                                       In The
                                  Court of Appeals
                         Seventh District of Texas at Amarillo

                                         No. 07-17-00327-CR
                                         No. 07-17-00328-CR


                               AMADO R. MIRANDA, APPELLANT

                                                    V.

                               THE STATE OF TEXAS, APPELLEE

                              On Appeal from the 137th District Court
                                     Lubbock County, Texas
          Trial Court No. 2005-410,183; Honorable John J. "Trey" McClendon III, Presiding

                                           October 17, 2019

                                 MEMORANDUM OPINION
                       Before QUINN, C.J., and PIRTLE and PARKER, JJ.


          Appellant, Amado R. Miranda, appeals from his conviction by a jury of two counts

of indecency with a child by contact1 and the court-imposed sentence of twelve years of

imprisonment.2       Appellant challenges his conviction through several issues. We will

affirm.



          1
          TEX. PENAL CODE ANN. § 21.11(a)(1) (West 2019). An offense under this subsection is a felony
of the second degree. Id. at § 21.11(d).

          2
         TEX. PENAL CODE ANN. § 12.33 (West 2019) (a second-degree felony is punishable by
imprisonment for any term of not more than 20 years or less than 2 years and a fine not to exceed $10,000).
       BACKGROUND

       Appellant does not challenge the sufficiency of the evidence to support his

convictions. Accordingly, we will discuss only the facts pertinent to disposition of his

appellate issues. TEX. R. APP. P. 47.1.


       Appellant was indicted for four counts of indecency with a child by contact. The

State elected to proceed to trial on only two of those counts. Prior to trial, Appellant filed

a motion to suppress his confession. As grounds for his motion, Appellant contended his

confession was involuntary and violated his due process rights under the Texas and

Federal Constitutions because the confession was the product of police coercion from

“various statements, threats, and promises which violated [his] free will . . . .” He argued

also that the detective who interviewed him used his “personal tragedies to coerce a

confession.” Further, Appellant argued that the translator who assisted the detective and

Appellant communicate did not properly translate the questions and responses, leaving

Appellant confused and unable to understand the questions being asked.


       The court heard the recorded statement from Appellant and also reviewed two

transcripts of the interview. It also heard Appellant’s testimony. After the trial court heard

the evidence presented, it denied Appellant’s motion to suppress and the matter

proceeded to a jury trial. During trial, Appellant re-urged his motion to suppress his

statement.   The court denied the re-urged motion and entered findings of fact and

conclusions of law in which it found Appellant’s confession was freely and voluntarily

made and found Appellant was not in custody when he gave his confession.




                                              2
       ISSUES ONE AND TWO—ADMISSIBILITY OF APPELLANT’S CONFESSION


       In Appellant’s first two issues, he contends his statement to police was involuntary

and thus, inadmissible. We disagree and overrule the issues.


       VOLUNTARINESS OF CONFESSION

       We review a ruling on a motion to suppress evidence for abuse of discretion. Crain

v. State, 315 S.W.3d 43, 48 (Tex. Crim. App. 2010); Shepherd v. State, 273 S.W.3d 681,

684 (Tex. Crim. App. 2008) (citation omitted). In so doing, we view the facts in the light

most favorable to the trial court’s decision. Crain, 315 S.W.3d at 48 (citation omitted).

We give almost total deference to a trial court’s express or implied determination of

historical facts and review de novo the court’s application of the law to those facts. Id.

(citation omitted). The trial court is the “sole trier of fact and judge of credibility of the

witnesses and the weight to be given to their testimony.” Fears v. State, 491 S.W.3d 884,

887 (Tex. App. Houston [1st Dist.] 2016, pet. ref’d) (citing St. George v. State, 237 S.W.3d

720, 725 (Tex. Crim. App. 2007)). The trial court may choose to believe or disbelieve all

or any part of a witness's testimony. Id. (citation omitted). Furthermore, we will sustain

the trial court’s ruling if it is reasonably supported by the record and correct on any theory

of law applicable to the case. Id. (citing Laney v. State, 117 S.W.3d 854, 857 (Tex. Crim.

App. 2003)).


       Several sources of law are relevant to Appellant’s first two appellate issues: (1)

the Miranda rule; (2) the Texas confession statute; and (3) the right to be free from police

coercion under the Due Process Clause of the Fourteenth Amendment to the

Constitution. Lopez v. State, No. 13-13-00307-CR, 2015 Tex. App. LEXIS 6561, at *10-

11 (Tex. App.—Corpus Christi June 25, 2015, pet. ref’d) (mem. op., not designated for

                                              3
publication) (citations omitted). First, Miranda safeguards the Fifth Amendment right

against self-incrimination in the context of custodial interrogations by requiring that a

person subject to police questioning receive the following warnings: “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.” Id.

(citing Miranda v. Arizona, 384 U.S. 436, 444, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966)).


         Second, Texas statutory law requires that in order for an accused’s statement to

be used against him at trial, the statement must be “freely and voluntarily made without

compulsion or persuasion, under the rules hereafter prescribed.” TEX. CODE CRIM. PROC.

ANN. art. 38.21 (West 2005). The Texas confession statute implements Miranda by

requiring, among other things, that the accused’s statement be either written or recorded

and that the written or recorded statement contain a reading of the Miranda warnings,

along with the accused’s waiver thereof. TEX. CODE CRIM. PROC. ANN. art. 38.22 (West

2018).


         Third, the Due Process Clause of the Fourteenth Amendment requires that an

accused’s statement be voluntary and not the product of police coercion. Lopez, 2015

Tex. App. LEXIS 6561, at *10-11 (citing Armstrong v. State, 718 S.W.2d 686, 693 (Tex.

Crim. App. 1985)). A confession may be involuntary under the Due Process Clause only

where there is police overreaching. Oursburn v. State, 259 S.W.3d 159, 169 (Tex. Crim.

App. 2008).


         The Court of Criminal Appeals has noted that under articles 38.21 and 38.22, fact

scenarios that can raise a state-law claim of involuntariness, even though they do not

raise a federal constitutional claim, may include the following: “(1) the suspect was ill and

                                             4
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 and thought it was an

accident report’; (5) the suspect was confronted by the brother-in-law of his murder victim

and beaten; (6) the suspect was returned to the store he broke into ‘for questioning by

several persons armed “with six-shooters.”’” Oursbourn, 259 S.W.3d at 172-73 (citations

omitted). The potential “involuntary” fact scenarios encompassed by articles 38.21 and

38.22 are “broader in scope than those covered by the Due Process Clause or Miranda.”

Id.


       To determine whether the circumstances render an accused’s statement coerced

and involuntary, courts look at whether his will was “overborne” by police coercion. Lopez,

2015 Tex. App. LEXIS 6561, at *10-11 (citation omitted). Courts look to the totality of the

circumstances surrounding the statement in making this determination. Id. (citations

omitted). Relevant circumstances include the “length of detention, incommunicado or

prolonged detention, denying a family access to a defendant, refusing a defendant's

request to telephone a lawyer or family member, and physical brutality.” Id. (citation

omitted). When the issue is raised, the State must prove voluntariness by a

preponderance of the evidence. Id. (citing Juarez v. State, 409 S.W.3d 156 (Tex. App.—

Houston [1st Dist.] 2013 pet. ref’d)).


       Miranda applies only to use of statements obtained from a suspect during a police-

initiated “custodial interrogation.” Estrada v. State, 313 S.W.3d 274, 294 (Tex. Crim. App.

2010) (citing Miranda, 384 U.S. at 444). In determining “whether an individual was in

custody, a court must examine all of the circumstances surrounding the interrogation, but
                                            5
the ultimate inquiry is simply whether there [was] a formal arrest or restraint on freedom

of movement of the degree associated with a formal arrest.” Id. (citing Stansbury v.

California, 511 U.S. 318, 322, 114 S. Ct. 1526, 128 L. Ed. 2d 293 (1994) (internal quotes

omitted); Dowthitt v. State, 931 S.W.2d 244, 254 (Tex. Crim. App. 1996)). See also Ervin

v. State, 333 S.W.3d 187 (Tex. App.—Houston [1st Dist.] Aug. 11, 2010, pet. ref’d).


       On appeal, Appellant contends the totality of the circumstances shows his

confession was not voluntary. He first argues that the “linguistic confusion and vague

questioning” of him by an uncertified translator raised “serious doubts” as to the

voluntariness of his statement. He argues that he did not accurately understand the

detective’s questions and was frustrated by the translator’s inability to communicate what

Appellant was trying to tell the detective. He contends he did not understand and did not

know what he confessed to doing. This, he says, deprived him of due process of law. He

also asserts that the detective engaged in coercive police misconduct because he

promised to let Appellant be with his wife who had been recently diagnosed with invasive

cancer, because he threatened Appellant with arrest regardless of whether he confessed,

and because he told Appellant the interview would not end until he admitted to something

more than a “misinterpretation” of the events that led to the accusation that he was

indecent with a child.


       As part of his argument, Appellant complains of the hour-and-a-half he had to wait

prior to the beginning of the interview and the two-hour long interrogation. He argues that

the lengthy wait time, coupled with the lack of Miranda warnings, and the coercive nature

of the questioning showed he was in custody for the purposes of Miranda.




                                            6
       This case is similar to the situation in Estrada, 313 S.W.3d at 294 in which the

Court determined the record supported the trial court’s finding that the defendant was not

in custody when he provided his first recorded statement to police. There, the Court found

that while the interrogation took place at the police station and lasted five hours, the

defendant came to the police station voluntarily, police told him several times that he was

free to leave, he acknowledged he could have left, and stated several times that he

wanted to leave and go home. Id. In reaching its conclusion, the Court relied on the

opinions in Oregon v. Mathiason, 429 U.S. 492, 493-96, 97 S. Ct. 711, 50 L. Ed. 2d 714

(1977) and California v. Beheler, 463 U.S. 1121, 1122-25, 103 S. Ct. 3517, 77 L. Ed. 2d

1275 (1983). In Mathiason, the Court noted that a non-custodial situation is not converted

into one in which Miranda applies solely because the interrogation took place in a

“coercive environment.” 429 U.S. at 495. It further noted that any interview of a person

suspected of a crime by a police officer will have coercive aspects to it, but a police officer

is not required to administer the Miranda warnings to everyone they question. Id. In

Beheler, the Court concluded the defendant was not in custody when he voluntarily came

to the police station on the day of the offense, gave a statement to police after being

questioned for thirty minutes and was then allowed to go home. Beheler, 463 U.S. at

1122. See also Courtney v. State, No. 07-02-0159-CR, 2004 Tex. App. LEXIS 965 (Tex.

App.—Amarillo Jan. 30, 2004, pet. ref’d) (mem. op., not designated for publication)

(finding questioning was not custodial just because questioning occurs in a police station).


       Two separate transcripts were admitted into evidence at the motion to suppress

hearing. In addition, an audio recording of the interview was also admitted without

objection. Appellant was the only witness that testified at the hearing on the motion to

suppress. There, he told the court he voluntarily went to the police station, believing he

                                              7
was going to speak with the detective about payment of property taxes for some land his

church purchased. He testified the detective spoke “all in English.” He said “a certain

amount of time” or “a lot of time” had gone by before someone “who didn’t speak Spanish

perfectly” came in to help him and the detective communicate.3


        Appellant said he felt “suppressed” and “felt cornered” during his interview with the

detective. He said, “it was a lot of pressure for me.” He testified it “was almost like they

were obligating me to say what they were asking me” and he “didn’t have any other

option.” He also told the court he “never understood that [he] had rights.” He further

testified that the detective did not “exactly” make promises to him but said that if Appellant

“spoke, that he was going to help me.” Appellant also said the detective “did insist. He

did keep insisting in his questions.” Appellant agreed that the detective promised him that

if he told him what he wanted to hear, “he would let [Appellant] return to your family . . .

and to your wife.” However, Appellant also said the detective “never said, ‘I promise you

that I’m going to do this,’ but it was like they were inducing me that if I collaborated, or

cooperated with them, that things would come out okay.”                       Appellant also said he

understood that the detective told him that he could not make promises about how

Appellant’s situation would be handled; however, he would make the people involved

aware of his wife’s cancer diagnosis.


        Appellant was not restrained in any way and he was told at the outset of the

interview that he was free to leave. When the translator came in, he said “First of all, I

want him to understand that he doesn’t have to talk to me.” The detective then reiterated

that and said, “He can leave at any time . . . .” Appellant told the court that while he


        3 On cross-examination, the State asked Appellant if he would be “surprised that actually only about

ten minutes had gone by” and Appellant responded, “yes, some time went by.”
                                                   8
remembered some of the statements that were made to him, he did not understand he

had the right to stay quiet or the right to leave. He admitted he did say, “Si, yes” in

response to whether he understood the admonishments he was given. Appellant now

insists that he “was just answering yes, no, yes, no, without really understanding . . . what

they were trying to tell me.” Appellant later said he “possibly understood” that the

detective repeatedly told him he would be able to leave “but what I was seeing in their

facial expressions, in their movements, is that they were angry with me, or bothered me.”


       The record does show Appellant waited for approximately an hour-and-a-half

before the interview began and that the interview then spanned two hours. The record

also shows that Appellant maintained his innocence for a long period before making some

equivocal admissions to his actions.       The transcript also shows the detective told

Appellant, “No matter what you say here to me today, you are leaving my office and going

home, I promise you that.” However, Appellant said he did not remember being told that.


       Further, the record shows the problems the detective had communicating with

Appellant and the use of a non-certified translator to help them talk. Appellant said “it

was a lot of pressure for me. I don’t know if it was because—because of the way they

were presenting the matter to me, or the anxiety because I wasn’t understanding, and

they weren’t understanding me.” He said, “all I know is that I was struggling with the—

the Spanish. It’s not like it is now, where we have time to be able to think about the

question that’s being asked, it was—then it was just a bombardment of questions in

English and in Spanish, that’s what I’m talking about when—when I talk about mistakes,

mistakes that one can commit by not understanding, by not understanding these things,

and that is what happened to me.” Appellant did answer, “definitely,” when asked whether


                                             9
the lack of effective communication that occurred that day resulted in an involuntary

statement.


       Appellant told the court his statement was “definitely not” voluntary. He testified

“[t]his wasn’t voluntary. I was coerced to speak.” He went on to say that “[o]n various

occasions on various questions” he felt forced to say what he said. He then told the court

he didn’t understand “why this problem is so serious, because I didn’t do any kind of—

any—any harm to that family. I didn’t have any kind of contact. I didn’t touch her skin . .

. or body.” He later protested his innocence again, saying “I never touched [the girl] on

her skin or on her body, and she has never touched me. But I’m saying that it was very—

it was an insignificant type of touching, like grandparent with a girl, that’s all it was.” He

told the court, “that is the blame that I have in this in that I allowed that [the complainant]

touch over on top of my pants, on my—on my intimate places.” He maintained that he

“really did not understand the question” when he was asked if he touched the girl’s vagina

for sexual reasons. He said if the question had been asked the way it was asked during

the hearing on the motion to suppress, he “probably wouldn’t have said yes” but during

the interrogation, he understood the detective to be asking about touching like “by

hugging.”


       Reviewing the facts in the light most favorable to the trial court’s decision, while

recognizing the trial court was the sole trier of fact and the judge of the credibility of

Appellant’s testimony, the trial court could have reasonably concluded that, while

Appellant may have been confused about the criminality of his conduct and the

seriousness of the allegations, his statements to the police were not involuntary or

coerced. Confusion is not the same thing as coercion and an ill-advised statement is not

the same thing as an involuntary statement. Sufficient evidence supports the trial court’s
                                              10
conclusion that Appellant’s statutory and constitutional rights were not violated in the

taking of his statement. Because we do not find an abuse of discretion in the trial court’s

ruling, we resolve Appellant’s first two issues against him.


       INEFFECTIVE ASSISTANCE OF COUNSEL

       In his second issue, Appellant argues his counsel rendered ineffective assistance

because he failed to object to the admission of his statement under article 38.22 of the

Texas Code of Criminal Procedure. While Appellant acknowledges that his counsel did

file a motion to suppress his statement on the basis of alleged due process violations, he

contends his counsel was ineffective because he did not object to its admission under the

more expansive article 38.22.


       Both the United States and Texas Constitutions guarantee an accused the right to

the effective assistance of counsel. Rodriguez v. State, Nos. 07-15-00412-CR, 07-16-

00124-CR, 2016 Tex. App. LEXIS 13584, at *3-5 (Tex. App.—Amarillo Dec. 21, 2016, no

pet.) (mem. op., not designated for publication) (citing U.S. CONST. amend. VI; TEX.

CONST. art. I, § 10; Strickland v. Washington, 466 U.S. 668, 686, 104 S. Ct. 2052, 80 L.

Ed. 2d 674 (1984)). Claims of ineffective assistance of counsel are reviewed under the

two-pronged analysis articulated in Strickland. Id. (citing Thompson v. State, 9 S.W.3d

808, 812 (Tex. Crim. App. 1999)). To show ineffective assistance, a defendant must

demonstrate that (1) counsel’s representation fell below an objective standard of

reasonableness, and (2) there is a reasonable probability that, but for counsel’s deficient

performance, the result of the proceeding would have been different. Id. (citing Strickland,

466 U.S. at 687-88, 694; Lopez v. State, 343 S.W.3d 137, 142 (Tex. Crim. App. 2011)).




                                            11
        Looking at the issue in hindsight, there is a strong presumption that trial counsel’s

conduct fell within the wide range of reasonable professional assistance. Id. (citing

Strickland, 466 U.S. at 689). Appellant’s failure to prove both prongs of the Strickland

test is fatal to his ineffective assistance of counsel claim. Id. (citing Lopez, 343 S.W.3d at

142).


        The “right to effective assistance of counsel merely ensures the right to reasonably

effective [not perfect] assistance.” Id. (citing Robertson v. State, 187 S.W.3d 475, 483

(Tex. Crim. App. 2006) (quoting, with alteration, Ingham v. State, 679 S.W.2d 503, 509

(Tex. Crim. App. 1984) (en banc)). “Isolated instances in the record reflecting errors of

omission or commission do not render counsel’s performance ineffective, nor can

ineffective assistance of counsel be established by isolating one portion of trial counsel’s

performance for examination.” Id. (citations omitted). Counsel’s performance must be

judged by “the totality of the representation,” and “judicial scrutiny of counsel’s

performance must be highly deferential” with every effort made to eliminate the distorting

effects of hindsight. Id. (citation omitted).


        As we discussed in our analysis of Appellant’s first two issues, the admission of

his statement was not in error under any applicable law, including article 38.22.

Consequently, the statement would have been admitted into evidence even if counsel

had objected under the basis of article 38.22. Accordingly, we do not find counsel’s failure

to object to the admission of Appellant’s statement to police rendered ineffective

assistance. Further, we note counsel actively participated in Appellant’s defense by filing

a motion to suppress, by being actively engaged at all phases of trial, by engaging in

effective cross-examination of witnesses, and by presenting witnesses on Appellant’s

behalf. Accordingly, we overrule Appellant’s final issue.
                                                12
       CONCLUSION

       Having resolved each of Appellant’s issues against him, we affirm the judgments

of the trial court.




                                               Patrick A. Pirtle
                                                    Justice


Do not publish.




                                          13
