                       NUMBER 13-10-00585-CR

                          COURT OF APPEALS

                 THIRTEENTH DISTRICT OF TEXAS

                   CORPUS CHRISTI - EDINBURG

JOSUE GONZALEZ RODRIGUEZ,                                            Appellant,

                                       v.

THE STATE OF TEXAS,                                                   Appellee.


                  On appeal from the 430th District Court
                        of Hidalgo County, Texas.


                       MEMORANDUM OPINION
        Before Chief Justice Valdez and Justices Garza and Vela
              Memorandum Opinion by Justice Rose Vela
      Appellant, Josue Gonzalez Rodriguez, was indicted for the capital murder of

Ruben Varela. See TEX. PENAL CODE ANN. § 19.03(a)(3) (West Supp. 2011). He filed a
motion to suppress his written statement as well as the audio recording thereof.

Following a hearing, the trial court suppressed the audio recording but refused to

suppress his written statement. A jury convicted him of the offense. Because the State

did not seek the death penalty, the trial court assessed punishment at life imprisonment.

See id. § 12.31(a)(2) (West 2011). By one issue, appellant asserts the trial court erred

by refusing to suppress his written statement because he did not make a knowing,

intelligent, and voluntary waiver of his rights under the Fifth Amendment to the United

States Constitution, Article 1, Sections 9, 10, and 19 of the Texas Constitution, and Article

38.23 of the Texas Code of Criminal Procedure. We affirm.

                                      I. MOTION TO SUPPRESS

       During the suppression hearing, the State called Corporals Ted Rodriguez and

Manuel Casas to testify about the procedures they followed while obtaining appellant's

written statement. Both officers are investigators for the Mission Police Department.

The defense did not call any witnesses to testify at the suppression hearing.

       Corporal Rodriguez, who is fluent in Spanish, testified he and Corporal Casas

interrogated appellant "in the sergeant's office" at the Mission Police Department. He

stated appellant spoke Spanish and "understood English."              Before speaking, to

appellant, the officers advised him of his Miranda 1 warnings. When the prosecutor

asked Corporal Rodriguez, "Did the defendant indicate to you that he understood each of

these rights?", he said, "He understood his rights. He stated that he did." When asked

how appellant indicated he understood all of his rights, Corporal Rodriguez said, "[T]he


       1
           See Miranda v. Arizona, 384 U.S. 436 (1966).

                                                   2
interview was taken by both Corporal Casas and I. We read the rights one by one while

I was there. He also acknowledged the rights, and understood the rights by signing at

the bottom of the Miranda Rights Form." When the prosecutor asked him, "Was there

any question in your mind as to whether the defendant understood his rights?", he said,

"No. He understood perfectly."

       Corporal Rodriguez identified State's exhibit fifty-two2 as the Spanish-language

Miranda rights form, which he and Corporal Casas used during appellant's interrogation.

This preprinted form shows that appellant's initials are printed on each of the lines that

precede each warning. Corporal Rodriguez testified that after appellant was advised of

all of his rights, he agreed to waive them and provide a written statement.

       On cross-examination, Corporal Rodriguez explained that Corporal Casas read

the Miranda warnings (that appear on exhibit fifty-two) to appellant in Spanish. He

testified appellant "read the bottom portion [of exhibit fifty-two] himself saying that the

portion that indicates that he understood the [Miranda] rights and he was willing to talk to

us."

       Corporal Casas testified he read appellant all of the Miranda warnings from exhibit

fifty-two. Afterwards, he gave exhibit fifty-two to appellant, who "started reading them on

his own." Corporal Casas stated appellant "really concentrated on what he was reading.

He was being very careful." When defense counsel asked him, "Do you recall indicating

. . . where he [appellant] could sign to indicate that you had read these rights to him?", he

said, "Yes, I did. Because what I do, I read right where it says . . . 'Su firma significa que

entiende los derechos.' And I tell him this signature signifies that you understood these
       2
           The trial court admitted State's exhibit fifty-two into evidence during the suppression hearing.
                                                      3
rights."    Appellant signed exhibit fifty-two.            When defense counsel asked Corporal

Casas, "[D]id he [appellant] indicate to you not only that he had read them [Miranda

warnings], but that he had understood them?", he said, "Yes. . . . He acknowledged that

he understood them." When defense counsel asked him, "[D]id he [appellant] initial by

each and every one of those Miranda Warnings?", he said, "Yes, he did." When asked,

"[A]fter the defendant was read his Miranda Warnings and indicated that he understood

them, did he then waive each and every one of those rights?", he said, "Correct. Yes."

        After hearing argument from both sides, the trial court denied the motion to

suppress appellant's written statement. The trial judge orally pronounced his findings of

fact and conclusions of law.

                                              II. DISCUSSION

        In his sole issue for review, appellant contends the trial court erred by refusing to

suppress his written statement because he did not make a knowing, intelligent, and

voluntary waiver of his rights under the Fifth Amendment to the United States

Constitution, Article 1, Sections 9, 10, and 19 of the Texas Constitution, 3 and Article

38.23 of the Texas Code of Criminal Procedure.4 In its findings of fact, the trial court

orally pronounced, in relevant part, that appellant, prior to making the written statement,


        3
           Although appellant complains that his written statement was made in violation of the Texas
Constitution, he makes no further arguments regarding what protections the Texas Constitution provides
that differ from those of the United States Constitution; therefore we will not address that portion of his
issue. See TEX. R. APP. P. 38.1(i); see also Johnson v. State, 853 S.W.2d 527, 533 (Tex. Crim. App. 1992)
(declining to address appellant's arguments concerning his state-constitutional rights when appellant did
not make a distinction between the United States Constitution and the Texas Constitution).
        4
          Article 38.23 of the Texas Code of Criminal Procedure provides, in relevant part: "No evidence
obtained by an officer or other person in violation of any provisions of the Constitution or laws of the State of
Texas, or of the Constitution or laws of the United States of America, shall be admitted in evidence against
the accused on the trial of any criminal case." TEX. CODE CRIM. PROC. ANN. art. 38.23(a) (West 2005).
                                                       4
received Miranda warnings and that those warnings were provided to him in Spanish and

in English as found in exhibits fifty-two and fifty-three, respectively. In its conclusions of

law, the trial court orally pronounced, in relevant part, that appellant, prior to and during

the making of his statement, knowingly, intelligently and voluntarily waived his Miranda

rights, and the rights set out in the warnings and proceeded to make the statement freely,

knowingly, and voluntarily without undue influence, without duress, and without anybody

forcing him to do so.

1. Standard of Review for Suppression Motions

       "When reviewing a trial judge's ruling on a motion to suppress, we view all of the

evidence in the light most favorable to the trial judge's ruling." Gonzales v. State, 369

S.W.3d 851, 854 (Tex. Crim. App. 2012) (citing State v. Garcia-Cantu, 253 S.W.3d 236,

241 (Tex. Crim. App. 2008)).         "When supported by the record, the trial judge's

determination of historical facts are afforded almost total deference." Id. (citing Guzman

v. State, 955 S.W.2d 85, 89 (Tex. Crim. App. 1997)). "Furthermore, 'courts afford the

prevailing party the strongest legitimate view of the evidence and all reasonable

inferences that may be drawn from that evidence.'" Id. (quoting State v. Woodard, 341

S.W.3d 404, 410 (Tex. Crim. App. 2011)). "Almost total deference is afforded to a trial

judge's ruling on mixed questions of law and fact that depend upon an evaluation of

credibility and demeanor." Id. (citing Guzman, 955 S.W.2d at 89). "But when mixed

questions of law and fact do not depend on evaluation of credibility and demeanor, we

review the trial judge's ruling de novo." Id. (citing Guzman, 955 S.W.2d at 89). "All

purely legal questions are reviewed de novo." Id. (citing Woodard, 341 S.W.3d at 410;


                                              5
Kothe v. State, 152 S.W.3d 54, 62–63 (Tex. Crim. App. 2004).

2. Whether Corporals Rodriguez and Casas Engaged in Police Overreaching

      A confession is involuntary under the Due Process Clause "only if there was

official, coercive conduct of such a nature that any statement obtained thereby was

unlikely to have been the product of an essentially free and unconstrained choice by its

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

that courts have found involuntary under the Due Process Clause involve the crucial

element of police overreaching and involve fact scenarios in which the suspect was

subjected to threats, physical abuse, or extended periods of interrogation without rest or

nourishment. See Oursbourn v. State, 259 S.W.3d 159, 170–71 (Tex. Crim. App. 2008)

(collecting cases). Absent coercive police activity, a statement is not involuntary within

the meaning of the Due Process Clause even if it was not the product of a meaningful

choice by the maker. Id. at 170 (citing Colorado v. Connelly, 479 U.S. 157 (1986)).

      Article 38.22 of the Texas Code of Criminal Procedure is likewise aimed at

protecting a suspect from police overreaching. Id. at 172. Specifically, Article 38.22,

Section 6 provides that only voluntary statements may be admitted in evidence. See

TEX. CODE CRIM. PROC. ANN. art. 38.22, § 6 (West 2005). This statute works in tandem

with Article 38.21 of the Texas Code of Criminal Procedure, which provides that an

accused's statement may be used in evidence against him "if it appears that the same

was freely and voluntarily made without coercion or persuasion, under the rules hereafter

prescribed." Id. § 38.21. Claims of involuntariness under these statutes can be, but

need not be, predicated on police overreaching of the sort required under due-process


                                            6
analysis. Oursbourn, 259 S.W.3d at 172. Under Articles 38.21 and 38.22, Section 6,

we may consider, in addition to any allegedly coercive police conduct, factors such as the

suspect's youth, intoxication, mental retardation, or other disability that would not raise a

federal due process claim. Id. at 172–73.

       "'Voluntariness' under both constitutional and state law doctrines is to be

measured according to the totality of the circumstances.'" Smith v. State, 779 S.W.2d

417, 427 (Tex. Crim. App. 1989). In the instant case, Corporal Rodriguez testified that

during the interrogation, appellant was "coherent and able to communicate" and was not

under the influence of either alcohol or narcotics. He bought appellant "a drink" and

some burritos, which appellant ate during the interrogation. State's exhibit fifty-three,

which is appellant's written statement, shows that appellant was twenty-two years old at

the time he gave the statement. Corporal Rodriguez testified appellant was not denied

"any basic necessities" and said that during the interrogation, appellant was offered

restroom breaks and took at least one break.

       He also testified that during the interrogation, appellant did not ask for an attorney

and did not ask to terminate the interview. When asked if appellant was "promised

anything, or threatened, coerced" into giving the statement, he said, "No. He was never

coerced into anything." He testified appellant was never "directly or indirectly promised

anything in exchange for the statement[.]" He testified he removed appellant's handcuffs

before the interrogation started. When defense counsel asked Corporal Rodriguez,

"And during this whole interview did you have your service weapon on?", he replied, "I

was wearing a sports coat . . . with my service weapon." He said that he and Corporal


                                             7
Casas "were dressed the same way."

           Corporal Casas testified appellant never asked to terminate the interview, and he

was "given the right to basic necessities such as restroom break, water—things like

that[.]"     According to Corporal Casas and Corporal Rodriguez, neither promised

appellant anything, directly or indirectly, in exchange for his written statement. Corporal

Casas testified he never threatened or coerced appellant into giving a statement. He

testified appellant was neither handcuffed nor shackled during the interrogation. He said

the interrogation lasted from about 9:00 p.m. to shortly before midnight.

           Viewing the evidence in the light most favorable to the trial court's finding, we find

nothing in this record that could reasonably be considered police overreaching of the sort

that would render appellant's statement involuntary in either the due process or the

statutory sense. Therefore, we hold appellant's written statement was not the product of

police overreaching and the admission of the statement did not violate his due process

rights. See Oursbourn, 259 S.W.3d at 170, 172–73. Accordingly, the trial court did not

abuse its discretion in resolving this issue in favor of the State.

3. Whether Appellant Knowingly, Intelligently, and Voluntarily Waived His Rights

           Article 38.22 of the Texas Code of Criminal Procedure forbids the use of oral

statements made as a result of custodial interrogation unless, inter alia, an electronic

recording is made of the statement, "Miranda warnings are given, and the accused

knowingly, intelligently, and voluntarily waives any rights set out in the warnings." Turner

v. State, 252 S.W.3d 571, 583 (Tex. App.—Houston [14th Dist.] 2008, pet. ref'd); see TEX.

CODE CRIM. PROC. ANN. art. 38.22, § 3(a)(1)–(2). An inquiry into the waiver of Miranda


                                                 8
rights "'has two distinct dimensions.'" Ripkowski v. State, 61 S.W.3d 378, 384 (Tex.

Crim. App. 2001) (quoting Colorado v. Spring, 479 U.S. 564, 573 (1987)). First, the

waiver must be "'voluntary in the sense that it was the product of a free and deliberate

choice rather than intimidation, coercion, or deception.'" Id. (quoting Spring, 479 U.S. at

573). Second, the suspect must have made the waiver "'with a full awareness both of

the nature of the right being abandoned and the consequences of the decision to

abandon it.'" Id. (quoting Spring, 479 U.S. at 573). The "Constitution does not require

that a criminal suspect know and understand every possible consequence of a waiver of

the Fifth Amendment privilege." Spring, 479 U.S. at 574. It is enough that a "suspect

knows that he may choose not to talk to law enforcement officers, to talk only with counsel

present, or to discontinue talking at any time." Id.

       Under Articles 38.21 and 38.22 and their predecessors, fact scenarios that can

raise a state-law claim of involuntariness include the following: (1) the suspect was ill

and on medication and that fact may have rendered his confession involuntary; (2) the

suspect was mentally retarded and may not have knowingly, intelligently and voluntarily

waived his rights; (3) the suspect lacked the mental capacity to understand his rights; (4)

the suspect was intoxicated, and he "did not know what he was signing"; (5) the suspect

was confronted by the brother-in-law of his murder victim and beaten; and (6) "the

suspect was returned to the store he broke into 'for questioning by several'" armed

persons. Oursbourn, 259 S.W.3d at 172–73.

       As the sole judge of the credibility of the evidence and witnesses, the trial court had

the discretion to believe the testimony of Corporals Rodriguez and Casas that appellant


                                              9
understood his rights and waived them prior to making his written statement. Their

testimony established that, before appellant made his written statement, Corporal Casas

read him the Miranda warnings in Spanish from exhibit fifty-two, and that appellant

indicated to Corporals Rodriguez and Casas that he understood his rights. Appellant

then proceeded to provide the written statement. The testimony also shows appellant:

(1) was coherent; (2) understood what Corporals Rodriguez and Casas were saying to

him; (3) was thinking clearly; (4) wanted to talk to both corporals about the murder; (5)

was cooperative and not under the influence of either drugs or alcohol; and (6) never

asked to speak to an attorney or to terminate the interview. Moreover, the evidence

does not show that appellant could not understand his rights because he was ill or on

medication, mentally disabled, or lacked the mental capacity to understand his rights.

Thus, the record shows appellant knowingly, intelligently, and voluntarily waived his

rights. Accordingly, the trial court did not abuse its discretion in concluding appellant

knowingly, intelligently, and voluntarily waived his rights prior to making the written

statement.

4. Whether Appellant Waived His Miranda Rights

       Appellant argues no waiver of his Miranda rights occurred either expressly or

implicitly prior to his interrogation, which resulted in him providing a written confession to

the police. Article 38.22, Section 2 of the Texas Code of Criminal Procedure provides:

       No written statement made by an accused as a result of custodial interrogation is

admissible as evidence against him in any criminal proceeding unless it is shown on the

face of the statement that:


                                             10
      (a) the accused, prior to making the statement, either received from a
      magistrate the warning provided in Article 15.17 of this code or received
      from the person to whom the statement is made a warning that:

              (1) he has the right to remain silent and not make any statement at all
              and that any statement he makes may be used against him at his
              trial;

              (2) any statement he makes may be used as evidence against him in
              court;

              (3) he has the right to have a lawyer present to advise him prior to
              and during any questioning;

              (4) if he is unable to employ a lawyer, he has the right to have a
              lawyer appointed to advise him prior to and during any questioning;
              and

              (5) he has the right to terminate the interview at any time; and

      (b) the accused, prior to and during the making of the statement, knowingly,
      intelligently, and voluntarily waived the rights set out in the warning
      prescribed by Section (a) of this section.

TEX. CODE CRIM. PROC. ANN. art. 38.22, § 2(a), (b).

3. Analysis

      Corporal Rodriguez testified that after appellant was advised of all of his rights, he

agreed to waive them and provide a written statement. He identified State's exhibit

fifty-three as appellant's written statement. The Miranda warnings printed in English

appear at the top of this exhibit, and appellant's initials appear on each line preceding

each warning. Immediately following these warnings, the exhibit states: "You have

prior to and during the making of this statement knowingly, intelligently, and voluntarily

waived the rights set out in this warning."       Appellant's initials appear on the line

preceding this phrase. Concerning exhibit fifty-three, the prosecutor asked Corporal


                                            11
Rodriguez the following questions:

      Q.     Now with regard to State's Exhibit No. 53, is that the defendant's
             statement?

      A.     Yes, ma'am. That's the statement that we took from the defendant.

      Q.     Now at the top of the statement, also typed and with initials, are
             those the Miranda warnings again?

      A.     It does include the Miranda warnings once again.

      Q.     Did the defendant read those to himself or were they read to him?

      A.     Yes. They were read to him.

      Q.     And he indicated with his initials he understood?

      A.     Yes, sir.

      Q.     Is the defendant's signature at the end of that statement?

      A.     That is correct.

      Even assuming appellant failed to expressly waive his rights, we find he implicitly

waived them. In Leza v. State, the court of criminal appeals stated "we have consistently

held that waiver of Article 38.22 rights 'may be inferred from actions and words of the

person interrogated.'" 351 S.W.3d 344, 353 (Tex. Crim. App. 2011) (quoting Barfield v.

State, 784 S.W.2d 38, 41 (Tex. Crim. App. 1989)); see also Etheridge v. State, 903

S.W.2d 1, 16–17 (Tex. Crim. App. 1994) (expressly declining to overrule Barfield, and

finding an implied waiver when the accused was informed of his rights, declared he

understood them, and agreed to continue with questioning); Rocha v. State, 16 S.W.3d 1,

12 (Tex. Crim. App. 2000) (following Etheridge). In Leza, the court of criminal appeals

explained that "[w]hile we have also said that such implied waivers are not to be


                                           12
preferred,[5] we have acknowledged that it is within a trial court's discretion to rely upon

an implied waiver whenever the totality of the circumstances, as reflected by the

recording of the oral statement, supports it." Leza, 351 S.W.3d at 353 (citing Joseph v.

State, 309 S.W.3d 20, 25–26 n.7 (Tex. Crim. App. 2010)). "This construction of the

statute, although it has been criticized by some,[6] has the virtue of being consistent with

the [United States] Supreme Court's most recent pronouncement with respect to what

may serve to constitute an implied waiver of the Fifth Amendment right to remain silent."

Id. at 353–54 (citing Berghuis v. Thompkins, 130 S.Ct. 2250 (2010) (stating when "the

prosecution shows that a Miranda warning was given and that it was understood by the

accused, an accused's uncoerced statement establishes an implied waiver of the right to

remain silent").

       In the instant case, the totality of the circumstances show appellant: (1) placed

his initials next to each of the rights and warnings required by article 38.22, section 2(a);

and (2) placed his initials next to the statement, which read: "You have prior to and

during the making of this statement knowingly, intelligently, and voluntarily waived the

rights set out in this warning."          In addition, when the prosecutor asked Corporal

Rodriguez, "Did the defendant indicate to you that he understood each of these rights

[contained in exhibit fifty-two]?", he said, "He understood his rights. He stated that he


       5
           Watson v. State, 762 S.W.2d 591, 601 (Tex. Crim. App. 1988).
       6
           See, e.g., George E. Dix & John M. Schmolesky, 41 TEXAS PRACTICE: CRIMINAL
PRACTICE AND PROCEDURE § 16;96 (3d ed. 2011), at 136–7 (observing that our case law "assumes
that the rule that waiver may be implied means that an implied waiver is proved by evidence that the
accused was admonished of his rights and then made the statement without affirmatively demanding that
those rights be respected. This simply cannot be the case. At a bare minimum, an implied waiver . . .
should require that the accused, after being admonished . . . was asked in substance whether he
nevertheless was willing to submit to questioning or to discuss the matter with the officer").
                                                  13
did." When asked how appellant indicated he understood all of his rights, Corporal

Rodriguez said, "[T]he interview was taken by both Corporal Casas and I. We read the

rights one by one while I was there. He also acknowledged the rights, and understood

the rights by signing at the bottom of the Miranda Rights Form." When the prosecutor

asked him, "Was there any question in your mind as to whether the defendant understood

his rights?", he said, "No. He understood perfectly." After receiving the Miranda rights

in both Spanish (exhibit fifty-two) and in English (exhibit fifty-three), appellant proceeded

without hesitation to give the written statement.

       Given the totality of the circumstances, we find that appellant waived his rights and

that he knowingly, intelligently, and voluntarily waived his rights as required by article

38.22. See Turner, 252 S.W.3d at 583 (holding defendant validly waived his rights when

he understood his rights and proceeded to answer questions); Hargrove v. State, 162

S.W.3d 313, 318-19 (Tex. App.—Fort Worth 2005, pet. ref'd) (finding accused validly

waived rights despite lack of explicit waiver); State v. Oliver, 29 S.W.3d 190, 193 (Tex.

App.—San Antonio 2000, pet. ref'd) (finding that, despite lack of explicit waiver, accused

knowingly, intelligently, and voluntarily made a statement after reading his rights,

indicating he understood them, and proceeding without hesitation to discuss

circumstances surrounding the murder). Such an implicit waiver is valid under article

38.22 and under the United States and Texas Constitutions. Turner, 252 S.W.3d at

583–84. We hold the trial court did not err by denying the motion to suppress appellant's

written statement. We overrule appellant's sole issue for review.




                                             14
                                     III. CONCLUSION

       We affirm the judgment of the trial court.


                                                    ROSE VELA
                                                    Justice

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

Delivered and filed the
4th day of October, 2012.




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