                         NUMBER 13-17-00335-CR

                            COURT OF APPEALS

                  THIRTEENTH DISTRICT OF TEXAS

                     CORPUS CHRISTI - EDINBURG


THE STATE OF TEXAS,                                                       Appellant,

                                             v.

JUAN CARLOS LARA,                                                          Appellee.


                   On appeal from the 93rd District Court
                        of Hidalgo County, Texas.


                       MEMORANDUM OPINION
 Before Chief Justice Valdez and Justices Rodriguez and Benavides
            Memorandum Opinion by Justice Benavides

      By one issue, appellant, the State of Texas, appeals the trial court’s granting of

appellee Juan Carlos Lara’s motion to suppress. The State argues Lara was properly

given his statutory warnings and voluntarily waived his rights. We reverse and remand.

                                 I.     BACKGROUND

      Lara was charged by indictment for the murder of Jaime Ramos. See TEX. PENAL
CODE ANN. § 19.02 (West, Westlaw through 2017 1st C.S.). Prior to trial, Lara filed a

motion in limine regarding any statements he made to the Palmview Police Department.

The motion requested that the trial court hold a hearing outside the presence of the jury

to determine the admissibility of his statement.

       Outside the presence of the jury, the trial court heard testimony from Investigator

Suehay Alejandro and Detective Ezequiel Jurado of the Palmview Police Department.

Detective Jurado arrested Lara and booked him in the Palmview City Jail. Investigator

Alejandro took Lara’s statement. Both testified Lara was given his statutory warnings.

See TEX. CODE CRIM. PROC. ANN. art. 38.22 (West, Westlaw through 2017 1st C.S.).

After the testimony, the trial court granted Lara’s motion to suppress and ruled the

statement was inadmissible.

       After the jury was unable to reach a verdict, Lara’s trial ended in a mistrial.

Jeopardy did not attach based on the circumstances of the mistrial, and the State

appealed the trial court’s ruling on the motion to suppress. See id. art. 44.01(a)(5) (West,

Westlaw through 2017 1st C.S.); see State v. Medrano, 67 S.W.3d 892, 902 (Tex. Crim.

App. 2002) (explaining how art. 44.01 gives the State the right to appeal in certain

situations similar to federal prosectors); but cf. State v. Blackshere, 344 S.W.3d 400, 408–

09 (Tex. Crim. App. 2011) (stating that when a trial court grants a mistrial and finds the

State’s evidence insufficient to convict the appellee, jeopardy attaches).

                               II.    MOTION TO SUPPRESS

       By its sole issue, the State argues the trial court improperly granted Lara’s motion

to suppress his statement.


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       A.     Standard of Review

       We review a trial court’s ruling on a motion to suppress under a bifurcated

standard. Gonzalez v. State, 501 S.W.3d 283, 285 (Tex. App.—Corpus Christi 2016, no

pet.). We give the trial court almost complete deference in its determination of historical

facts, especially if they are based on an assessment of credibility and demeanor. Id.

We afford the trial court the same deference on its rulings on the application of the law to

questions of fact and to mixed questions of law and fact if resolution of those questions

depends on an evaluation of credibility and demeanor.            Id.   However, for mixed

questions of law and fact that do not fall within that category, a reviewing court conducts

a de novo review. Id.

       Where a trial judge does not enter findings of fact, like in this case, a reviewing

court must “view the evidence in the light most favorable to the trial court’s ruling and

assume that the trial court made implicit findings of fact that support its ruling as long as

those findings are supported by the record.” Wiede v. State, 214 S.W.3d 17, 25 (Tex.

Crim. App. 2007).

       B.     Relevant Background

       Prior to trial, Lara filed a motion in limine regarding his statement. In his motion,

Lara stated that the State should be prevented from making any references to his alleged

statement because he believed that the statement was “involuntary and therefore

inadmissible and respectfully requests a Limine Hearing be held and ruling be made

before said evidence is admitted.”

       During trial, the trial court conducted the hearing requested outside the presence


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of the jury.     The State called Investigator Alejandro to testify.                 In her testimony,

Investigator Alejandro explained that Lara was initially arrested at the Hidalgo Port of

Entry by the United States Marshals and members of the Palmview Police Department.

When she met with Lara later at the Palmview Police Department, she read Lara his

Miranda rights in Spanish, Lara initialed each right, indicated he understood and waived

his rights, and made a statement in Spanish. See Miranda v. Arizona, 384 U.S. 436

(1966).1

        On cross-examination, Lara asked Investigator Alejandro if Court’s Exhibits 1 and

2 were the only Miranda forms that were presented to Lara, to which she responded “yes.”

Lara presented Investigator Alejandro with Defense Limine Exhibit 4, which was another

Miranda form from the Palmview Police Department. Defense Exhibit 4 was executed

an hour and thirty-nine minutes prior to Investigator Alejandro’s warnings.                     Defense

Exhibit 4’s warnings were given by Detective Jurado. Investigator Alejandro stated that

she was not aware that Investigator Jurado had made contact previously with Lara.

Investigator Alejandro then explained that if she had known that Detective Jurado had

previously made contact with Lara, she “would have addressed the issue if he wanted to

give a statement or not.” Lara also questioned Investigator Alejandro about the rights

contained on the Miranda warning page. See id. Lara asked the investigator to show

him on the page where it stated, “I waive my rights.” Investigator Alejandro agreed that




         1   Admitted as Court’s Exhibit 1 was the Spanish translation of Lara’s Miranda rights. See
Miranda v. Arizona, 384 U.S. 436 (1966). Court’s Exhibit 2 was Lara’s voluntary statement. At the top of
the page was a second set of Miranda warnings, in which Lara initialed each right, stated he understood
his rights, and waived his rights. See id. Court’s Exhibits 3 and 4 were the certified English translations
of Court’s Exhibits 1 and 2.
                                                    4
while the paper did not specifically state that, it was inferred from the waiving of each right

and willingness to give a statement on Lara’s part.

         The State asked Investigator Alejandro to point out where on the rights form it

stated that Lara did not want to give a statement. Investigator Alejandro stated it did not

say that he refused to give a statement anywhere on the form, and, in fact, the place to

check off agree or not agree to speak to officers was left blank. Going through the rights

again, Investigator Alejandro explained that Lara was read his rights multiple times and

did not invoke his rights.

         The Court then had the following exchange with Investigator Alejandro:

         Trial Court:   Well, I’m still confused, you know. If–if you had known that,
                        what would you have done, if you had known that the other
                        investigator had gotten this statement signed?

                        ...

         Trial Court:   Let’s say, if you had found out or if you knew that he had
                        signed this statement, what would you have done?

         Alejandro:     Oh, I would have been advised by my superiors to stand off.

         Trial Court:   Okay. If you saw that statement the way it is?

         Alejandro:     The way it is, yes, I would have backed off.

         Trial Court:   And you wouldn’t have taken–gone through all that process
                        that you’ve gone through?

         Alejandro:     No, sir, we would’ve had to given him his rights.

         In an attempt to clarify the responses, the State questioned Investigator Alejandro

again:

         State:         Would you have taken a statement from the defendant if you
                        had seen this document and it had a checkmark that he

                                               5
                     agreed to waive his rights; would you still have gone forward?

      Alejandro:     If he would’ve waived his rights, as far as wanting to speak to
                     me, yes.

      Detective Jurado also testified.       He explained that he read Lara his Miranda

warnings and had Lara sign the form that he had been given the rights. See id. The

State asked Detective Jurado if he intended to take a statement from Lara after giving the

rights, to which Detective Jurado responded no. He explained he had orally given Lara

his rights upon initial contact at the bridge and there was no discussion between Detective

Jurado and Lara during transport back to the Palmview Police Department. Detective

Jurado stated that Lara gave no indication that he waived his rights or invoked his rights.

Detective Jurado explained that he did not attempt to take a statement from Lara because

he was a patrol officer and patrol officers did not question suspects of this nature. The

middle of the warnings form where Lara would check if he wanted to waive his rights or

not was left blank because Detective Jurado was not going to question him. On cross-

examination, Detective Jurado explained that Lara’s signature on the rights form indicated

he understood his rights.

      Following the testimony, the trial court explained:

            Well, my problem is that she had, if she was aware of it [the first
      warning form], she wouldn’t have questioned him and that’s what, you know,
      keeps, stays in my mind, at this point, and say, well, you know, she didn’t
      know about it but if she’d known about it, she wouldn’t have done what she
      did. And that’s–I can’t get around that.

      ....

             I’ve read the case law that you submitted this morning. I’ve read
      everything. As far as that’s concerned, I kind of–this is kind of has been a
      very difficult, not difficult, but it’s been kind of [sic], I think it’s pretty simple

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       as far as what, you know, normally under normal circumstances, I do not
       have a problem with it.

             However, based on the officer’s testimony yesterday, I still can’t get
       away from that. So I’m going to order that the statement be suppressed.

       C.      Applicable Law

       Article 38.22 of the code of criminal procedure governs the admissibility of

statements made by a defendant during custodial interrogation in a criminal proceeding.

Herrera v. State, 241 S.W.3d 520, 526 (Tex. Crim. App. 2007) (citing TEX. CODE CRIM.

PROC. ANN. art. 38.22). Article 38.22 requires that a defendant be provided with warnings

virtually identical to those required by Miranda, but also that the accused has the right to

terminate the interview at any time. Id. It further provides that an oral statement is

admissible against a defendant in a criminal proceeding if, among other things, the

defendant “knowingly, intelligently, and voluntarily” waived the rights set out in the

warning. Id.

       The State has the burden of showing a defendant knowingly, intelligently, and

voluntarily waived his rights under Miranda and article 38.22 by a preponderance of the

evidence. Leza v. State, 351 S.W.3d 344, 349, 351 (Tex. Crim. App. 2011); see Joseph

v. State, 309 S.W.3d 20, 24 (Tex. Crim. App. 2010). In evaluating whether an individual

waived his rights, courts look at (1) whether the waiver was made voluntarily, which is

defined as being a product of a free and deliberate choice rather than intimidation,

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

the nature of the rights being abandoned and the subsequent consequences of that

decision. Leza, 351 S.W.3d at 349–50, 352. Such an evaluation involves the totality of


                                             7
the circumstances, which requires the consideration of all the circumstances surrounding

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

Joseph, 309 S.W.3d at 25.

      A waiver can be expressly made or implied by the accused’s conduct. Berghuis

v. Thompkins, 560 U.S. 370, 384 (2010); Joseph, 309 S.W.3d at 24. “A valid waiver will

not be presumed simply from the silence of the accused after the warnings are given or

simply from the fact that a confession was in fact eventually obtained.” Joseph, 309

S.W.3d at 24 (quoting Miranda, 384 U.S. at 475). A waiver need not assume a particular

form and in some cases, a “waiver can be clearly inferred from the actions and words of

the person interrogated.”   Id. (quoting North Carolina v. Butler, 441 U.S. 369, 373

(1979)). An implied waiver can be established upon a showing that the accused (1) was

given proper warnings; (2) understood the warnings and their consequences; and (3)

made an uncoerced statement.        Berghuis, 560 U.S. at 382–85.        “As a general

proposition, the law can presume that an individual who, with a full understanding of his

or her rights, acts in a manner inconsistent with their exercise has made a deliberate

choice to relinquish the protection those rights afford.” Id. at 385. The Berghuis Court

summarized its holding by stating, “in sum, a suspect who has received and understood

the Miranda warnings, and has not invoked his Miranda rights, waives the right to remain

silent by making an uncoerced statement to the police.” Id. at 388–89.

      D.     Discussion

      The trial court seemingly granted Lara’s motion to suppress based on the unclear

testimony given by Investigator Alejandro.     However, in order to determine if Lara


                                           8
invoked his rights prior to any interaction with Investigator Alejandro, we look at the totality

of the circumstances.       See Joseph, 309 S.W.3d at 25. We find that based on the

testimony from both officers, Lara did not invoke his rights at any time.

       Although Investigator Alejandro’s testimony was unclear and contradictory,

Detective Jurado’s beliefs and actions explain the full situation.               Detective Jurado

testified that he was the officer who arrested Lara at the Hidalgo Port of Entry and took

Lara to the Palmview City Jail. Detective Jurado also explained that he read Miranda

warnings to Lara at his time of arrest in Spanish and no statements were made.

Detective Jurado stated that he again read Miranda warnings in Spanish to Lara upon

booking him into the city jail, but that he did not ask Lara if he waived or invoked those

rights at that time because he was not going to ask any questions of him, other than the

standard booking questions.2 Detective Jurado testified that Lara also gave no indication

of invoking or waiving his rights and since Detective Jurado was still a patrol officer at that

time, he was not the person who would have taken a statement from Lara. Detective

Jurado explained that after he warned Lara and filled out the proper booking forms, he

assumed the information was forwarded to the investigations department and resumed

his patrol duties.

       Based on Detective Jurado’s testimony, there was no indication that Lara had

invoked or waived his rights when he was later approached by Investigator Alejandro.

When Lara was with Investigator Alejandro, he was given his Miranda warnings a third

time in Spanish, signed the form stating he understood the rights, waived his rights, and


       2   Routine booking questions are not considered interrogation. See Pennsylvania v. Muniz, 496
U.S. 582 (1990).
                                                  9
proceeded to give Investigator Alejandro a statement in Spanish.

       Under the evaluation that courts take as stated in Leza, as well as waiver

discussed in Berghuis, we find that Lara was properly warned of his statutory rights,

having not previously invoked those rights, knowingly, intelligently, and voluntarily waived

them,3 and gave a voluntary statement to Investigator Alejandro. See Leza, 351 S.W.3d

at 349–50, 352, Berghuis, 560 U.S. at 382–85; see also Joseph, 309 S.W.3d at 25. We

sustain the State’s sole issue.

                                        III.    CONCLUSION

       We reverse the trial court’s granting of the motion to suppress and remand for

proceedings consistent with this decision.


                                                                        GINA M. BENAVIDES,
                                                                        Justice


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

Delivered and filed the
27th day of September, 2018.




       3 Lara also alleges the warnings given were not in substantial compliance with article 38.22. See

TEX. CODE CRIM. PROC. ANN. art. 38.22. However, the trial court had previously found compliance, but
based on our decision and holding, we find this issue moot at this time.
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