                       NUMBER 13-07-332-CR

                      COURT OF APPEALS

            THIRTEENTH DISTRICT OF TEXAS

                CORPUS CHRISTI - EDINBURG



THE STATE OF TEXAS,                                      Appellant,

                                  v.

LUIS AGUILAR,                                            Appellee.


                On appeal from the 28th District Court
                      of Nueces County, Texas




                    MEMORANDUM OPINION

           Before Justices Rodriguez, Garza, and Vela
             Memorandum Opinion by Justice Vela
         The State appeals the trial court's order granting Luis Aguilar’s motion to suppress

his video-taped statements. See TEX . CODE CRIM . PROC . ANN . art. 44.01(a)(5) (Vernon

Supp. 2008).1 By one issue, the State asserts the trial court erred in granting the motion

to suppress. We reverse and remand.

                                                 I. Background

         On the morning of November 5, 2006, Jose Mosqueda was stabbed to death on

Mohawk Street in Corpus Christi. About twelve hours later, the suspect in the slaying, Luis

Aguilar, was arrested and taken to an interview room at the Corpus Christi Police

Department. The interview room was equipped with a video camera that recorded the

events2 in the interview room. Detective R. L. Garcia gave Aguilar a document3 entitled

         1
          The State m ay appeal an order that “grants a m otion to suppress evidence, a confession, or an
adm ission, if jeopardy has not attached in the case and if the prosecuting attorney certifies to the trial court
that the appeal is not taken for the purpose of delay and that the evidence, confession, or adm ission is of
substantial im portance in the case[.]” T EX . C OD E C R IM . P R O C . A N N . art. 44.01(a)(5) (Vernon Supp. 2008).

         2
          The interview between Detective Garcia and Aguilar was conducted in Spanish. An English-language
translation of the interview was adm itted into evidence at the suppression hearing. In relevant part, the
translation stated:

         Officer Garcia: Mr. Aguilar . . . before I talk to you. . .

         Aguilar:          Un-huh.

         Officer Garcia: I have to give you your warnings okay.

                           ***

         Officer Garcia: [R]ead m e this, what does it say in Spanish read m e that.

         Aguilar:          It says you have the right to rem ain silent you don’t have to give any
                           statem ent. Anything you say can be, can be it says and will be used as
                           evidence against you in court it says.

         Officer Garcia: W ait do you understand that right?

         Aguilar:          Yes.

         Officer Garcia: Okay put your initials there put your nam e here on top also put your initials.



                                                          2
“ADVISO DE MIRANDA,” which contained the Miranda4 warnings in Spanish. Aguilar read



         Aguilar:           Only m y initials?

         Officer Garcia: Initials okay. W hat is the second right here?

         Aguilar:           You have the right to hire an attorney have him present with you before and
                            during a whatever interrogation which [sic] peace officers detectives or
                            attorneys for the state. . . .

         Officer Garcia: Okay put your initials. You do understand that right?

         Aguilar:           Uh huh.

         Officer Garcia: Okay let’s go to the third one.

         Aguilar:           If you don’t have the m eans to hire an attorney you have the right that the
                            court assign you one without paym ent it says to represent you before and
                            advise you before and during any interview.

         Officer Garcia: Do you understand? Put your initials again. The sam e thing next.

         Aguilar:           If you perm it any peace officer or attorney for the state ask you questions
                            with or without your attorney representatives you still have the right to deny
                            answering and put an end to the questions.

         Officer Garcia: Here.

         Aguilar:           You have the right to an exam ining trial a hearing in front of a judge to
                            determ ine if the state has enough evidence to hold you or according to the
                            law or be set free without any charges.

         Officer Garcia: Do you understand your rights?

         Aguilar:           Do you understand your rights, yes.

         Officer Garcia: Put a circle on the word yes a circle. Put your initials here. Okay put the
                         date here and it is eleven 5 Novem ber fifth.

         Aguilar:           I put 11.

         Officer Garcia: 11, 5.

         Aguilar:           11, 5.

         Officer Garcia: 06 okay put your nam e right here. O kay here is where it goes. It is Luis
                         Arturo, right?

         Aguilar:           Yes.

         3
             At the suppression hearing, the trial court adm itted this docum ent into evidence as defendant’s
exhibit 1.

                                                         3
each warning out loud, told Detective Garcia he understood them, and put his initials by

each warning. Following these warnings, the document states: “Entiende sus derechos?

Si __ No __,” which means, “Do you understand your rights? Yes__ No__.” Aguilar circled

the Spanish word, “Si,” and he put his initials in the blank following “Si.” After Aguilar and

Detective Garcia signed the document, Aguilar told him about the stabbing incident.

Afterwards, Aguilar agreed to take Detective Garcia to where he had hidden the knife. At

this point, the videotape ends. It restarts when Aguilar and Detective Garcia return to the

interview room. Detective Garcia showed Aguilar the knife, and Aguilar identified it as the

knife he used to stab Mosqueda.

       Aguilar was indicted for Mosqueda’s murder by stabbing him with a knife. On

February 27, 2007, defense counsel filed a motion to suppress evidence, asserting that

Aguilar was given his Miranda warnings as required by law; however, he never made a

knowing, intelligent, or voluntary waiver of his rights as required by article 38.22, section

3 of the code of criminal procedure. Aguilar claims that his videotaped statements were

therefore involuntarily made and any evidence obtained as a result thereof is inadmissible.

Specifically, Aguilar claims that the knife allegedly used in this case, its location, and the

fact that Aguilar took the police to the knife are inadmissible because the evidence was

obtained in violation of articles 38.22 and 38.23 of the code of criminal procedure, the

Fourth and Fourteenth Amendments to the United States Constitution, and the Texas

Constitution.5



       4
           See Miranda v. Arizona, 384 U.S. 436 (1966).

       5
           Aguilar does not specify what article or section of the Texas Constitution to which he is referring.

                                                        4
       On April 27 and 30, 2007, the trial court held a hearing on the motion to suppress.

Before the court heard any evidence, the State’s attorney and defense counsel agreed6 to

narrow the issue to whether Aguilar knowingly, intelligently, or voluntarily waived his rights

as required under article 38.22 of the code of criminal procedure.

                                             II. Standard of Review

       “The job of an appellate court in cases” of motions to suppress evidence “is to

review the decision of the lower court for an abuse of discretion.” State v. Dixon, 206

S.W.3d 587, 590 (Tex. Crim. App. 2006) (op. on orig. submission). “We view the record

in the light most favorable to the trial court's conclusion and reverse the judgment only if

it is outside the zone of reasonable disagreement.” Id.; Carmouche v. State, 10 S.W.3d

323, 328 (Tex. Crim. App. 2000); see De La Rosa v. State, 658 S.W.2d 162, 167 (Tex.


       6
           Specifically, the parties told the trial court:

       State:               And for the purpose of this hearing, I think it would benefit everybody if we
                            narrow the issue. I read his [defense counsel’s] m otion [to suppress] as
                            com plaining of the actual Miranda warnings given to the defendant [Aguilar],
                            whether those were— actually, whether the defendant affirm atively waived
                            his rights as given to him by the detective. I’m not sure if that is the only
                            issue that Mr. Del Toro [defense counsel] is com plaining about. I just want
                            to narrow down the issues and save tim e here.

       Counsel:             I agree, Your Honor. The Court is well aware Article 38.22, Section 3, talks
                            about cases where oral statem ents are taken and recorded. And the States
                            are required to preserve that recording. And prior to the statem ent being
                            given or during the recording, the article requires that certain warnings
                            should be given to the defendant, otherwise known as the Miranda
                            warnings. In addition, it says the accused m ust knowingly, intelligently, and
                            voluntarily waive any rights as set out in the warnings.

                            I perceive that m y client was given som e warnings, Your Honor, or— I think
                            they do m eet the requirem ents under the statute. I will let the Court decide
                            that. But m y m ain concern is whether there was a waiver of any of his rights
                            as required under 38.22, Your Honor. And we are saying there was no
                            knowing, intelligent, or voluntary waiver of such rights by the defendant in
                            this case. . . .

       Court:               All right. That, in essence, is the issue I see here.

                                                             5
Crim. App. 1983); Montgomery v. State, 810 S.W.2d 372, 391 (Tex. Crim. App. 1991) (op.

on reh'g). “We will sustain the lower court’s ruling if it is reasonably supported by the

record and is correct on any theory of law applicable to the case.” Dixon, 206 S.W.3d at

590; Romero v. State, 800 S.W.2d 539, 543 (Tex. Crim. App. 1990). “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.” Dixon, 206 S.W.3d at 590

(citing State v. Ross, 32 S.W.3d 853, 856 (Tex. Crim. App. 2000)); accord Guzman v.

State, 955 S.W.2d 85, 88 (Tex. Crim. App. 1997). “[G]reat deference is accorded to the

trial court's decision to admit or exclude such evidence, which will be overturned on appeal

only where a flagrant abuse of discretion is shown.” Delao v. State, 235 S.W.3d 235, 238

(Tex. Crim. App. 2007).

       “[T]he trial court is the ‘sole and exclusive trier of fact and judge of the credibility of

the witnesses’ and the evidence presented at a hearing on a motion to suppress,

particularly when the motion is based on the voluntariness of a confession.” Id. (footnote

omitted). The determination of whether a statement is voluntary is a mixed question of law

and fact; that is, an application of law to a fact question. Garcia v. State, 15 S.W.3d 533,

535 (Tex. Crim. App. 2000). We review de novo those questions not turning on credibility

and demeanor. Id.

       In evaluating the voluntariness of confessions, a trial court is required to examine

the totality of the circumstances surrounding them. See Arizona v. Fulminante, 499 U.S.

279, 285-86 (1991); Colorado v. Connelly, 479 U.S. 157, 167 (1986); Delao, 235 S.W.3d

at 241; Creager v. State, 952 S.W.2d 852, 856 (Tex. Crim. App. 1997).



                                                6
                                        III. Suppression Hearing

A. Luis Aguilar’s Testimony

      Aguilar, a twenty-eight-year-old El Salvadoran native, testified he can read and write

Spanish, but he cannot read or write English.7 He has lived continuously in the United

States since September 18, 2005. Defense counsel showed Aguilar the document

containing the Miranda warnings, which was admitted into evidence as defendant’s exhibit

1. When counsel asked Aguilar to read the document’s first paragraph, Aguilar responded,

“You have the right to remain silent. You don’t have to give any statement. Anything you

say can be used against you, as evidence against you in court.” He testified that he told

Detective Garcia he understood this right. When counsel asked Aguilar what the first

paragraph meant, he replied:

      A.         That I don’t have to talk in court. I have to remain silent.

      Q.         That you have to remain silent?

      A.         Yes.

      Q.         Or does it say that you may remain silent?

      A.         Yes.

      Q.         And what did that signify or mean to you?

      A.         I don’t know.

      Q.         Do you know what that meant when it said, in a court?

      A.         No.

      Q.         Why did you tell the officer that you understood what you had read?



      7
          Luis Aguilar testified through a sworn interpreter.

                                                       7
       A.     I didn’t know.

       Q.     You didn’t know what?

       A.     I didn’t know what was going on.

       When counsel asked Aguilar to read the document’s second paragraph, he

responded, “You have the right to hire an attorney.” He testified that he understood what

this meant. When counsel asked him what it meant, he replied, “It means that I had the

right to ask for an attorney if I didn’t have the money to get one.”

       When counsel asked Aguilar to read the third paragraph, he replied, “If you don’t

have the means to hire an attorney, you have the right for the Court to find you one without

any payment so that he can represent you before and during any interview.” When

counsel asked Aguilar, “What did you understand it to mean?”, he said, “I don’t know.”

However, Aguilar testified he was familiar with the concept of what it means to hire a

lawyer, but he denied knowing how to get a court to assign a lawyer to him.

       When counsel asked Aguilar to read the next paragraph, he replied, “If you permit

for any official—any peace officer or attorney from the State to ask you questions without

an attorney being present, you still have the right to stop the answers and stop—deny

answering, and put an end to the questions.” He testified that he did not know what this

meant. When counsel asked him, “What do you think it means?”, he replied, “I don’t

know.” At that point, counsel asked him:

       Q.     When it says here that if you permit any official of the peace—what
              does that mean to you, official of the peace?

       A.     A police officer.

       Q.     And where it says, or attorney of the State, what is that to you?


                                             8
      A.     Like an attorney like you.

      Q.     Do you think I’m an attorney for the State?

      A.     No, I don’t know.

      Q.     But the paper says, or an attorney of the State, correct?

      A.     Yes.

      Q.     [W]hat does that mean to you, those words?

      A.     I don’t know.

      Q.     When it says here that you have the right to stop the questioning, do
             you know what that means?

      A.     No.

      Q.     Do you know what questions it’s referring to?

      A.     Yes.

      At this juncture, counsel told the court he thought the interpretation “was a little bit

off” and repeated the question:

      Q.     When you read that, do you know what questions that paragraph was
             referring to?

      A.     Maybe.

      Q.     You’re not sure?

      A.     No.

      Q.     What do you think it means?

      A.     Well, maybe I think what it meant, that if the police officer caught me,
             that I didn’t have to answer.

      Q.     So you understood that back then?

      A.     Yes.


                                             9
       When counsel asked Aguilar to read the last paragraph, he replied, “You have the

right to have an examining trial.” He testified that he did not know what that meant.

Counsel then told him:

       Q.     Continue reading.

       A.     A hearing before a judge.

       Q.     Do you know what that is? What does that mean to you?

       A.     I think that is what we are doing right now.

       Q.     Continue.

       A.     To determine if the State has enough evidence.

       Q.     Do you understand what that means?

       A.     Yes.

       Q.     Continue.

       A.     To detain you and continue according to the law, or to be set free
              according—or to be set free without any charge.

       Q.     Do you understand what that meant?

       A.     Yes.

       Aguilar stated that when he initialed and signed the document, no one asked him

if he wanted to give up any rights that he had. When counsel asked him, “Did you know

at that time that if you signed that document, it might mean that you were giving up

whatever rights you had under the law here in the United States?”, he replied, “No, I didn’t

know.” Aguilar answered “No” when counsel asked, “So did you feel that you had to

answer the questions?” Aguilar testified he answered the questions because he wanted

to. However, he said that at the time he talked to Detective Garcia, he did not understand


                                            10
what the document said. Counsel further questioned Aguilar as follows:

       Q.     What do you think would have happened if you told him [Detective
              Garcia], no, I don’t want to put my initials there?

       A.     I don’t know.

       Q.     Did that thought cross your mind when he told you to put your initials
              there?

       A.     Yes.

       Q.     What were you thinking at that point?

       A.     He just told me to read it and for me to put my initials on the little line.

       Q.     But didn’t he also ask you if you understood as you were putting your
              initials on there?

       A.     Yes.

       Q.     And did you indicate to him that you understood?

       A.     Yes.

       Q.     But now you are telling us that you didn’t really understand?

       A.     Yes, I just read it and I put my initials.

       On cross-examination, Aguilar testified that he is able to read and write Spanish,

understand what he reads in Spanish, and express himself in Spanish. He testified that

he was able to read defendant’s exhibit 1 and that he placed his initials by each warning,

circled “Si” where the document asked if he understood his rights, and wrote his initials on

the line following the word “Si.” When the State’s attorney asked him, “And so by that, you

were saying you understood these rights, correct?”, he replied, “Yes.” The State’s attorney

questioned him as follows:

       Q.     And you did understand what you read, didn’t you?


                                              11
              ***

       A.     No.

       Q.     Then why did you say that you did understand?

       A.     I don’t know.

       Q.     Are you saying that you understood the words but you didn’t really
              understand what it meant?

       A.     Yes.

       Q.     But you definitely told Detective Garcia that you did understand these
              rights, correct?

       A.     Yes, that I understood the paper, but I didn’t know what I was doing.

       He testified that he told Detective Garcia he did know what he was doing, that he

was willing to talk to him, that nobody told him what to say, and that Detective Garcia did

not force him to talk. The State’s attorney continued:

       Q.     Mr. Aguilar, if Detective Garcia did not force you to give him a
              statement, would you agree with me that you gave that statement
              voluntarily?

       A.     Yes.

       Q.     And you gave that statement voluntarily after reading [defendant’s
              exhibit 1]?

       A.     Yes.

       Q.     And after telling Detective Garcia that you understood everything in
              [defendant’s exhibit 1]?

       A.     Yes.

       Q.     And in [defendant’s exhibit 1] you told Detective Garcia that you
              understood what your rights were, correct?

       A.     Yes.


                                            12
             ***

      Q.     What I’m asking you is, once you started telling Detective Garcia
             about what had happened earlier that morning between you and Jose
             Mosqueda, at any point in your own mind did you want to stop?

      A.     No.

      Q.     Did you want to tell Detective Garcia what had happened?

      A.     Yes.

      Aguilar testified he voluntarily told Detective Garcia he had hidden the knife and

voluntarily took him to the knife’s location. At no time did he tell Detective Garcia he

wanted to talk to a lawyer. The State’s attorney continued questioning him as follows:

      Q.     Mr. Aguilar, after reading this document, defendant’s exhibit 1, you
             understood what it said, correct?

      A.     No, I didn’t understand—I understand what it was saying, but not what
             it contained.

      Q.     You understand the words?

      A.     Yes, I did understand the words; but I didn’t understand what it
             contained.

      Q.     Well, we talked earlier about the fact that you’re able to read very well
             in Spanish.

      A.     Yes.

      Q.     So then can you explain how it was that you were able to read the
             words and not understand what they meant?

      A.     Well, what had happened, I didn’t know that it was—what happened
             in the morning that day, I didn’t think the same way I’m thinking right
             now.

      Q.     You mean, you weren’t thinking clearly—

      A.     No.


                                            13
      Q.         —because of what had happened earlier in the day?

      A.         Yes.

      Q.         But normally you would be able to understand what it meant, correct?

      A.         Yes.

      Q.         If you were thinking more clearly, correct?

      A.         Yes.

      Aguilar testified that he wanted to tell Detective Garcia what he had done and that

he wanted to confess to him.

B. Testimony of Detective R. L. Garcia

      Detective Garcia testified that while in the interview room, he “went over his

Aguilar’s] Miranda rights in Spanish” and that Aguilar indicated to him that he understood

his rights.8 Detective Garcia identified defendant’s exhibit 1 as the Spanish-language


      8
          W ith respect to the Miranda rights, the State’s attorney questioned Detective Garcia as follows:

      Q.         So you had him read the first paragraph and then you asked him if he understood?

      A.         Yes. I had him read each paragraph or each right, again asked him if he understood
                 it. He indicated with initials in each and every one of them that he did understand.
                 And there is a deal in the bottom there where if says--where he circles and put his
                 initials, do you understand your rights. And then we go a little further down, the date,
                 11/5/06, and the accused m eans Luis Arturo Aguilar. And that is his signature there.

                 ***

      Q.         So in the interview room prior to asking Mr. Aguilar any questions and prior to getting
                 him to speak about the actual crim e that he was being investigated for, did you m ake
                 sure that he was aware or at least he read that he had the right to rem ain silent?

      A.         Yes, he did.

      Q.         And that he had the right not to m ake a statem ent at all and that any statem ent could
                 be used against him at trial?

      A.         Yes, sir.

      Q.         And you were satisfied by the fact that he was able to read that back to you and
                 affirm atively said that he understood it?

                                                      14
A.      Yes.

Q.      And he was able to indicate to you that he understood that he had the right to a
        lawyer?

A.      Yes.

Q.      And that he had a right to this lawyer to be present to advise him prior to and during
        any questioning?

A.      Yes.

Q.      And you were satisfied that Mr. Aguilar understood that if he was unable to em ploy
        a lawyer that he could have a lawyer appointed to advise him prior to and during any
        questioning?

A.      Yes, I was.

Q.      And you were satisfied that Mr. Aguilar understood that he had a right to term inate
        the interview at any tim e?

A.      Yes.

Q.      And you were satisfied that because of the fact that he was able to read these
        statem ents back to you in Spanish and indicate to you that he did understand. Is
        that right?

A.      That’s correct.

Q.      And in addition to indicating verbally that he understood them , he placed his initials
        beside each of those on that docum ent, defense exhibit 1. Is that correct?

A.      That’s correct.

Q.      And in addition to that he was able to read the line that said he understood his rights
        and he circled, si, or yes, and also placed his initials. Is that correct?

A.      That’s correct.

On re-direct exam ination, the State’s attorney asked Detective Garcia:

Q.      Detective G arcia, did you cover all the warnings required under Article 38.22,
        Miranda warnings with the Defendant?

A.      Yes, I did.

Q.      And he indicated to you affirm atively that he understood each of them ?

A.      He did, twice.

Q.      He did so verbally, correct?

A.      Yes.

                                             15
Miranda warnings that he gave to Aguilar. Detective Garcia also testified Aguilar “did not

appear to be under the influence of anything” and that Aguilar was neither coerced,

threatened, nor promised anything in return for his confession. He stated Aguilar never

asked for an attorney and did not ask to terminate the interview. After the interview,

Aguilar agreed to take him to where he had hidden the knife. They went to the crime

scene where Aguilar pointed out the direction he went after the murder. He told Detective

Garcia he had thrown the knife “in a manhole” and took him to the manhole, where the

knife was recovered. After Detective Garcia retrieved the knife, he took Aguilar back to the

interview room. He restarted the videotape and showed Aguilar the knife. Aguilar said it

was the knife he had used in the stabbing.

       After hearing the evidence and counsel’s arguments, the trial court granted the

motion to suppress, stating, “The Court has considered the case law and the statute

involved. The Court is going to grant the motion to suppress.” On May 16, 2007, the trial

court signed the “ORDER ON DEFENDANT’S MOTION TO SUPPRESS,” which stated,

in relevant part: “Based on the evidence presented, the Court finds that the Defendant did

not voluntarily, knowingly, and intelligently waive his rights.”                 No findings of fact or

conclusions of law signed by the trial court were filed in this case.

                                  IV. Applicable Law & Analysis

       Article 38.21 of the code of criminal procedure provides that “[a] statement of an


       Q.     And he did so by placing his initials by each of the rights them selves, correct?

       A.     That’s correct.

       Q.     And also affirm atively by circling yes to the line that said you understand your rights,
              correct?

       A.     That’s correct.

                                                    16
accused may be used in evidence against him if it appears that the same was freely and

voluntarily made without compulsion or persuasion, under the rules hereafter prescribed.”

TEX . CODE CRIM . PROC . ANN . art. 38.21 (Vernon 2005). A defendant may claim his or her

statement was not freely and voluntarily made under several different theories: (1) article

38.22, section 6—general voluntariness;9 (2) Miranda v. Arizona, as expanded in article

38.22, sections 2 and 3; or (3) the Due Process Clause of the Fourteenth Amendment.

Oursbourn v. State, 259 S.W.3d 159, 169 (Tex. Crim. App. 2008). A statement may be

involuntary under one, two, or all three theories. Id.

A. Claims of Involuntariness Under the Due Process Clause and Miranda

         Constitutional due process requires that a confession must have been voluntarily

given before it may be admitted into evidence. Michigan v. Harvey, 494 U.S. 344, 350

(1990); Jackson v. Denno, 378 U.S. 368, 376 (1964); Smith v. State, 779 S.W.2d 417, 427

(Tex. Crim. App. 1989).10 A confession may be involuntary under the Due Process Clause

only when there is police overreaching.11 Oursbourn, 259 S.W.3d at 169; see Alvarado v.


         9
             Section 6 of article 38.22 provides that only “voluntary” statem ents m ay be adm itted. See T EX . C O DE
C R IM . P R O C . A N N . art. 38.22, § 6 (Vernon 2005).

         10
           Echoing this dictate, article 38.23 of the code of crim inal procedure states: “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 Am erica, shall be adm itted in evidence against the
accused on the trial of any crim inal case.” T EX . C OD E C R IM . P R O C . A N N . art. 38.23 (Vernon 2005).

         11
           Statem ents that have been found to be involuntary under Miranda or the Due Process Clause were
collected in Colorado v. Connelly, 479 U.S. 157, 164 n.1 (1986). They involve the crucial elem ent of police
overreaching and involve fact scenarios such as the following: (1) the suspect was subjected to a four-hour
interrogation while incapacitated and sedated in an intensive-care unit. Mincey v. Arizona, 437 U .S. 385
(1978); (2) the suspect, while on m edication, was interrogated for over eighteen hours without food,
m edication, or sleep. Greenwald v. W isconsin, 390 U.S. 519 (1968); (3) the police officers held a gun to the
head of the wounded suspect to extract a confession. Beecher v. Alabama, 389 U.S. 35 (1967); (4) the police
interrogated the suspect interm ittently for sixteen days using coercive tactics while he was held
incom m unicado in a closed cell without windows and was given lim ited food. Davis v. North Carolina, 384
U.S. 737 (1966); (5) the suspect was held for four days with inadequate food and m edical attention until he
confessed. Beck v. Pate, 367 U.S. 433 (1961); (6) the suspect was subjected to five days of repeated
questioning during which police em ployed coercive tactics. Culombe v. Connecticut, 367 U.S. 568 (1961);

                                                         17
State, 912 S.W.2d 199, 211 (Tex. Crim. App. 1999) (noting that a statement is involuntary

under federal due process “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”); see also Connelly, 479 U.S. at 167 (“We hold

that coercive police activity is a necessary predicate to the finding that a confession is not

‘voluntary’ within the meaning of the Due Process Clause of the Fourteenth Amendment.”).

Even if a confession is not the product of a meaningful choice (for example, when it is

made in response to hallucinations or to a private person's threat), it is nonetheless

voluntary within the meaning of the Due Process Clause absent some coercive police

activity.12 Oursbourn, 259 S.W.3d at 169-70 (“Absent police misconduct causally related

to the confession, there is simply no basis for concluding that any state actor has deprived

a criminal defendant of due process of law.”). The Due Process Clause is aimed at

protecting suspects from police overreaching, not at protecting individuals from themselves

or other private actors. Id. The same is true for Miranda rights and waivers that apply to

custodial-interrogation statements. Id. “Miranda protects defendants against government

coercion leading them to surrender rights protected by the Fifth Amendment; it goes no

further than that.” Id. at 170.13


(7) the suspect was held incom m unicado for three days with little food, and the confession was obtained when
officers inform ed him that their chief was preparing to adm it a lynch m ob into the jail. Payne v. Arkansas, 356
U.S. 560 (1958); and (8) the suspect was questioned by relays of officers for thirty-six hours without an
opportunity for sleep. Ashcraft v. Tennessee, 322 U.S. 143 (1944).

        12
           The Suprem e Court m ade this clear in Connelly, when it held that if there is no police coercion or
overreaching, there is no due-process violation–even if a suspect is suffering from chronic schizophrenia and
is in a psychotic state following the “voice of God” at the tim e he confesses. Colorado v. Connolly, 479 U.S.
157, 164 (1986).

        13
          In Connelly, the defendant approached a Denver police officer and said that “he had com e all the
way from Boston to confess to the m urder of Mary Ann Junta, a young girl whom he had killed in Denver
som etim e during Novem ber 1982.” Colorado v. Connolly, 479 U.S. 157, 160 (1986). Unbeknownst to the

                                                       18
         Thus, in deciding whether Aguilar’s statements were involuntary under the Due

Process Clause, it was incumbent on the trial court to determine whether his statements

were given voluntarily or were the product of police overreaching. The essential question

for the trial court to determine was “whether [Aguilar's] will was overborne by the

circumstances surrounding the giving of [the] confession[s],” Dickerson v. United States,

530 U.S. 428, 434 (2000), and our task on appeal is to determine whether the trial court

abused its discretion in resolving that question. Balentine v. State, 71 S.W.3d 763, 768

(Tex. Crim. App. 2002).

                                                      Analysis

         Here, there is no indication either in the videotape or in the testimony at the

suppression hearing that any officer threatened, coerced, or promised Aguilar anything in

exchange for his statements. Nothing in the interaction between Aguilar and Detective

Garcia suggested Aguilar's will was “overborne” by the circumstances surrounding the

statements. During the interviews, Aguilar was not deprived of food, beverage, or the

opportunity to visit the restroom. Upon examining the totality of the circumstances

surrounding the statements, we hold Aguilar’s statements were not the product of police

overreaching. Therefore, the statements were not involuntary under the Due Process

Clause. See Dickerson, 530 U.S. at 434; Oursbourn, 259 S.W.3d at 169; Alvarado, 912

S.W.2d at 211. Accordingly, the trial court abused its discretion in resolving this question

against the State.


police (who scrupulously followed the m andates of Miranda), the defendant was apparently obeying the “voice
of God” which had instructed him “to withdraw m oney from the bank, to buy an airplane ticket, and to fly from
Boston to Denver.” Id. at 161. Even though the evidence showed that the defendant was suffering from
“com m and hallucinations that interfered with his volitional abilities; that is, his ability to m ake free and rational
choices” and “he wasn't capable of m aking a ‘free decision’ to waive his Miranda rights,” his confession was
not involuntary under the Fifth Am endm ent. Id. at 161-64, 169-71.

                                                          19
B. Claims of Involuntariness under Article 38.22

         The Constitution leaves voluntariness claims based on the defendant's state of mind

“to be resolved by state laws governing the admission of evidence.” Oursbourn, 259

S.W.3d at 170. In Texas, that state law is article 38.22 of the code of criminal procedure.

Id. Article 38.22 prohibits 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 waived 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)

(Vernon 2005).

         Article 38.22 is aimed at protecting people from police overreaching. Oursbourn,

259 S.W.3d at 172. But section 6 of that article may also be construed as protecting

people from themselves because the focus is upon whether the accused voluntarily made

the statement. Id. Inquiries about whether a statement was freely and voluntarily made

without compulsion or persuasion,14 or, in the case of a custodial-interrogation statement,

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

article 38.22, sections 2(a)15 or (3)(a),16 do not turn solely on police overreaching.


        14
          Article 38.21 of the code of crim inal procedure provides, “A statem ent of an accused m ay be used
in evidence against him if it appears that the sam e was freely and voluntarily m ade without com pulsion or
persuasion, under the rules hereafter prescribed.” T EX . C OD E C RIM . P R O C . A N N . art. 38.21 (Vernon 2005)..

         15
              Section 2 of article 38.22 provides:

                    No written statem ent m ade by an accused as a result of custodial
                    interrogation is adm issible as evidence against him in any crim inal
                    proceeding unless it is shown on the face of the statem ent that:

                    (a) the accused, prior to m aking the statem ent, either received from a
                    m agistrate the warning provided in Article 15.17 of this code or received
                    from the person to whom the statem ent is m ade a warning that:



                                                        20
Oursbourn, 259 S.W.3d at 172. The behavior of the police may or may not be a factor.

Id. A confession given under the duress of hallucinations, illness, medications,17 or even

a private threat, for example, could be involuntary under articles 38.21 and 38.22.18 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;19 (2) the suspect

was mentally retarded and may not have “knowingly, intelligently and voluntarily” waived




                    (1) he has the right to rem ain silent and not m ake any statem ent at all and
                    that any statem ent he m akes m ay be used against him at his trial; (2) any
                    statem ent he m akes m ay 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 em ploy 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 term inate the interview at any tim e; and (b) the
                    accused, prior to and during the m aking of the statem ent, knowingly,
                    intelligently, and voluntarily waived the rights set out in the warning
                    prescribed by Subsection (a) of this section.

T EX . C OD E C R IM . P R O C . A N N . art. 38.22, § 2 (Vernon 2005).

         16
              Section 3(a) of article 38.22 provides:

                    No oral or sign language statem ent of an accused m ade as a result of
                    custodial interrogation shall be adm issible against the accused in a crim inal
                    proceeding unless . . . (2) prior to the statem ent 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. . . .

T EX . C OD E C R IM . P R O C . A N N . art. 38.22, § 3 (Vernon 2005).

         17
          See, e.g., Rocha v. State, 16 S.W .3d 1, 19-20 (Tex. Crim . App. 2000) (providing that the trial court's
general jury instruction under articles 38.21 and 38.22 concerning voluntariness of statem ent sufficed for jury
to consider any evidence of his illness and m edication; no error in denying instruction that specifically
m entioned illness and m edication as that would be a com m ent on the weight of the evidence).

         18
          This has long been the case in Texas. See Cain v. State, 18 Tex. 387, 389-90 (1857) (“Before
confessions can be received in evidence in a crim inal case, it m ust be shown that they were voluntary. They
m ust not have been obtained by the influence of hope or fear, applied by a third person to the prisoner's
m ind.”).

         19
              Rocha v. State, 16 S.W .3d 1, 20 (Tex. Crim . App. 2000).

                                                              21
his rights;20 (3) the suspect “lacked the mental capacity to understand his rights;”21 (4) the

suspect was intoxicated, and he “did not know what he was signing;”22 and (5) the suspect

was confronted by the brother-in-law of his murder victim and beaten.23

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

the discretion to believe Aguilar’s testimony that he did not understand his Miranda rights

because he was not thinking clearly at the time he read them and indicated to Detective

Garcia that he understood them. The court also had the discretion to disbelieve Detective

Garcia’s testimony that Aguilar understood his rights. However, the videotape established

that before Aguilar made his incriminating statements, Detective Garcia gave him the

Miranda rights in Spanish on a pre-printed form, that Aguilar read the rights, and that he

indicated he understood his rights. Aguilar then proceeded without hesitation to answer

Detective Garcia’s questions.

        The videotape also showed Aguilar:                   (1) was coherent; (2) understood what

Detective Garcia was saying to him; (3) was thinking clearly; (4) wanted to talk to Detective

Garcia about how he had stabbed Mosqueda; (5) was calm and cooperative, not sleepy,



        20
          Bell v. State, 582 S.W .2d 800, 812 (Tex. Crim . App. 1979); Casias v. State, 452 S.W .2d 483, 488
(Tex. Crim . App. 1970).

        21
           Rogers v. State, 549 S.W .2d 726, 729-30 (Tex. Crim . App. 1977) (finding reversible error in trial
court's refusal to give jury general instruction on voluntariness of statem ent when evidence raised an issue
that defendant lacked the m ental capacity to understand and waive his rights before giving his statem ent).

        22
           In Ritchie v. State, 164 Tex. Crim . 38, 296 S.W .2d 551, 554 (Tex. Crim . App. 1956), the evidence
was undisputed that the defendant was intoxicated, but the trial judge found that he was not so intoxicated
that he could not understand what he was doing. Id. Therefore, the trial judge “instructed the jury not to
consider the [statem ent] unless they believed beyond a reasonable doubt that, prior to m aking the statem ent,
the appellant was duly warned, and that thereafter he voluntarily and freely m ade the sam e and understood
and signed it.” The court of crim inal appeals held that the trial court did not err in adm itting the evidence and
instructing the jury as he did. Id.; see also Foster v. State, 101 S.W .3d 490, 497 (Tex. App.–Houston [1st
Dist.] 2002, no pet.) (noting that “[l]ack of sleep for as long as 16 hours does not, in and of itself, render a
confession involuntary,” and that “a person's illiteracy alone will not necessarily render his statem ent
inadm issible”).

        23
             Hamin v. State, 47 S.W . 656 (Tex. Crim . App. 1898).

                                                       22
or confused; and (6) never asked to speak with an attorney or to terminate the interviews.

Moreover, the evidence does not show that Aguilar could not understand his rights

because he was ill or on medication, mentally disabled, “lacked the mental capacity to

understand his rights,” intoxicated, or under the influence of drugs. Thus, nothing in the

videotape showed that at the time Detective Garcia gave Aguilar his Miranda rights, he did

not knowingly, intelligently, and voluntarily waive them.

       Furthermore, Aguilar testified at the suppression hearing that he wanted to confess

to Detective Garcia and that he voluntarily confessed to him. Pursuant to article 38.22,

section 5, nothing prevents admission of a statement that is either: (1) res gestae of the

arrest or offense; (2) a statement that does not stem from custodial interrogation; or (3) a

voluntary statement, whether or not the result of custodial interrogation. TEX . CODE CRIM .

PROC . ANN . art. 38.22, § 5 (Vernon 2005) (emphasis added); see Turner, 252 S.W.3d at

583.

       It is undisputed that Aguilar failed to expressly waive his rights; however, we hold

Aguilar implicitly waived his rights. In Barfield v. State, the court of criminal appeals held

Texas’s oral-confession statute does not require an express verbal statement from the

accused that he waived his rights prior to giving the statement. Barfield v. State, 784

S.W.2d 38, 40-41 (Tex. Crim. App. 1989), overruled on other grounds, Zimmerman v.

State, 860 S.W.2d 89 (Tex. Crim. App. 1993). The Barfield court determined “that in

reaching the voluntariness of a confession, [we should look] at the totality of the

circumstances.” Id. at 41.

       Thus, based on the totality of the circumstances, we conclude that Aguilar

knowingly, intelligently, and voluntarily waived his rights as required by article 38.22. See

Hargrove v. State, 162 S.W.3d 313, 318-19 (Tex. App.–Fort Worth 2005, pet. ref’d) (finding


                                             23
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, 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).

       Under a constitutional challenge, the answer is the same. A lack of an express

waiver by Aguilar of his Miranda rights does not, standing alone, render the oral confession

inadmissible. Turner, 252 S.W.3d at 584. Rather, waiver is to be judged based upon the

totality of the circumstances. Id. Again, based upon the totality of the circumstances, we

hold Aguilar validly waived his rights under the United States and Texas Constitutions.

       Therefore, we hold the trial court abused its discretion in granting the motion to

suppress.

                                        V. Conclusion

       We sustain the State’s sole issue, reverse the order suppressing Aguilar’s

videotaped statements, and remand the case to the trial court for further proceedings

consistent with this opinion.




                                                  ROSE VELA
                                                  Justice

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

Memorandum Opinion delivered and
filed this 6th day of November, 2008.




                                             24
