                            NUMBER 13-13-00307-CR

                           COURT OF APPEALS

                 THIRTEENTH DISTRICT OF TEXAS

                    CORPUS CHRISTI – EDINBURG

ROEL ALVALREZ LOPEZ,                                                 Appellant,

                                         v.

THE STATE OF TEXAS,                                                   Appellee.


                   On appeal from the 206th District Court
                         of Hidalgo County, Texas.


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

      A jury found appellant Roel Alvarez Lopez (“Lopez”) guilty of the offense of murder,

a first degree felony, and sentenced him to thirty-seven years’ imprisonment in the Texas

Department of Criminal Justice—Institutional Division.     See TEX. PENAL CODE ANN.

§ 19.02 (West, Westlaw through 2015 3d R.S.). By two issues, Lopez contends that (1)
the trial court erred in failing to suppress evidence that he claims constituted the fruit of

statements that he made during an allegedly illegal police interrogation, and (2) he was

deprived of effective assistance of counsel. We affirm.

                                     I.     Background

       Cecilia Escamilla found her brother, the decedent, dead at home on the evening

of Sunday, December 4, 2011. The San Juan Police Department opened an investigation

into his death that night. The next day, an anonymous tipster gave the police the name

of "Roli Lopez who lived in Alamo." Lopez became the focus of their investigation.

       On the morning of Wednesday, December 7, 2011, the police went to Lopez’s

home and informed him about their investigation. After a brief exchange, the police

handcuffed and transported Lopez to the police station for further questioning. According

to Lopez and his mother, as the police escorted him away, he asked his mother to call his

lawyer. The police officers denied hearing this request. Shortly after the police brought

him into custody, Lopez’s mother retained two attorneys to assist him.

       When Lopez arrived at the police station on Wednesday morning, officers

questioned him concerning his whereabouts on the previous Sunday. The initial interview

was not recorded. However, according to the police, Lopez signed a written waiver of his

Miranda rights. Lopez did not recall signing this waiver and claimed that he requested an

attorney. According to the police, during this unrecorded interview, Lopez identified three

individuals that could account for his whereabouts on Sunday: Jennifer Gonzales, Danny

Anguiano, and Joel Gonzalez.

       Approximately two hours into questioning, but still during Wednesday morning, the

police obtained access to a video camera and began recording the interview. Lopez



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appeared in handcuffs. The police did not read Lopez his Miranda rights at the start of

the video. The police offered Lopez a bottle of water and gave him an opportunity to take

a cigarette break. The police also indicated that they could arrange to have Lopez’s

mother bring him some food if he was hungry, but Lopez declined. Although Lopez had

a splint on his finger, he did not indicate the need for medical attention. The interview

continued for the remainder of the morning with several breaks in questioning.           At no

point during the recorded interview did Lopez request to speak to an attorney.

       Throughout the recorded interview, Lopez consistently denied any involvement in

the decedent’s death; he again referenced Jennifer Gonzales, Danny Anguiano, and Joel

Gonzalez; and he offered an alibi that consisted of him being at home during a certain

time frame on the previous Sunday. However, when Lopez’s alibi did not match up with

information that his family members provided concerning his whereabouts on Sunday,

the police began to suspect that Lopez was not telling the truth. The police then asked

Lopez whether it would be appropriate to charge his family members with filing a false

report in light of the fact that the information they provided did not match up with his story.

Despite what the police believed to be inconsistencies in his alibi, Lopez maintained his

innocence throughout the interview.

       Over the next two days, Lopez remained in custody. The attorneys that Lopez’s

mother hired went to the police station to visit with Lopez on Thursday and Friday, but the

authorities did not allow them access to Lopez. According to Lopez, during this time, the

police put him in a cell with hostile individuals, refused his requests to see his attorneys,

threatened to arrest his family, and did not feed him.




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       By Friday afternoon, Lopez informed the police that he wanted to confess. After

Lopez indicated that he wanted to confess, the police fed him a plate of barbeque. After

finishing his food, Lopez confessed that he shot the decedent with a gun. Lopez’s

confession was recorded and reduced to writing.             Thereafter, Lopez was charged with

capital murder.

       After Lopez confessed, the police contacted Jennifer Gonzales, Danny Anguiano,

and Joel Gonzalez—the three individuals who Lopez identified during his initial interview.

After contacting these individuals, the police obtained additional incriminating evidence

against Lopez, which, in relevant part, included the following: (1) their statements that

tended to connect Lopez to the crime; (2) the murder weapon, which Lopez borrowed

from Joel Gonzalez at a barbeque on the evening of the murder; and (3) several personal

items belonging to the decedent and his family, which Lopez gave to Jennifer Gonzalez

after the murder.

A. Suppression Hearing

       Prior to trial, Lopez moved to suppress his written and oral statements at the police

department arguing the police interrogated him illegally. Specifically, Lopez argued that

the police obtained his statements (1) by ignoring his request for counsel in violation of

his Miranda rights, and (2) by using coercive tactics to get him to talk (and eventually

confess) in violation of his due process right to be free from coercion under the Fourteenth

Amendment. In addition to his statements, Lopez sought to suppress any statement that

Jennifer Gonzales, Danny Anguiano, and Joel Gonzalez provided to the police, and any

physical evidence that the police obtained through them.1                 Lopez argued that this


       1  At the suppression hearing, Lopez clarified that his motion to suppress sought to exclude the
following evidence:

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evidence was inadmissible under the fruit of the poisonous tree doctrine due to the

allegedly illegal police interrogation.

       Midway through the suppression hearing, the State made an important

announcement to the trial court; the State announced that it did not intend to introduce

any statement that Lopez gave to the police.2 The State explained that it elected not to

introduce Lopez’s statements out of a concern that the police had not complied with

certain statutory requirements pursuant to Texas Code of Criminal Procedure article

38.22. See TEX. CODE CRIM. PROC. ANN. art. 38.22 (West, Westlaw through 2015 3d R.S.)

(providing, as a prerequisite to admissibility, that the accused’s statement capture the

reading and waiver of his Miranda rights).

       With the admissibility of Lopez’s statements no longer at issue, the focus of the

suppression hearing turned to the question of whether the fruit of the poisonous tree

doctrine applied to exclude the statements of Jennifer Gonzales, Danny Anguiano, and

Joel Gonzalez, and the physical evidence that the police obtained through them. The

State argued:




       What I’m asking the Court to suppress is the statements made by Joel [Gonzalez], whose
       identity came through what we classify as illegal questioning of Mr. Lopez. So they learn
       of Joel [Gonzalez], his statements and any physical evidence that was gathered as a result.

       Daniel Anguiano, which I think the State agrees that if Daniel Anguiano is inadmissible,
       then so are everybody else that was at that barbeque essentially because they learned of
       those people through Daniel Anguiano and they learned of Daniel Anguiano through Mr.
       Lopez.

       And Jennifer Gonzalez, who they also learned from Mr. Lopez. And then any subsequent
       physical evidence that they gathered through them.

       So it’s just all evidence that stems from those individuals.

       2  The excluded statements consisted of Lopez’s videotaped interview on Wednesday and his
written and videotaped confession on Friday.

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       [T]hat evidence should not be suppressed because, what we’re saying is
       that there were statutory requirements that were not met, which would make
       the oral statements, the recordings inadmissible, which is an evidentiary
       rule. However, the exclusionary rule does not apply to this situation
       because there were no Constitutional violations that would allow the ‘fruit of
       the poisonous tree’ doctrine to apply to this situation. So the taint for the
       original oral statements made by the Defendant does not carry to the
       evidence that was obtained as a result of those statements.

       Citing Baker v. State, the State clarified that the fruit of the poisonous tree doctrine

did not apply unless there was actual police coercion. 956 S.W.2d 19, 23 (Tex. Crim.

App. 1997) (holding that “[i]n the absence of actual [police] coercion, the fruits of a

statement taken in violation of Miranda need not be suppressed under the ‘fruits’

doctrine”). Lopez agreed with this articulation of the law but argued that the fruits of his

statements should be suppressed because the police used coercion to get him to talk.

       To resolve this issue, it appears that the trial court determined, and the parties

agreed, that the focus of the suppression hearing should center on the circumstances

surrounding Lopez’s detention on his first day in custody when Lopez told the police about

Joel Gonzalez, Daniel Anguiano, and Jennifer Gonzalez.

       At the conclusion of the suppression hearing, the trial court orally (1) granted

Lopez’s motion to suppress as to his statements, and (2) denied his motion to suppress

as to the fruits of his statements. The trial court did not enter findings of fact and

conclusions of law for its ruling.

                                     II.   Motion to Suppress

       By his first issue, Lopez argues that suppression of his statements also required

suppression of the fruits of his statements because the police violated (1) his Miranda

right to counsel, and (2) his due process right to be free from police coercion.




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   A. Standard of Review

       We review a trial court’s decision on a motion to suppress for an abuse of

discretion. Crain v. State, 315 S.W.3d 43, 48 (Tex. Crim. App. 2010). In a motion to

suppress hearing, the trial court is the “sole trier of fact and judge of the credibility of the

witnesses and the weight to be given their testimony.” State v. Ross, 32 S.W.3d 853, 855

(Tex. Crim. App. 2000). As such, the trial court may “believe or disbelieve all or any part

of a witness's testimony, even if that testimony is not controverted.” Id. This is so because

it is “the trial court that observes first hand the demeanor and appearance of a witness[.]”

Id. On appeal, we should afford “almost total deference to a trial court's determination of

the historical facts that the record supports especially when the trial court's fact findings

are based on an evaluation of credibility and demeanor.” Guzman v. State, 955 S.W.2d

85, 89 (Tex. Crim. App. 1997). We should also afford the same amount of deference to

the “trial court's rulings on ‘application of law to fact questions,’ also known as ‘mixed

questions of law and fact,’ if the resolution of those ultimate questions turns on an

evaluation of credibility and demeanor.” Id. Finally, we conduct a de novo review where

“the resolution of mixed questions of law and fact do not turn on an evaluation of credibility

and demeanor.” Id.

       When, as here, the trial court rules on a defendant's motion to suppress without

entering findings of fact, we must view the evidence “in the light most favorable to the trial

court's ruling” and “assume that the trial court made implicit findings of fact that support

its ruling as long as those findings are supported by the record.” Ross, 32 S.W.3d at 855.

The trial judge's decision will be sustained if it is correct on any theory of law applicable

to the case. Id.



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   B. Applicable Law

       i.     Sources of Law

       Lopez’s first issue requires a review of three sources of law: (1) the Miranda rule;

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

the due process clause. First, the Miranda rule secures the Fifth Amendment right against

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

subject to police questioning receive the following warnings: “that he has a right to remain

silent, that any statement he does make may be used as evidence against him, and that

he has a right to the presence of an attorney, either retained or appointed.” Miranda v.

Arizona, 384 U.S. 436, 444 (1966). Second, the Texas confession statute implements

the Miranda rule by requiring, among other things, that the accused’s statement be either

written or recorded and contain a reading of the Miranda warnings, along with the

accused’s waiver thereof. TEX. CODE CRIM. PROC. ANN. art. 38.22.

       Third, the due process clause of the Fourteenth Amendment requires that an

accused’s statement be voluntary and not the product of police coercion. See Armstrong

v. State, 718 S.W.2d 686, 693 (Tex. Crim. App. 1985). To determine whether the

circumstances render an accused’s statement coerced and involuntary, courts look at

whether his will was “overborne” by police coercion. Id. Courts look to the totality of the

circumstances surrounding the statement in making this determination. Id. (citing Davis

v. North Carolina, 384 U.S. 737 (1966)). Relevant circumstances include the “length of

detention, incommunicado or prolonged detention, denying a family access to a

defendant, refusing a defendant's request to telephone a lawyer or family member, and

physical brutality.” Id. When the issue is raised, the State must prove voluntariness by



                                             8
a preponderance of the evidence. Juarez v. State, 409 S.W.3d 156 (Tex. App.—Houston

[1st Dist.] 2013 pet. ref’d).

       ii.     Exclusionary Remedy

       A statement taken in violation of any one of these three sources of law is

inadmissible; however, only a violation of the third source of law—the due process right

against police coercion—entitles the accused to suppression of the fruits of his statement.

See United States v. Patane, 542 U.S. 630, 634–44 (2004) (plurality opinion); Chavez v.

Martinez, 538 U.S. 760, 769 (2003); see also Baker, 956 S.W.2d at 22–24 (citing Michigan

v. Tucker, 417 U.S. 433, 448–49 (1974)); In re H.V., 252 S.W.3d 319, 329 (Tex. 2008);

Contreras v. State, 312 S.W.3d 566, 583 (Tex. Crim. App. 2010); State v. Cruz, No. PD-

0082-14, 2015 WL 2236982, at *6 (Tex. Crim. App. May 13, 2015). “In determining

whether evidence is inadmissible as fruit of the poisonous tree, the critical issue is

whether the evidence was gained by exploitation of an illegality.” Graham v. State, 964

S.W.2d 738, 741 (Tex. App.—Beaumont 1998) (citing Wong Sun v. United States, 371

U.S. 471 (1963)), aff'd, 994 S.W.2d 651 (Tex. Crim. App. 1999).

   C. Analysis

       1. Miranda Claim

       Lopez argues that the trial court erred in failing to suppress the fruits of his

statements because the police violated his Miranda right to counsel. However, as noted

above, the exclusionary remedy for a Miranda violation is limited to suppression of

Lopez’s statements—not the fruits of his statements. See Patane, 542 U.S. at 634; see

also Baker, 956 S.W.2d at 23–24; In re H.V., 252 S.W.3d at 329; Contreras, 312 S.W.3d

at 583. Thus, assuming without deciding that the police violated Lopez’s Miranda rights,



                                            9
we cannot conclude that the trial court abused its discretion in following well-settled law

by refusing to suppress the fruits of his statements.3 See Ross, 32 S.W.3d at 855.

        2. Police Coercion Claim

        We now turn to Lopez’s second argument that the trial court erred in failing to

suppress the fruits of his statements because the police obtained them through coercion.

Unlike his Miranda claim, this claim entitled Lopez to suppression of the fruits of his

statements if there was “actual [police] coercion.” See Baker, 956 S.W.2d at 23; see also

Armstrong, 718 S.W.2d at 693. We afford almost total deference to the trial court’s ruling

on this issue because it involved a mixed question of law and fact, which turned on an

evaluation of credibility and demeanor. See Garcia v. State, 15 S.W.3d 533, 535 (Tex.

Crim. App. 2000); Guzman, 955 S.W.2d at 89. Because the trial court did not enter written

findings of fact, we must view the evidence in the light most favorable to its ruling. See

Ross, 32 S.W.3d at 855. We must also assume that the trial court made implicit findings

of fact in support of its ruling as long as those findings are supported by the record. Id.

Finally, we must affirm the trial court’s ruling if it is correct on any theory of law applicable

to the case. Id.


        3 Lopez argues that the Texas exclusionary rule should apply to exclude physical evidence derived
from Miranda violations because things have changed since the last time the court of criminal appeals took
up the issue in Baker v. State, 956 S.W.2d 19, 23 (Tex. Crim. App. 1997). Specifically, Lopez points out
that in 2000, after the court of criminal appeals decided Baker, the Supreme Court in Dickerson abandoned
its characterization of Miranda as a prophylactic rather than a constitutional rule. See Dickerson v. United
States, 530 U.S. 428, 444 (2000) (concluding that Miranda announced a constitutional rule that Congress
may not supersede legislatively). Lopez argues that Dickerson’s characterization of Miranda as a
constitutional rule calls for a reassessment of Baker’s holding, which was premised on a view that Miranda
announced a prophylactic rule. We disagree. Four years after Dickerson was decided, the Supreme Court
in Patane clarified that Dickerson did not change the rule that physical evidence is admissible even if gained
from questioning that violates Miranda. See United States v. Patane, 542 U.S. 630, 643 (2004) (plurality
opinion). Furthermore, in 2008, the Texas Supreme Court echoed this holding in the context of a juvenile
proceeding. See In re H.V., 252 S.W.3d 319, 328 (Tex. 2008) (holding that “violations of Miranda do not
justify exclusion of physical evidence resulting therefrom”). Thus, in light of Patane and In re H.V., and
without binding authority to the contrary, we decline Lopez’s invitation to reassess Baker’s holding.


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        Guided by this standard of review, the record supports the trial court’s implied

finding that Lopez identified Jennifer Gonzales, Danny Anguiano, and Joel Gonzalez

during his initial interview with the police, which took place on the morning of his first day

in custody. Lopez does not argue that his will was overborne by police coercion during

this initial interview. Instead, to establish police coercion, Lopez points to evidence—

disputed by the State—that occurred after his initial interview. Specifically, Lopez argues

that the police detained him for approximately three days, put him in a cell with hostile

individuals, denied him access to his lawyers and family members, deprived him of food,

and threated to arrest his family.4 The State responds that these circumstances, even if

true, are irrelevant because Lopez made the fruit-producing statements during his initial

interview, and he does not argue that the police obtained those statements through

coercion. We agree with the State.

        The critical issue for purposes of applying the fruits doctrine is whether the police

obtained the fruits at issue by exploiting Lopez’s right to be free from coercion—i.e., by

exploiting an alleged illegality. See Graham, 964 S.W.2d at 741; see also Wong Sun,

371 U.S. at 471. With this in mind, the trial court could have reasonably determined that

Lopez’s will was not overborn by police coercion during his initial interview—i.e., the fruit-

producing interview; therefore, the fruits doctrine did not apply to exclude the fruits of

Lopez’s statements because the police could not have obtained that evidence by

exploiting an illegality. Id. Furthermore, Lopez provides no legal authority to support a

contrary position. Viewing the evidence in the light most favorable to its ruling, we cannot


        4 We note that this evidence was not without dispute, as the trial court was faced with conflicting

testimony from several witnesses at the suppression hearing regarding the deprivations Lopez claimed to
have suffered.


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conclude that the trial court erred in implicitly finding that Lopez’s fruit-producing

statements were voluntary and not the product of police coercion. See Ross, 32 S.W.3d

at 855. We therefore overrule Lopez’s first issue.

                                            III.     Conclusion5

    We affirm the judgment of the trial court.

                                                           /s/ Rogelio Valdez
                                                           ROGELIO VALDEZ
                                                           Chief Justice

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

Delivered and filed the
25th day of June, 2015.




        5 By his second issue, Lopez contends that, if his first issue was not preserved for appellate review,
it was only because his trial counsel provided ineffective assistance by waiving the issue when he stated
“no objection” as the State introduced the evidence that his motion to suppress unsuccessfully sought to
exclude. Having already addressed the merits of Lopez’s first issue, we have assumed, without deciding,
that counsel’s “no objection” statement did not waive his earlier-preserved claim. See Thomas v. State,
408 S.W.3d 877, 881 (Tex. Crim. App. 2013) (indicating that if it is clear from the record as a whole that the
defendant did not intend to waive an earlier-preserved claim of error, then the claim has not been waived
and should be resolved on the merits). We do so being guided by Texas Rule of Appellate Procedure
47.1, which requires that we “hand down a written opinion that is as brief as practicable but that addresses
every issue raised and necessary to final disposition of the appeal.” See TEX. R. APP. 47.1.

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