

testimony at the suppression hearing and the recorded interview establish that Appellant

knowingly, intelligently, and voluntarily waived his rights.

       Appellant contends the trial court did not conduct a totality-of-the-circumstances review

and asserts that the trial court did not enter a proper finding. We observe, however, that the trial

court indicated it was going to review the recorded interrogation carefully and then included

among its legal conclusions “that Emmanuel Armendariz intentionally, knowingly and voluntarily

waived his rights when he provided the recorded statement to Detective Varela[,]” and “that the

statement made by Emmanuel Armendariz was voluntary and complies with the provisions of


                                                11
Texas Code of Criminal Procedure Section 38.22.” This demonstrates that in making its decision,

the trial court considered both the testimony from the hearing and the content of Appellant’s

recorded statement.

       The recorded statement contained the requisite warnings informing Appellant of his rights,

and the record demonstrates that Appellant knowingly, intelligently, and voluntarily waived those

rights. Consequently, Appellant’s recorded statement was admissible, and the trial court did not

abuse its discretion in denying Appellant’s motion to suppress.       Issues One and Two are

overruled.

                                        CONCLUSION

       The trial court’s judgment is affirmed.


                                             STEVEN L. HUGHES, Justice
May 8, 2015

Before McClure, C.J., Rodriguez, and Hughes, JJ.

(Do Not Publish)




                                                 12
              Exhibit E
Judgment and Conviction by the trial court




                P a g e | 29
                                                        CASE No. 201 OOD06116                       couNT I of II
                                                                INCIDENT NO.ITRN: 9051930852


                                                                                     §
                                                                                                   IN THE 409TH JUDICIAL DISTRICT
THE STATE OF TEXAS
                                                                                                   COURT
                                                                                     §
v.                                                                                   §
                                                                                     §
Armendariz, Emmanuel                                                                 §             EL PASO COUNTY, TEXAS
                                                                                     §
STATE ID No.: 07021556                                                               §

          JUDGMENT OF CONVICTION BY COURT-WAIVER OF JURY TRIAL
                                                                                      Date Judgment
Judge Presiding:           HON. SAM              MEDRANO JR.                                                       04/12/lS
                                                                                      Entered:
                                                                                      Attorney for
Attorney for State:        PENNY HAMILTON                                             Defendant:                   EDUARDO LERMA
Offen&e for which Defendant Convicted:
INJ CHILD/ELDERLY/DISABLED RECKLESS BIIMENTAL
Charging Instrument:                                                               Statute for Offense:
INDICTMENT                                                                         22.04 (E) PC
Date of Offense:
08/27/10
Degree of Offen~~e:                                                                Plea to Offense:                          Findings on Deadly Weapon:
2nd Degree Felony                                                                  GUILTY                                    N/A
Terms of Plea Bargain:
STATE'S RECOMMENDATION
Plea to 1'' Enhancement                                                       Plea to 2nd Enhancement/Habitual
Paragraph:                                       N/A                          Paragraph:                                          N/A
Findings on 1•1 Enhancement                                                   Findings on 2•d
Paragraph:                                       N/A                          Enhancement/Habitual Paragr~tph :                   N/A
Date Sentence Imposed:           04125/lS                                     Date Sentence to Commence:             04125/13
Punishment and Place
of Confinement:
                                 THREE (3) YEARS INSTITUTIONAL DIVISION, TDCJ
                                                                THIS SENTENCE SHALL RUN N/A
            D SENTENCE OF CONFINEMENT SUSPENDED, DEFENDANT PLACED ON COMMUNITY SUPERVISION FOR
                                                                                   NIA.
Fjno:                                            Court Costs:         Restitution;            Restitution Payable to;
N/A                                                   $N/A
                                                  $231.00    0 VICTIM (see below) 0 AGENCY/AGENT (see below)
Sex Offender Registration Requirements do not apply to the Defendant. TEX. CODE CittM. PROC. chapter 62
The age of the victim at the time of the offense was N/A_
                   If Defendant is to serve sentence in TDCJ, onter incar-.E!ration pl!rio<H in chronologie&[ order.
Timo                From 08128110 to 08128110 From 06/13/11 to 06/24/11
Credited:           ~ndant        i3 to serve sentence ip county jail or i11 given credit towM.II...fiM and C0318. enter d!IVR credited below.
                    N/A DAYS                   NOTES: N/A
All partillelll illfolnUition, uame•   a~~od   ...uomeuh iud lc:ated above are incorporated !11to \be la PJUAI'e of tho j11d1'ntent belo,. by retorea<:e.
          This cause was called for trial in El Paso County, Texas. The State appeared by her District Attorney_
          Counsel/ Waiver o{ Counsel be!ect one)
l2l   Defendant appeared in person with CounseL
0     Defendant knowingly, intelligently, and voluntarily waived the right to representation by counsel in writing in open court.
r - - - -- - - - - - - --            - --     -   -   ------ -                -   -   -




              Both parties announced ready for trial. Defendant waived the right of trial by jury and entered the plea indicated above.
    The Col.lrt then admonished Defendant as required by law. It appeared to the Court that Defendant was mentally competent to
    etand trial, made the plea freely and voluntarily, and was aware of the consequences of this plea. The Court received the plea and
    entered it of record. Having heard the evidence submitted, the Court found Defendant guilty of the offense indicated above. In the
    presence of Defendant, the Court pronounced sentence against Defendant.
              The Court FINDs Defendant committed the above offense and ORDERS. ADJUDGES AND DECREES that Defendant is
    GUlLTY of the above offense. The Court FINDS thtt Presentence lnvesti,ation, if eo ordered, was done according to the applicable
    provisions of TEX. CODE CR!M. PROC. art. 42.12 § 9.
              The Court ORDERS Defendant punished as indicated above. The Court O:aDERS Defendant to pay all fine11, court costs, alld
    restitution as indicated above.
              Punishment Options (select one)
    f2l Confinement in State Jail or Institutional Division. The Court ORDERS tbe authorized agent of the State of Texas or the
    Sheriff of this County to ta.lte, safely convey, and deliver Defendant to the Director, lnstitutionaJ Div!aion, TDCJ. The Court
     ORDERS Defendant to be confined for the period and in the manner indicated above. The Court ORDERS Defendant remanded to the
    custody of the Sheriff of thie county until the Sheriff can obey the directions of this sentence. The Court ORDBRS that upon release
     from confinement, Defendant proceed immediately to the Institutional Dlvisjon, TDCJ. Once there, the Court ORDERS Defendant
     to pay, or make arranrements to pay, any remaining unpaid fines, court costa, and restitution as ordered by the Court above.
    0    County Jail-Confinement I Confinement in Lieu of Payment. The Court OBDERB Defendant immediately committed to
     the custody of the Sheriff of El Paso County, Texas on the date the sentence is to commence. Defendant shall be confined in the El
     Pat~o County Detention Facility for the period indicated above. The Court 01\DBRS that upon release from confinement, Defendant
     shall proceed immediately to the El Paso County Detention Facility. Once there, the Court ORDERS Defendant to pay, or make
     arrangements to pay, any remaining unpaid fines, court costs, and restitution as ordered by the Court above.
     0 Fine Only Payment. The punishment assesaed against Defendant is for a JI'INE ONLY. The Court ORDERS Defendant to proceed
     immediately to the Office of the El Paso County Collectiona Department. Once there, the Court ORDERS Defendant to pay or
     make arrangements to pay all fines and court costs as ordered by the Court in thia cause.
              Executfog I Suspension of Sentence (select one)
    l:8l The Court ORDERS Defendant's sentence EXECU'l'ED.
     0 The Court ORDERS Defendant's ~ntence of confinement SUSPENDED. The Court ORDERS Defendant placed on community
     supervision for the adjudged period (above) so long as Defendant abides by and does not violate the tsrms and conditions of
     community supervision. The order setting forth the terms and conditions of community supervision is incorporated into this
    judgment by reference.
              The Court ORDERS that Defendant is given credit noted above on this sentence for the time spent incarcerated.
                                 Furthermore. the following special finding!! or orders apply;

    Counts I and J1 to run concurrent.



    Signed and entered on 04/              X/ I 2013

                                                                        JUDGE PRESIDING


    Right Thumbprint
                                                                        Clerk: FWsemary Cru>:




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ie                                             CASE NO. 20100006116                      COUNT II     ofll
                                                             INCIDENT NO.ITRN: N/A

                                                                                         lN THE 409TH JUDICIAL DISTRICT
 THE STATE OF TEXAS                                                        §
                                                                                         COURT
                                                                           §
 v.                                                                        §
                                                                           §
 Armendariz, Emmanuel                                                      §             EL PASO COUNTY, TExAS
                                                                           §
 STAT~   lD NO.: 07021556                                                  §

          JUDGMENT OF CONVICTION BY COURT-WAIVER OF JURY TRIAL
                                                                             Date Judcment
 Judge Presiding:          HoN. SAM       MEDRANO JR.                                                   04/12118
                                                                             Entered:
                                                                             Attorney for
 Attorney for State:       PENNY HAMILTON                                    Defendant:
                                                                                                        EDUARDO LERMA
 Offen§e for which Defepdant Convicted:
 MANSLAUGHTER
 Chaminc Instrument;                                                      Statute for Otfen88;
 INDICTMENT                                                               19.04 PC
 Date of Offense:
 08/27/10
 Degrt?e of Offense;                                                      Plea to Offen!H!:                          Findinca on Deadly Weapon:
 2nd Degree Felony                                                        GUILTY                                     N/A
 Torms of Plea Bargain:
 STATE'S RECOMMENDATION
 Plea to 1" Enhancement                                              Plea to 2"d Enhancement/Habitual
 Parap-aph:                               N/A                        ParaJI'apb:                                         N/A
 Findings on 1" Enhancemeot                                          Findincs on 2•d
 Paragraph:                               NIA                        EnhancementJHabitual ParaiJ'aph:                    N/A
 Date Sentence Imposed:         04/26/13                             Date Sentence to Commence:           04125/13
 Purushment and Place
 of Confinement:
                                THREE (3) YEARS INSTITUTIONAL DMSION, TDCJ
                                                        THIS SENTENCE SHALL RUN N/A
             0   SENTENCE OF CONFiNEMENT SUSPENDED. DEFENDANT PLACED ON COMMUNITY SUPERVISION FOR
                                                                          N/A.
 Fine:                                    Court Costa;         Restitution Payable t.o:
                                                              Restitution:
 N/A                            $231.00       $N/A             0 VICTIM (see below) 0 AGENCY/AGENT (see bolow)
 Sex Offender Reaistrat.lon Requirement& do not apply to the Defendant. TEX. ConK CRIM. PROC. chapter 62
 The age of the victim at the time of the offense wae NIA.
                 If Def~tndi!Qt je to !I!!Tve Mntence in TQCJ. enter incarcerMtjun neriode in chronolociC!II order
                   From 08/28/10 to 08/28110 From 06/13/11 to 06/24/11
 Time
 Credited:         If Defendant "   to aerve snwm:e jn county jaU or ja ¥inn cl'l!djt toward fine and coKtv   enter doya credited below.
                   N/A DAYS            NOTES: N/A
 All p•rtlneDt iaformation,narnee otnd ......,.,.au indicated above are incorporated into thelaa&ua&e ohhejudrmeat below by refuenc~.
       This cause was called for trial in El Paso County, Texu. The State appeared by her District Attorney.
       Counsel I Walyer of Counsel (solgqt one)
 ~ Defendant appeared in person with Counsel.
 0 Defendant knowinJiy, intellicently, and voluntarily wajved the right to representation by countcl in writing in open court.
                       · - - - -·- -·- - - ·------·-




          Both parties announced ready for trial. Defendant waived the right of trial by jury and entered the plea indicated above.
The Court then admonished Defendant as required by law. It appeared to the Court that Defendant was mentally competent to
stand trial, made the plea freely and voluntarily, and waa aware of the consequences of this plea. The Court received the plea and
entered it of record . Raving heard the evidence submitted, the Court found Defendant guilty ofthe offense indicated above. In the
presence of Defendant, the Court pronounced sentence against Defendant.
         The Court FINDS Defendant committed the above offense and ORDERS, ADJUDGES AND DECREES that Defendant is
GUlLTY of the above offense. The Court FINDS the Presentence Investigation, if so ordered, waa done accordinc to the applicable
provisions of TEX. CoDE CRIM. PRo c. art. 42.12 § 9.
         The Court ORDERS Defendant punished as indicated above. The Court ORDERS Defendant to pay all fines, court costa, and
restitution as indicated above.
         Punithment Options (seJect one)
~ Confinement in State Jail or Institutional Division. The Court ORDERS the authorized &ient of the State of Texas or the
Sheriff of this County to take, safely convey, and deliver Defendant to the Director, Institutional Division, TDCJ. The Court
ORDERS Defendant to be confined for the period and in the manner i11dicated above. The Court ORDIIKS Defendant remanded to the
custody of the Sheriff of this county until the She-riff can obey the directions of thia sentence. The Court O&DERS that upon release
from confinement, Defendant proceed immediately to the Institutional Division, TDCJ. Once there, the Court ORDERS Defendant
to pay, or make arranrements to pay, any remaining unpaid fines, court costs, and restitution as ordered by the Court above.
0 County Jail-Confinement I Confinement in Lieu of Payment. The Court ORDERS Defendant immediately committed to
the cuetody of the Sheriff of El Pa.o County, Texu on the date the sentence is to commence. Defendant shall be confined in the El
Paso County Detention Facility for the period indicated above. The Court ORDERS that upon release from confinement, Defendant
shall proceed immediately to the El Paso County Detention Facility, Once there, the Court 0Rl>ERS Defendant to pay, or make
arrangements to pay, any remaining unpaid fines, court costs, and restitution as ordered by the Court above.
0 Fine Only Payment. The punishment assessed against Defendant is for a FINE ONLY. The Court ORDERS Defendant to proceed
immediately to the Office of the El Paso County Collections Department. Once there, the Court ORDERS Defendant to pay or
make arrangement& to pay all fines and court costs as ordered by the Court in this cause.
         Execution I Susvension of Sentence (select one)
1:81 The Court ORDERS Defendant's sentence EXECUTED.
0 The Court ORDERS Defendant's sentence of confinement SUSPENDED. The Court ORDERS Defendant placed on community
supervision for the adjudged period (above) so long as Defendant abides by and does not violate the terms and conditions of
community supervision. The order setting forth the terms and conditions of community supervision is incorporated into this
judgment by reference.
         The Court ORDERS that Defendant is riven credit noted above on this sentence fo.r the time spent incarcerated.
                             Furthermore. the followin& special findings or orders apply:




Signed and entered on 04/ '2? I 2013


                                                                    JUDGE PRESlDING



Right Thumbprint
                                                                    Clerk: Rosemary Cruz
	  

	  

	  

	  

	  

	  

	  

                             	  

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