      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                      NO. 03-04-00271-CR



                                     Robert Alba, Appellant

                                                 v.

                                  The State of Texas, Appellee


     FROM THE DISTRICT COURT OF TRAVIS COUNTY, 331ST JUDICIAL DISTRICT
         NO. 9044021, HONORABLE WILLIAM E. BENDER, JUDGE PRESIDING



                            MEMORANDUM OPINION


               Robert Alba appeals from his conviction by a jury for the offense of injury to a child

with serious bodily injury and an affirmative finding of use of a deadly weapon during the

commission of the offense. See Tex. Pen. Code Ann. § 22.04 (West Supp. 2006). Alba argues that

the district court erred by failing to suppress his videotaped confession. We hold that the district

court properly admitted the confession and affirm the conviction.



                                        BACKGROUND

               On November 20, 2002, Alba and his girlfriend, Olivia Monica Nino, took their

seven-week-old son to the emergency room after his babysitter informed them that she noticed that

their son’s leg was swollen. At the time, Nino and Alba were not married but were living together

with both of their sons. The child’s doctor discovered that the child had a fractured femur, an
unusual injury for a seven-week-old child. The doctor took a series of x-rays that revealed at least

ten additional bone fractures, including broken ribs and a fractured skull, in various stages of healing.

Based on these results, Child Protective Services and the child abuse unit of the Austin Police

Department (APD) began an investigation to determine how the injuries occurred and if the child

was living in a safe environment. After the initial investigation, the child was removed from Nino

and Alba’s care and placed with Nino’s parents.

                The next day, Nino and Alba contacted APD to talk with Detective Taylor, the

detective assigned to their case. They decided to meet Taylor at his office the same day to discuss

the case. After arriving at the office, Taylor advised Alba of his rights and told him that he was free

to go at any time; Alba waived his rights and spoke with Taylor. During the interview, Alba told

Taylor that he accidently injured his child. He stated that he was holding his child as he stood up,

tripped over a toy, and fell with the child. After the interview concluded, Alba and Taylor made

arrangements to have a second interview.

                On December 2, 2002, Detective Stephenson joined Taylor to interview Alba. Taylor

and Stephenson informed Alba that he was not in custody and that he was free to leave at any time.

Alba then waived his rights and began the interview. During the interview, Alba stated that he had

caused his child’s injuries by squeezing him, shaking him, and repeatedly shoving him against the

wall. He also demonstrated these actions on a doll in the interview room. Alba was subsequently

charged with causing serious bodily injury to a child. Alba pleaded not guilty and filed a motion to

suppress the videotape of his statement during the second interview. The district court held a pretrial

hearing, overruled Alba’s motion, and allowed the videotaped statement to be admitted at trial. A



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jury found Alba guilty and assessed his punishment at twelve years in the Institutional Division of

the Texas Department of Criminal Justice. This appeal followed.


                                           DISCUSSION

                Alba contends that the district court erred in failing to suppress the videotaped

confession because the detectives (1) were threatening and coercive and (2) made

improper promises.

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

standard of review.      Carmouche v. State, 10 S.W.3d 323, 327 (Tex. Crim. App. 2000);

Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim. App. 1997). We will apply a deferential review

of the trial court’s determination of the historical facts and a de novo review of the law’s application

to those facts. See Carmouche, 10 S.W.3d at 327. When the trial court’s rulings do not turn on the

credibility and demeanor of the witnesses, we review de novo a trial court’s rulings on mixed

questions of law and fact. Johnson v. State, 68 S.W.3d 644, 652-53 (Tex. Crim. App. 2002).

                A statement made by the accused may be used in evidence against him if it appears

that it was freely and voluntarily made without compulsion or persuasion. Tex. Code Crim. Proc.

Ann. art. 38.21 (West Supp. 2006); State v. Terrazas, 4 S.W.3d 720, 723 (Tex. Crim. App. 1999).

Whether the accused’s statement is voluntary is determined from all the circumstances surrounding

his making the statement. See Penry v. State, 903 S.W.2d 715, 748 (Tex. Crim. App. 1995), cert.

denied, 516 U.S. 977 (1995). A statement is not voluntary if there is “official, coercive conduct of

such a nature that any statement obtained thereby was unlikely to have been the product of an




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essentially free and unconstrained choice by its maker.” Alvarado v. State, 912 S.W.2d 199, 211

(Tex. Crim. App. 1995).

Coercive and Threatening Statements

               First, Alba claims that his statement was not voluntary because Taylor and

Stephenson were threatening and coercive during his interview. Specifically, Alba contends that

Taylor and Stephenson told him that (1) “if you’re not telling it truthful, we can’t protect the child”;

(2) “if you don’t want us to help you, we’re here to take the child”1; (3) “[w]e’re going to do

everything we can to you—to make sure the court punishes you to the fullest extent”; and

(4) “[t]hese kids need to be with their parents. [Their mother is] going to lose them—they’re not

going to have either of you.”

               At trial, Alba filed a supplemental motion to suppress his videotaped statement.

During the suppression hearing, Taylor testified that Alba attended the interview of his own free will

and was free to leave at any time. The district court denied the motion and entered findings of fact

and conclusions of law. The court found that (1) Alba was not in custody and had not previously

been arrested in relation to this case when he made the statements in question, (2) the statement was

made freely and voluntarily, (3) the police did not engage in any conduct that was so coercive in

nature that Alba’s free will was overborne, (4) the police did not threaten Alba with any physical

harm, and (5) the police did not make any promises that were of such an influential nature that Alba



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          Although Alba insists that the officer stated, “if you don’t want us to help you, we’re here
to take the child,” our review of the video reveals that the officer said “if you don’t want us to help
you, we’re here to protect the child.”

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would speak untruthfully. The court concluded that the videotaped statement was admissible as a

matter of law and fact.

               The record supports the district court’s findings that Alba was not in custody when

the statements were made. The video of the interview shows that, as soon as Alba entered the

interrogation room, Taylor and Stephenson told him that the door was open and unlocked. Although

they read him his rights, they reminded him that he could terminate the interview and leave at any

time. Alba then waived his rights and began the interview.

               The record also supports the district court’s findings that Alba’s statement was made

voluntarily, that the police did not engage in conduct so coercive that it overcame Alba’s free will,

and that the police did not threaten Alba. The video demonstrates that Alba confessed approximately

thirty minutes after the interview started. During the interview, Taylor and Stephenson never yelled

at Alba, never physically threatened him, and never made an improper statement of the law.

Considering the allegedly improper statements in light of the all the surrounding circumstances, none

of the statements were of such a coercive or threatening nature as to make Alba’s confession

involuntary. Further, although the officers made statements attempting to make Alba feel guilty or

remorseful, none of these statements were so coercive that Alba’s free will would have been

overwhelmed. Because the record supports the district court’s determination that Alba made the

statement freely and voluntarily, we conclude that the district court properly admitted Alba’s

confession into evidence. Accordingly, we overrule Alba’s first point.

Promises

               Second, Alba contends that his confession was not voluntary because he was

influenced by promises made to him by Taylor. Toward the end of the interview, Taylor said, “We’ll

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help you with the court. We’ll talk to the District Attorney about it, because we’ll tell them

you are cooperative.”

               It is unnecessary for us to consider whether the officer’s statements were improper.

For a promise to render a confession involuntary, the promise must be (1) of some benefit to the

defendant, (2) positive, (3) made or sanctioned by a person in authority, and (4) of such character

as would be likely to influence the defendant to speak untruthfully. Henderson, 962 S.W.2d at 564.

The allegedly improper statements were made after Alba confessed to injuring his son on more than

one occasion and after Alba had demonstrated on a doll how he had injured the child, and Alba made

no additional inculpatory statements after the officer made the statements in question. Therefore,

the officer’s statements did not persuade him to confess. Accordingly, we overrule Alba’s

second point of error.


                                            CONCLUSION

               Because we overrule all of Alba’s issues on appeal, we affirm the judgment of

conviction entered by the district court.



                                              ____________________________________

                                              David Puryear, Justice



Before Chief Justice Law, Justices Patterson and Puryear

Affirmed

Filed: November 29, 2006

Do Not Publish

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