                           NUMBER 13-12-00251-CR

                              COURT OF APPEALS

                      THIRTEENTH DISTRICT OF TEXAS

                       CORPUS CHRISTI – EDINBURG
                                                                         _________

JOSE JUAN VARELA,                                                        Appellant,

                                             v.

THE STATE OF TEXAS,                                                        Appellee.


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


                         MEMORANDUM OPINION

            Before Justices Rodriguez, Garza, and Benavides
              Memorandum Opinion by Justice Benavides
      A jury convicted appellant, Jose Juan Cruz Varela, of murder, a first-degree

felony, and he received a sentence of forty-five years’ confinement. See TEX. PENAL

CODE ANN. § 19.02(b) (West 2011). By three issues, appellant contends that: (1) the

evidence “is inadequate under the Brooks standard to show that the testimony of the co-

conspirators was corroborated so as to show that [he] was a party or a conspirator to
the murder of his brother”; (2) the trial court erred in failing to suppress evidence

acquired from a cell phone in appellant’s possession when he was arrested “because

there was no probable cause or other authority”; and (3) the trial court commented on

the weight of the evidence in front of the jury by stating that one of the State’s witnesses

was a co-conspirator and a party opponent. We affirm.

                                        I.      PERTINENT FACTS

       Appellant had a brother named Ruben (the “victim”). The victim had a meeting

with appellant and their father. During this meeting, Josue Gonzalez Rodriguez (the

“shooter”) shot and killed the victim.

       Marco Antonio Hernandez stated that he knew appellant as “MP.” According to

Hernandez, shortly after he met appellant, appellant offered him $10,000 to kill

someone. 1 Hernandez testified that he told appellant that he did not do that type of job,

but that he would find someone who would do it. Hernandez spent several months

attempting to find someone who would do the killing. Hernandez saved appellant’s

phone information on his own phone as “MP.” Hernandez’s phone number at this time

was “776-5422.” The men exchanged many phone calls.

       Hernandez contacted Jose De Leon to do the killing. De Leon put Hernandez in

contact with his “in-law,” the shooter (Rodriguez). Hernandez and De Leon met in

Reynosa, Tampico, Mexico in 2007, and the men discussed the killing.

       In 2008, Hernandez informed appellant that he had found someone who would

perform the killing. While at a meeting with De Leon, the shooter, and Hernandez,

appellant gave some money to Hernandez, and the men went to “check the house


       1
           Hernandez claimed that at the time that he did not know the identity of the intended victim.


                                                          2
where the person to be killed was supposed to be.” Hernandez stated that initially, the

men had planned for the shooter to kidnap the victim and force him to sign some

paperwork, including a document that removed the victim and his mother as signatories

on a bank account in Mexico.       Hernandez testified that once the victim signed the

papers, he would be killed.     However, according to Hernandez, the plan changed

because they were unable to locate the victim for the kidnapping.

       According to Hernandez, the plan changed and the shooter was supposed go to

the house, ask for “Ruben Ovidio” (the victim), and then kill him.           According to

Hernandez, at this time, appellant gave him a picture of the victim. Hernandez testified

that he used the money that appellant gave him to get a car (a Grand Marquis) and a

gun.

       Hernandez stated that on the date of the killing, appellant informed him that a

meeting would occur between the victim, appellant, and their father.           Hernandez

instructed the shooter to go to the location and “do whatever he had to do.” De Leon

was supposed to go to the location with the shooter but he declined to go and another

man named “Fernando” went instead.          However, Fernando did not know that the

shooter planned to kill the victim. After the shooter killed the victim, Hernandez met with

the shooter and Fernando at a Wal-Mart in Sharyland. Hernandez sold the gun used in

the killing in Mexico. Hernandez asked a man known as “Pechocho” to burn the car

used in the killing.

       De Leon testified that Hernandez offered him $3,000 to kill somebody and that

Hernandez would get $10,000 for the killing. De Leon stated that Hernandez had taken

him to a subdivision named Cimarron and told him that the intended victim lived close to



                                                3
their location. De Leon declined the offer to commit the murder for money. De Leon

stated that, later, the shooter and Hernandez told him that the shooter had committed

the murder. De Leon claimed that he did not know the victim, that he knew nothing

about the Varela family, and that he did not know appellant other than seeing him in the

newspaper.

       Officer David M. Garcia testified that he investigated the scene shortly after the

murder occurred. He interviewed appellant and testified that he found appellant “very

evasive.” Officer Garcia stated “[appellant] was being really animated in reference to

what happened. I tried to get answers from him, and he would, pretty much, fall down

and cry—overly animated.” On cross-examination, Officer Garcia described appellant’s

behavior as “a fake cry” because usually when a person cries, “you see tears” and

appellant had no tears.     When asked if based on his training and experience he

believed that appellant’s behavior was suspicious, Officer Garcia replied, “Yes, I did.”

       Corporal Manual Casas testified that he investigated the murder. Bullet casings

and shells were found at the scene of the murder; however, the murder weapon was

never found. According to Corporal Casas, shortly after the murder, appellant was

arrested “because they thought they had sufficient probable cause to detain him.

[Appellant] was under arrest under an article of the Code of Criminal Procedure that

allows the police to detain someone.”

       Corporal Casas later inspected the property taken from appellant when he was

arrested, which included a black Motorola Boost phone (the “Motorola phone”) that had

been found in appellant’s boot. Corporal Casas stated that based on the information he

discovered in the Motorola phone, he located other phone records showing calls made



                                                4
between appellant and other co-conspirators. Corporal Casas testified that appellant

also had an iPhone, admitted as State’s Exhibit No. 70. Corporal Casas testified that

when he asked appellant about the Motorola phone, appellant told him that the phone

belonged to a friend named “Tocayo.” According to Corporal Casas, appellant claimed

that he had the Motorola phone because he used it when the battery on his iPhone

died.

        Corporal Casas also inspected three small pieces of paper which were notes

found in appellant’s possession.   State’s Exhibit 73 includes the notes and State’s

Exhibits 74 and 75 are “Detalles Llamada” taken from the Motorola phone. Corporal

Casas discovered that the Motorola phone had been purchased from a store owned by

one of appellant’s relatives. Corporal Casas found that one of the calls made on the

Motorola phone was made ten minutes before the murder to someone identified on the

phone as “Toca.” Another number called belonged to Hernandez.

        Corporal Casas determined that Hernandez had been involved in the murder and

that a call was made from the Motorola phone to Hernandez on the date of the murder

at 6:06 p.m. Corporal Casas testified that someone had called the number belonging to

the shooter from the Motorola phone.     Corporal Casas stated that there were also

phone records showing that calls were made to and from Hernandez on appellant’s

iPhone.

        According to Corporal Casas, Hernandez confessed that he had been involved in

the murder, and the shooter admitted that he shot the victim. Corporal Casas also

testified that the shooter told him that Hernandez acted as a middle man and that

appellant “had actually asked for [the victim] to be murdered.” Corporal Casas stated



                                             5
that the shooter informed him that appellant had provided a black and white Xerox copy

of a picture of the victim to assist him in identifying the victim. Corporal Casas testified

that when shown a photo lineup with six pictures, the shooter identified appellant as

“MP”—the man who wanted the shooter to kill the victim.

       Jose P. Varela (“Pepe”), appellant’s first cousin, testified that he spoke with

Corporal Casas regarding the Motorola phone found in appellant’s possession. Pepe

owned a cellular phone store in downtown McAllen, Texas, and he also owned “another

store of Nextel Radios” in Reynosa, Mexico. Pepe testified that he told Corporal Casas

“that some phones were sold [to appellant] for business.”         Pepe did not have any

knowledge of what the phone numbers assigned to those phones were.

       Several witnesses testified that the victim did not have a good relationship with

appellant and that the victim was afraid of appellant. Specifically, Jose Porfirio Cantu

Alaniz, a friend of the Varela family, testified that: (1) the victim and appellant did not

get along for the past few years; (2) the victim told him that appellant would pressure

the family to give him money in large quantities; (3) the family wanted to take away

appellant’s check-writing privileges regarding the family business; (4) the victim

attempted to mend his relationship with appellant; (5) the victim was a successful

businessman; (6) the victim indicated that he was afraid of appellant; and (7) the victim

was not fearful of anyone else and had no enemies.

       Also, Francisco S. Avalos testified that before the murder, the victim was

“worried, concerned, and very nervous” due to “things that happened” between

appellant and their father and that the victim “always had the feeling that [appellant] was

going to do something to him,” including possibly that appellant would have something



                                                6
to do with the victim’s death. According to Avalos, the victim believed that appellant’s

conduct “was inappropriate” because “of the way some of the company money was

being handled—and his parents had made a decision for him not to have any

access . . . to the company’s money.” Avalos stated that the victim had been fearful of

appellant for approximately two years before he died. Avalos said that the victim “was

always preoccupied, and afraid. At times he wouldn’t sleep—and on whatever occasion

he had—for his own suspicion, preoccupation, and his safety, he would become real

nervous.” Avalos stated that eventually appellant’s parents stopped allowing appellant

to have access to their money; and, appellant believed that his parents were favoring

the victim.   Avalos stated that the victim asked him to pray for his family because

appellant “had said that he was going to hurt the parents where it was the most hurtful—

where it would hurt them in the worst place.” Avalos testified that the victim never

stated that he feared anyone other than appellant.

       The victim’s wife testified that the victim was afraid of appellant and that the

victim “would tell [her], and also to [their children], that, not to open—if anyone comes to

the house—and he would give us instructions for our own security that if he would go,

not to open. . . .” The victim’s wife stated that the victim was not afraid of anyone other

than appellant. The victim’s wife testified that the day before the victim was murdered,

a man wearing a sweater came to the door asking for “Ruben Ovidio.” The victim’s wife

explained that the victim did not open the door because it was not cold that day and “no

one here knows him as Ruben Ovidio.” The man told the victim that he wanted to

discuss some properties; however, the victim refused to open the door. According to




                                                7
the victim’s wife, the victim “had something in his mind that [this occurrence] was related

[to appellant].”

       Apolinar Luna, who worked for the victim’s father, testified that on the day of the

murder, he waited outside the home where the men planned to meet in order to “warn”

the victim of appellant’s arrival because the victim was afraid of appellant.   Luna stated

that the purpose of the meeting was for the brothers “to discuss” their differences and

“reach good terms, because the businesses were stopped.” Luna did not participate in

the meeting. Luna stated that the victim had expressed fear that someone was trying to

kill him and that the victim was afraid of appellant.

       Appellant’s and the victim’s mother, Maria del Carmen Cruz de Varela, testified

that appellant’s relationship with the victim was bad and that appellant threatened that

blood would be spilled in the family. Appellant’s mother stated that appellant was angry

because the family stopped allowing him access to the family business. Appellant’s

mother stated that appellant “came to our home threatening us. He threatened out that

he would do something bad. And we did this to protect him. He said you’re family, but

you’re not my family.” Appellant’s mother said that the victim had expressed concern

about appellant “trying to take his life.”     Appellant’s mother testified that she told

investigators that she believed that appellant was responsible for the victim’s murder.

       The prosecutor asked appellant’s mother to review the documents found in

Hernandez’s possession and to explain what those documents were “purporting to do.”

Appellant’s mother replied, “It is—so that the properties of [the victim]—[the victim’s]

properties—out in the hands of [appellant’s] property, under his control and the name.

Why?     Why?”     The record shows that appellant’s mother then became emotional.



                                                 8
Appellant’s mother explained that other documents found purported to “cancel” the

victim’s and her own signature from the bank account “and then freedom is given to

[appellant’s] signature to use it indifferently [sic].” Appellant’s mother explained that

some of the documents were giving “a power of attorney for [appellant] on the [victim’s

behalf].”   While reviewing the documents, appellant’s mother clarified that in one

particular document, “[the victim] and [appellant’s mother] are giving power of attorney

to [appellant] of our properties. This one too.”

       Corporal Ted Rodriguez testified that when he interviewed appellant, appellant

did not act like someone who witnessed his brother’s murder. Rodriguez interviewed

the victim’s wife, and he learned that there was “some sibling rivalry” between appellant

and the victim regarding money and properties. Corporal Rodriguez testified that the

victim’s mother indicated that the victim had one enemy—appellant.              Corporal

Rodriguez explained that the victim’s mother told him that appellant became “enraged”

when they “switched” the bank accounts to require “dual signatures” and that appellant

“made the threat that there was going to be bloodshed because of those actions. He

also indicated that the father would have been there to witness the bloodshed.”

Corporal Rodriguez stated that he asked the victim’s mother to clarify her statement,

and “she advised that she knew that she was referring to [the victim], that [appellant]

was targeting [the victim].”

       Corporal Rodriguez testified appellant was “detained” because the officers “had a

reasonable suspicion” that appellant was a suspect in the murder and they wanted to

“avoid [sic] him from fleeing.” Corporal Rodriguez testified that Hernandez identified

appellant as “MP” and told him that appellant had hired Hernandez to assist in the



                                                   9
murder. Corporal Rodriguez stated that the shooter confessed his part in the murder

and the shooter identified appellant in a photo lineup as the person who hired him to kill

the victim. Corporal Rodriguez testified that Hernandez kept some documents that the

victim was supposed to sign “granting him the power over them” and once the victim

signed the documents, the victim would be killed. Corporal Rodriguez explained that

Hernandez said, “I have evidence that can prove the reason why he wanted him

murdered” and that Hernandez then produced the documents. On redirect examination,

Corporal Rodriguez stated that Hernandez told him, “I got evidence that can prove that

[appellant] knows me, and I know him because I got documents made under his name

in my possession.” Corporal Rodriguez testified that the documents corroborated what

Hernandez had told him about the murder, that the shooter’s statement corroborated

Hernandez’s statement, and that the family indicated a motive for the murder. Corporal

Rodriguez stated that Hernandez claimed that he called appellant on the day of the

murder “to get him out of there so that he wouldn’t get mistaken [for the victim].”

       Appellant testified that he did not have any involvement in the victim’s death. He

stated that he told Corporal Casas that the Motorola phone did not belong to him and

that a friend had left it with him. Appellant denied that it was possible for the Motorola

phone to have been hidden in his boot. Appellant stated that he had a fine relationship

with the victim but that they had business differences. Appellant claimed that because

the victim had been openly developing the family’s land in Reynosa, a group of men

with machine guns had made the victim kneel and demanded money.




                                                10
           II.     CORROBORATION OF THE ACCOMPLICE WITNESSES’ TESTIMONY

       By his first issue, appellant challenges the sufficiency of the evidence

corroborating the co-conspirators’ testimony.

A.     Applicable Law

       A person cannot be convicted based upon the testimony of an accomplice

witness unless the testimony is corroborated by other evidence tending to connect the

defendant with the offense committed; and the corroboration is not sufficient if it merely

shows the commission of the offense. TEX CODE CRIM. PROC. ANN. art. 38.14 (West

2005). Corroborating evidence can be direct or circumstantial and does not have to

establish the guilt of the accused. Smith v. State, 332 S.W.3d 425, 442 (Tex. Crim.

App. 2011) (“The direct or circumstantial non-accomplice evidence is sufficient

corroboration if it shows that rational jurors could have found that it sufficiently tended to

connect the accused to the offense.”); Gill v. State, 873 S.W.2d 45, 48 (Tex. Crim. App.

1984) (en banc). The corroborating evidence must merely tend to connect the accused

to the commission of the offense. Smith, 332 S.W.3d at 442. In reviewing a complaint

of insufficient corroborating evidence, we are required “to consider the combined force

of all of the non-accomplice evidence that tends to connect the accused to the offense.”

Id.

       There are two types of accomplices: (1) accomplices as a matter of law; and (2)

accomplices as a matter of fact. Id. at 439. A person is an accomplice as a matter of

law if the witness is indicted for the same offense or a lesser-included offense as the

accused.    Id.   However, when a doubt exists regarding whether the witness is an




                                                 11
accomplice, the trial judge may instruct the jury to determine the witness’s status as a

fact issue. Id. at 439–40.

B.      Discussion

        Appellant claims that Hernandez, the shooter, and De Leon were accomplices as

a matter of law. 2 Appellant points out that Hernandez and the shooter were indicted for

the victim’s murder and that a jury found the shooter guilty of killing the victim and that

conviction was affirmed by this Court. Thus, according to appellant, corroboration of

their testimony was required. By a sub-issue, appellant contends that any references

by the witnesses to any acts or statements made by the shooter must also be

corroborated and that we may not rely on such evidence in corroborating the testimony

of Hernandez and De Leon.

        1.       The Shooter’s Out-of-Court Statements

        The shooter did not testify at trial. However, the trial court allowed the witnesses

to testify about statements made by the shooter and actions the shooter took.                                   In

Bingham v. State, the court of criminal appeals “inferred” that article 38.14 requires

corroboration only of testimony of “the legally understood kind”; that is evidence


        2
              In a footnote to his brief, appellant states that the trial court “changed his mind” and decided that
whether De Leon was a co-conspirator was a fact issue for the jury. Appellant states that the trial court
instructed the jury that Hernandez was an accomplice as a matter of law. The State responds that
appellant’s statement that De Leon was an accomplice as a matter of law is a misstatement of the record.
The State also points out that appellant has not claimed that the trial court erred by allowing the jury to
determine whether De Leon was an accomplice as a matter of fact. According to the State, at the charge
conference, appellant conceded that whether the accomplice-witness rule would apply to De Leon was a
fact matter for the jury to decide. The State points out that at the conference, appellant’s trial counsel
said, “No, no. But that’s not what I am arguing. I am not arguing that he should be an accomplice
witness as a matter of law. I’m saying as a matter of fact. . . . And that’s the issue that the jury needs to
resolve, Judge. That’s the question that’s left up to the jury. They resolve whether or not he is, he
isn’t . . . .” Thus, the State appears to take the position that appellant cannot now claim that De Leon was
an accomplice as a matter of law. However, for purposes of our analysis, we need not resolve whether
De Leon was an accomplice as a matter of law or fact because we will assume, without deciding, that De
Leon was an accomplice. See TEX. R. APP. P. 47.1.


                                                            12
adduced “through live witnesses speaking under oath or affirmation in presence of

tribunal [.]” 913 S.W.2d 208, 210–13 (Tex. Crim. App. 1995). The court explained that

the legislature did not regard out-of-court statements made by accomplices “with the

same degree of suspicion as it did an accomplice witness who testifies in court.” Id. at

211. The court held that the court of appeals “was mistaken to conclude that the trial

court should have given an instruction to the jury that [an accomplice’s] out-of-court

statement must be corroborated before the jury could rely on it for conviction,” and that

“the court of appeals erred to hold that the trial court should have instructed the jury that

accomplice witnesses cannot corroborate one another . . . [b]ecause [the non-testifying

accomplice] did not give ‘testimony’ within the meaning of Article 38.14.” Id. at 213.

       Here, the shooter did not appear at appellant’s trial and none of the statements

attributed to him by other witnesses were under oath or in the presence of a tribunal;

accordingly, the shooter did not give testimony within the meaning of article 38.14. See

id. We therefore conclude that any references made by non-accomplice witnesses

concerning the shooter’s words and actions do not require corroboration.            See id.

Accordingly, we overrule appellant’s sub-issue.

       2.     Corroboration of Hernandez’s and De Leon’s Testimony

       The State concedes that Hernandez’s testimony required corroboration before

the jury could consider it and assumes that the jury determined that De Leon was an

accomplice as a matter of fact also requiring corroboration. See Smith, 332 S.W.3d at

442. We, likewise, will assume, without deciding, that De Leon was also an accomplice

witness and that his testimony required corroboration tending to link appellant to the

murder. See id.



                                                13
        The State asserts that the following non-accomplice witness evidence tends to

link appellant to the victim’s murder: (1) appellant did not immediately call for help or

offer help to the victim after witnessing his own brother’s murder; (2) immediately after

the murder, appellant told his father and Luna, “Let’s go. Let’s go. All of us, let’s go

from there, because this is going to become very hot”; (3) appellant had threatened that

there would be “bloodshed” within his family due to his rivalry with the victim and the

family’s decision to cut him off from the bank accounts; (4) the motive for the killing

(getting the victim to sign documents) was corroborated by the documents in

Hernandez’s possession which, if executed, would have had the effect of transferring to

appellant rights to and control over most if not all of the victim’s assets 3; (5) Corporal

Casas testified that the Motorola phone found in appellant’s possession when he was

detained “led” Corporal Casas “to the discovery of a lot of other things in this case”; (6)

telephone records showed that there had been numerous phone calls between

Hernandez and appellant on the Motorola phone and on appellant’s iPhone, including

calls made to and from appellant to Hernandez on the date of the murder and

specifically a phone call at around the time the murder occurred; (7) Corporal Casas

testified that the police determined that Hernandez was involved in the victim’s murder;

and (8) Corporal Casas testified that the phone records showed that there had been

phone calls between the shooter and appellant on the Motorola phone.



        3
          State’s Exhibit 87 was admitted without objection and includes documents that the victim was
allegedly supposed to sign as well as translations of these documents. The documents included two
letters dated November 22, 2007 for the victim to sign, which state that the victim had requested to be
removed from three bank accounts in Reynosa, Mexico. This would have left appellant as the sole
signatory on the accounts. There were also several copies of documents for the victim to sign granting
appellant “a general power of attorney for litigation and collections, acts of management and ownership.”
Appellant’s mother testified that the power of attorney was for real property.


                                                       14
       Further, the appellant’s wife, Martha E. Varela, when asked by the prosecutor

whether appellant had stated that “his family was going to pay,” responded, “He told me

that every one, we were going to pay him dearly.” Martha also testified that she recalled

that in 2007, she saw appellant making copies of certain documents including his

mother’s and the victim’s passport pictures that he had “enlarged to letter size.” Martha

stated that after making the copies, appellant called someone and said that he had

“finished the job of developing and printing, and that he was about to go there.”

Evidence was presented that the shooter had been provided with Xerox copies of the

victim’s picture. Finally, Avalos testified that appellant threatened to hurt his parents “in

the worst place.”

       We conclude that the combined force of the above-mentioned evidence tends to

connect appellant to the commission of the murder in this case. See TEX CODE CRIM.

PROC. ANN. art. 38.14.      As previously stated, the corroborating evidence need not

establish appellant’s guilt. We overrule appellant’s first issue.

                           III.   SUPPRESSION OF THE EVIDENCE

       By his second issue, appellant contends that the trial court erred in “failing to

suppress any information acquired as a result” of the seizure of the Motorola phone

because appellant was arrested “without any probable cause or other authority.”

Without citing any authority, appellant argues that “[b]ut for the illegal arrest and

detention in the Mission Police Department jail, the State would not have had the

[Motorola] phone.” Then, again without citation to authority, appellant states, “Whether

Appellant’s arrest was legal is not the issue as far as the statements are concerned. He




                                                15
was under arrest and in custody and was asked question about the case,” and the State

failed to show that the officer read him his Miranda warnings.

A.    Pertinent Facts

      A pre-trial hearing was held on appellant’s challenge to the admissibility of

comments he made to Corporal Casas that the Motorola phone was not his and that he

only used it when his iPhone died.        Appellant argued that the statements were

inadmissible on the basis that he “had already invoked his right not to be questioned”

when Corporal Casas asked about the Motorola phone. Corporal Casas testified that

he did not receive any notice or letter from appellant’s trial counsel that he was not

allowed to question appellant. Corporal Casas stated that appellant did not invoke his

right to an attorney when he was asked about the Motorola phone. Corporal Casas

claimed that he did not question appellant about the case, and only asked him about the

Motorola phone.

      On cross-examination, Corporal Casas clarified that appellant was under arrest

when he asked appellant about the Motorola phone. Corporal Casas stated that at that

point, the Motorola phone had not been identified as evidence in the case against

appellant. Corporal Casas admitted that he had not given appellant Miranda warnings

before asking about the Motorola phone. On redirect examination, Corporal Casas

stated that under the circumstances, no Miranda warnings were necessary because he

was not questioning appellant about the murder itself.

B.    Failure to Suppress Any Information Acquired from the Motorola Phone

      Appellant objected to the admissibility of the statements he made to Corporal

Casas.   The trial court stated that it would take the issue concerning appellant’s



                                               16
statement, while under arrest without being read the Miranda warnings, under

advisement. The trial court told the prosecutor only to mention that a phone had been

found in appellant’s possession when he was arrested pending his review of authorities

on the issue. Appellant argued that the State should not be allowed to mention that the

Motorola phone had been found in appellant’s possession. Appellant did not state the

basis of his objection. The trial court again ruled that the State could comment that the

Motorola phone was found in appellant’s boot when appellant was arrested.

      The trial court then explained that it had not yet ruled on appellant’s objection to

the admissibility of the comments he made to Corporal Casas regarding the Motorola

phone. At the pre-trial hearing, appellant did not complain that the evidence obtained

from the Motorola phone was inadmissible and did not object to the admissibility of the

phone records or other evidence obtained as a result of the acquisition of the Motorola

phone.

      On appeal, appellant complains that the trial court abused its discretion by “failing

to suppress any information acquired as a result” of the seizure of the Motorola phone

because appellant was arrested without any probable cause or other authority.

However, appellant cites no portion of this voluminous record where he objected on this

basis, and we have found no such objection upon our review. 4 Appellant has also not

cited any authority to support his contention that the trial court should have

“suppress[ed] any information acquired as a result” of the seizure of the Motorola phone

because appellant was arrested without any probable cause or other authority.

Because appellant did not object at trial on the basis he complains on appeal, this issue


      4
          There are over 1,500 pages of trial transcript in the record.


                                                         17
has not been preserved for our review. See TEX. R. APP. 33.1; see also id. R. 38.1(i)

(providing that appellant’s brief must cite the record and appropriate authority).

       Even if the issue had been preserved, it would be meritless. When the Motorola

phone was offered into evidence as State’s Exhibit 71 along with other items, trial

counsel affirmatively stated, “I don’t have any objections to any of the three [items],

Judge” and when the records for the Motorola phone were offered into evidence as

State’s Exhibits 78 and 79, appellant’s trial counsel stated that he had no objection to

either exhibit. See Swain v. State, 181 S.W.3d 359, 368 (Tex. Crim. App. 2005) (“The

affirmative acceptance of [] previously challenged evidence waive[s] any error in its

admission.”). Also, when Corporal Casas testified that the Motorola phone “led” him “to

the discovery of a lot of other things in this case,” appellant did not object. See id. We

overrule appellant’s second issue in this regard.

C.     Failure to Suppress Appellant’s Oral Statements to Corporal Casas

       Appellant claims that Corporal Casas failed to perform any of the required

procedures as set out in section 3(a) of article 38.22, which allows admission of a

defendant’s oral statements. See TEX. CODE CRIM. PROC. ANN. art. 38.22, § 3(a) (West

2005). 5 Thus, according to appellant, all of his statements to Corporal Casas were

inadmissible.

       5
           Article 38.22, section 3(a) states:

       (a) No oral or sign language statement of an accused made as a result of custodial
       interrogation shall be admissible against the accused in a criminal proceeding unless:

                  (1) an electronic recording, which may include motion picture, video tape,
                  or other visual recording, is made of the statement;

                  (2) prior to the statement but during the recording the accused is given
                  the warning in Subsection (a) of Section 2 above and the accused
                  knowingly, intelligently, and voluntarily waives any rights set out in the
                  warning;

                                                         18
       Appellant does not cite the record location where he objected on article 38.22

grounds or where the trial court ruled on such an objection, and we have not found any

such objection or ruling in the record. Therefore, appellant has not preserved this issue

for our review. See TEX. R. APP. P. 33.1. We overrule appellant’s second issue in this

regard.

       Regarding his complaint that the officers failed to read him his Miranda rights, the

State counters that although appellant made the objection outside the jury’s presence,

he never obtained an adverse ruling from the trial court. Therefore, error, if any, has not

been preserved. We agree with the State.

       At the conclusion of the pre-trial hearing, the trial court took the issue under

advisement concerning the admissibility of appellant’s statements to Corporal Casas

that the Motorola phone belonged to a friend. The trial court made it clear to the parties

that it wanted to review pertinent authorities before making a ruling. Appellant does not

provide citation to where the trial court ruled on his objection, and we have not located

such a ruling in the record. See id.; see also id. 38.1(i). Moreover, when Corporal

Casas testified that appellant told him that the Motorola phone belonged to his friend

“Tocayo,” appellant did not object. See Ethington v. State, 819 S.W.2d 854, 858 (Tex.




               (3) the recording device was capable of making an accurate recording,
               the operator was competent, and the recording is accurate and has not
               been altered;

               (4) all voices on the recording are identified; and

               (5) not later than the 20th day before the date of the proceeding, the
               attorney representing the defendant is provided with a true, complete,
               and accurate copy of all recordings of the defendant made under this
               article.

TEX. CODE CRIM. PROC. ANN. art. 38.22, § 3(a) (West 2005).


                                                        19
Crim. App. 1991) (“[D]efense counsel must object every time allegedly inadmissible

evidence is offered.”). We overrule appellant’s second issue in this regard.

                               IV.      IMPROPER COMMENT

       By his final issue, appellant contends that the trial court “erred by making a

statement in front of the jury that a witness being questioned by the prosecutor was a

co-conspirator and a party opponent.”        Appellant argues that due to this error, he

suffered egregious harm because:         “(1) the comments tainted his presumption of

innocence; (2) the [principal] factual issue for the jury to resolve was whether Appellant

was a co-conspirator; and (3) the comments were on the weight of the evidence.”

       During his testimony, the prosecutor asked De Leon if Hernandez “at some point

around February, 2008” offered him a job. Appellant’s trial counsel objected on the

basis of hearsay. A discussion was held off the record at the bench. The trial court

then stated, “Okay. The objection is overruled. The Court is going to admit it as a

statement of a co-conspirator.       It’s an exception to the hearsay rule.    Go ahead.”

Appellant’s defense counsel did not object to the trial court’s comment regarding its

reason for its ruling.

       On a second occasion during De Leon’s testimony, the prosecutor asked a

question, and appellant’s defense counsel objected on the basis of hearsay.           The

prosecutor argued that the statement was admissible because it was made by a co-

conspirator.    Appellant’s defense counsel argued that the party had not been

established to be a co-conspirator. The trial court then stated, “the Court is going to

overrule the objection, and admit in under 801(e)(2), an admission of a party




                                                20
opponent—the statement by a co-conspirator in furtherance of a conspiracy.”

Appellant’s defense counsel did not object to the comment.

       On a third occasion, during the State’s direct examination of Corporal Casas, the

prosecutor asked if Hernandez had provided “any information that led [him] to

[appellant].” Corporal Casas replied that Hernandez had provided information. The

prosecutor asked, “[W]hat specifically did you learn about the murder?” Appellant’s trial

counsel objected on the basis of hearsay. The trial court replied, “That’s a statement of

a co-conspirator,” and it overruled the objection. Appellant’s trial counsel did not object

to the trial court’s comment.

       The State responds that appellant’s complaint lacks merit because when the trial

court made the complained-of statements, it was within the context of ruling on

appellant’s objections to certain testimony. The State further argues that an objection is

ordinarily required to preserve error when a trial judge makes an allegedly improper

remark or comment unless the error is so prejudicial that it fundamentally affects the

presumption of innocence and cannot be cured by an instruction. Finally, the State

points out that the jury was aware of the fact that De Leon and Hernandez were co-

conspirators.

       Appellant did not object to the trial court’s comments. Mestiza v. State, 923

S.W.2d 720, 724, 726 (Tex. App.—Corpus Christi 1996, no pet.) (“A timely proper

objection is necessary to preserve error concerning a trial judge's comment on the

weight of the evidence.”). Thus, the issue has not been preserved for our review. See

id.; see also TEX. R. APP. P. 33.1. However, appellant argues that pursuant to the

plurality opinion in Blue v. State, 41 S.W.3d 129, 132 (Tex. Crim. App. 2000) (plurality



                                               21
op.), no objection was needed because the trial court’s allegedly improper comments

were so prejudicial that it fundamentally affected the presumption of innocence.

        Nonetheless, we conclude that the trial court’s comments in this case did not

constitute fundamental error.           The jury in this case heard ample testimony that

Hernandez and De Leon had conspired to murder the victim. In Blue, the judge told the

jury that, prior to his trial, the defendant had considered pleading guilty to the offense—

facts that a jury would not have otherwise known—and that the judge would have

preferred the defendant to plead guilty. Id. In effect, the trial court’s comments in Blue

provided the jury information that was not admissible, would not have been available to

the jury, and insinuated that the defendant was in fact guilty and should not go to trial. 6

Id. Here, as stated above, the trial court’s comments did not give the jury information

that it did not already know. It made the comment in the context of ruling on objections.

See id. Moreover, as the State points out, the trial court properly instructed the jury that

it should not concern itself with any of the objections or rulings that it made, that the jury

should presume appellant’s innocence, and that it should wholly disregard the rulings

and comments of the judge. See Colburn v. State, 966 S.W.2d 511, 520 (Tex. Crim.

App. 1998) (“We generally presume the jury follows the trial court’s instructions in the

manner presented.”); Jones v. State, 264 S.W.3d 26, 29 (Tex. App.—Houston [1st Dist.]

2007, pet. ref’d); see also Vega v. State, 255 S.W.3d 87, 105 (Tex. App.—Corpus

Christi 2007, pet. ref’d) (“[A]ny error was harmless because the [limiting] instruction,

which we presume the jury followed, identified material issues for which the evidence


        6
           We note that in Unkart v. State, 400 S.W.3d 94, 101 (Tex. Crim. App. 2013), the Texas Court of
Criminal Appeals clarified that the plurality opinion in Blue v. State, 41 S.W.3d 129 (Tex. Crim. App. 2000)
(plurality op.) is not binding authority but may still be persuasive.


                                                        22
could be considered under Rule 404(b),” and appellant did not present any evidence

rebutting the presumption that the jury followed the trial court’s instructions). Thus, we

cannot conclude that in this case, the trial court’s comments violated appellant’s

fundamental rights which would have required no objection. See Unkart v. State, 400

S.W.3d 94, 101 (Tex. Crim. App. 2013) (finding no fundamental error and that the

appellant forfeited his complaint by failing to object, while instructing the jury about the

defendant’s right not to testify, the judge said, “if I were [charged with a crime], then I

think I would probably [would] want to get up and tell my side. It’s just my nature. I

would want to probably say my point of view on the thing or my version of the facts, but

that’s just me”). We overrule appellant’s final issue.

                                    V.     CONCLUSION

       We affirm the trial court’s judgment.

                                                         _________________
                                                         GINA BENAVIDES
                                                         Justice

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

Delivered and filed the
9th day of January, 2014.




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