                        COURT OF APPEALS
                         SECOND DISTRICT OF TEXAS
                              FORT WORTH

                             NO. 02-10-00464-CR


JOSE ANGEL SARMIENTO                                              APPELLANT

                                       V.

THE STATE OF TEXAS                                                     STATE


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           FROM THE 271ST DISTRICT COURT OF WISE COUNTY

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                        MEMORANDUM OPINION1

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                                I. INTRODUCTION

      In two points, Appellant Jose Angel Sarmiento appeals his convictions for

capital murder and attempted capital murder. We will affirm.

                                II. BACKGROUND

      Sarmiento entered Bettie Walker’s residence early in the morning on

December 18, 2005, and shot her; Lydia Walker, Bettie’s granddaughter; and


      1
       See Tex. R. App. P. 47.4.
Jessica Corsbie, Lydia’s friend.    Bettie died from complications caused by a

gunshot wound to her chest, but Lydia and Jessica, who were each shot in the

leg, survived. Police questioned Sarmiento immediately after the shootings but

released him. When authorities obtained a warrant for Sarmiento’s arrest, they

learned that he had gone to Mexico, where he remained until he returned to the

United States and was arrested in May 2009.              Sarmiento confessed to

investigators that he shot Bettie, Lydia, and Jessica. The trial court automatically

sentenced Sarmiento to life imprisonment upon his conviction for capital murder,

and the jury assessed his punishment at life imprisonment for the attempted

capital murder conviction.

                      III. INVOCATION OF RIGHT TO COUNSEL

      In his first point, Sarmiento argues that the trial court erred by admitting

incriminating physical evidence that police obtained as a result of statements that

Sarmiento made after he clearly invoked his right to counsel during custodial

interrogation. Sarmiento also appears to contend that the trial court erred by

allowing the State to question an investigator about statements that Sarmiento

made during the interview but after he invoked his right to counsel.

      When a suspect asks for a lawyer, interrogation must cease until counsel

has been provided or the suspect initiates further communication with the police.

Edwards v. Arizona, 451 U.S. 477, 484–85, 101 S. Ct. 1880, 1885 (1981). But

not every mention of a lawyer will invoke the right to the presence of counsel

during questioning; the suspect must unambiguously request counsel. Davis v.


                                         2
United States, 512 U.S. 452, 459, 114 S. Ct. 2350, 2355 (1994); State v. Gobert,

275 S.W.3d 888, 892 (Tex. Crim. App. 2009). The test is objective: did the

suspect sufficiently clearly articulate his desire to have counsel present such that

a reasonable police officer in the circumstances would understand the statement

to be a request for an attorney. Davis v. State, 313 S.W.3d 317, 339 (Tex. Crim.

App. 2010), cert. denied, 132 S. Ct. 122 (2011).         When reviewing alleged

invocations of the right to counsel, we look to the totality of the circumstances

surrounding the interrogation, as well as the alleged invocation, to determine

whether a suspect’s statement can be construed as an actual invocation of his

right to counsel. Dinkins v. State, 894 S.W.2d 330, 351 (Tex. Crim. App. 1995).

      The record demonstrates that investigators located Sarmiento soon after

the shootings occurred, transported him to the police department, and

questioned him regarding his whereabouts that night.            Investigators read

Sarmiento his Miranda rights, and Sarmiento signed a card waiving those rights.

During the questioning, Sarmiento consented to a search of his residence, and

authorities later found a hooded sweatshirt that he had worn earlier in the night

and that matched Lydia Walker’s description of the clothing worn by the person

responsible for the shootings. At trial, Texas Ranger Dwayne Dockery testified

about an exchange that he had with Sarmiento during the interview regarding

Sarmiento’s mentioning an attorney:

             Q.    Now, he did mention an attorney at one point, did he
      not?



                                         3
      A.     Yes, sir.

      Q.     Tell the jury what he said.

      A.      Well, at one point during the questioning, I asked the
Defendant about obtaining a GSR test on him, which is a gunshot
residue test.

            And at that point he said that he might need to talk to an
attorney before he did that.

      Q.     All right. Specifically, that test?

      A.     Yes, sir.

     Q.    Now, did you -- did you really want a gunshot residue
sample from him?

      A.     No, sir.

      Q.     So why did you talk to him about it?

      A.     I wanted to see what his response was going to be.

      Q.     And why . . . were you not really . . . interested . . . in
doing that test at that point?

      A.     Because I knew, based on my experience and training,
that due to the amount of time that had lapsed since this offense had
occurred, that we would not be able to get any results from that
GS -- gunshot residue test.

      Q.     All right. So you just wanted to see how he reacted to
it?

      A.     Yes, sir.

       Q.    And his response to you was, well, maybe I should talk
to a lawyer before I do that?




                                    4
            A.     Correct.2

      Sarmiento’s statement that he “might” need to talk to an attorney or that he

“maybe” should talk to a lawyer was not a clear and unambiguous request for

counsel requiring the investigators’ questioning to terminate. See Davis, 512

U.S. at 462, 114 S. Ct. at 2357 (holding that petitioner’s remark—“Maybe I

should talk to a lawyer”—was not a request for counsel); Dinkins, 894 S.W.2d at

351–52 (holding that appellant’s statement—“Maybe I should talk to someone”—

was not an invocation of right to counsel).      At most, it was an ambiguous

statement that he might want to speak to an attorney. The trial court did not err

by permitting the State to question Ranger Dockery about Sarmiento’s

statements made throughout the entire interview on December 18, 2005.

      Even if Sarmiento’s statement could somehow be construed as an

unambiguous request for counsel, (1) the State did not seek to admit the hooded

sweatshirt, and nonetheless, (2) physical evidence discovered as a result of a

statement made in violation of Miranda, or “fruit of the poisonous tree,” must only

be suppressed if the statement was made through actual police coercion. See

Baker v. State, 956 S.W.2d 19, 22 (Tex. Crim. App. 1997) (“We have held that

where evidence obtained as a result of an interrogation has not been used, the

appellate court need not entertain a complaint attacking admissibility of that

evidence.”); id. at 22–23 (“We hold that the Tucker/Elstad rule applies to the


      2
      Sarmiento does not challenge Ranger Dockery’s recollection of the
conversation.

                                        5
failure to scrupulously honor the invocation of Miranda rights. In the absence of

actual coercion, the fruits of a statement taken in violation of Miranda need not

be suppressed under the ‘fruits’ doctrine of Wong Sun.”); see also In re H.V., 252

S.W.3d 319, 327–29 (Tex. 2008) (explaining same). Sarmiento does not argue

that he was coerced during the December 18, 2005 interview with investigators.

Accordingly, we overrule Sarmiento’s first point.

                              IV. JURY INSTRUCTION

      In his second point, Sarmiento argues that the trial court erred by failing to

give an article 38.23(a) “specific” voluntariness instruction addressing statements

made by Texas Ranger James Holland, “[i]nasmuch as [they] . . . might have

been construed as bearing on [Sarmiento’s] voluntariness to return to the United

States, or to provide a statement to Ranger Holland after he arrived.”

      In our review of a jury charge, we first determine whether error occurred; if

error did not occur, our analysis ends. See Abdnor v. State, 871 S.W.2d 726,

731–32 (Tex. Crim. App. 1994); see also Sakil v. State, 287 S.W.3d 23, 25–26

(Tex. Crim. App. 2009).

      In Oursbourn v. State, the court of criminal appeals thoroughly addressed

the issue of jury instructions relevant to the voluntariness of a defendant’s

confession.   259 S.W.3d 159, 169–79 (Tex. Crim. App. 2008).             The court

explained that there are three types of instructions under Texas statutory law that

relate to the taking of confessions: (1) a “general” article 38.22, section 6

voluntariness instruction; (2) a “general” article 38.22, section 7 warnings


                                         6
instruction (referring to the warnings under article 38.22, sections 2 and 3); and

(3) a “specific” article 38.23(a) exclusionary-rule instruction. Id. at 173; see Tex.

Code Crim. Proc. Ann. art. 38.22, §§ 2, 3, 6 & 7, art. 38.23(a) (West 2005). Due

process and Miranda claims—involving police overreaching and coercion—may

warrant both “general” and “specific” voluntariness instructions, while Texas

statutory involuntariness claims—which may implicate the defendant’s state of

mind—warrant only a “general” voluntariness instruction.           Oursbourn, 259

S.W.3d at 174. A “specific” exclusionary-rule instruction concerning the making

of a confession is warranted only when police activity involves inherently coercive

practices like those set out in Colorado v. Connelly, 479 U.S. 157, 163 & n.1, 107

S. Ct. 515, 520 & n.1 (1986).3      Oursbourn, 259 S.W.3d at 178.        There are,

however, three requirements to trigger an article 38.23(a) instruction: (1) the

evidence heard by the jury must raise an issue of fact, (2) the evidence of fact

must be affirmatively contested, and (3) the contested factual issue must be

material to the lawfulness of the challenged conduct in obtaining the statement

claimed to be involuntary. Id. at 177. “This factual dispute can be raised only by

affirmative evidence, not by mere cross-examination questions or argument.” Id.




      3
       The Court referenced the following as inherently coercive practices:
“defendant subjected to 4-hour interrogation while incapacitated and sedated in
intensive-care unit”; “defendant, on medication, interrogated for over 18 hours
without food or sleep”; “police officers held gun to the head of wounded
confessant to extract confession”; “16 days of incommunicado interrogation in
closed cell without windows, limited food, and coercive tactics.” Connelly, 479
U.S. at 163 n.1, 107 S. Ct. at 520 n.1.

                                         7
      The trial court gave the jury a combined “general” article 38.22, section 6

and section 7 voluntariness instruction, which Sarmiento does not challenge, and

stated as follows:

             The court has admitted into evidence before you the alleged
      oral statement of the defendant, and you are instructed that before
      you may consider the same for any purpose you must first believe
      from the evidence beyond a reasonable doubt that the same was
      freely and voluntarily made by the defendant without compulsion or
      persuasion and that prior thereto the defendant had been warned by
      the person to whom the statement was made that:

            (1) he had the right to remain silent and not make any
      statement at all and that any statement he made may be used
      against him at trial; and

            (2) any statement he made may be used as evidence against
      him in court; and

             (3) he had the right to have a lawyer present to advise him
      prior to and during any questioning; and

            (4) if he was unable to employ a lawyer, he had the right to
      have a lawyer appointed to advise him prior to and during any
      questioning; and

             (5) he had the right to terminate the interview at any time;

      and that the defendant prior to and during the making of the
      statement, knowingly, intelligently and voluntarily waived these
      rights; but if you do not so believe, or if you have a reasonable doubt
      thereof, then the alleged statement is entirely withdrawn from your
      consideration and you shall not give the same any force or effect
      whatever or consider it as any evidence of the defendant’s guilt in
      this case, and you shall not consider any evidence obtained as a
      result thereof, if any.




                                         8
But the trial court denied Sarmiento’s requested “specific” article 38.23(a)

instruction, which he set out as follows:

      You are instructed that under our law a confession or statement of a
      defendant is to be considered as valid evidence only if it appears
      that the same was freely and voluntarily made without compulsion,
      coercion or persuasion. So, if you find from the evidence in this
      case or if you have a reasonable doubt that prior to the giving of the
      statement by the defendant, if he did give one, any officer
      threatened to cause the Defendant’s family to be harm[ed] or in any
      manner coerced the defendant or used any improper influence on
      the defendant, and the defendant, through fear or under duress or
      under any other improper influence was hereby induced to give or
      sign said statement, then such statement would not be freely made
      and voluntary, and in such case, you will wholly disregard the
      alleged confession or statement and not consider it for any purpose.
      Additionally, you will disregard and not consider for a[n]y purpose
      any evidence obtained directly or indirectly as a result of the
      involuntary statement or confession. [Emphasis added.]

Sarmiento states that this requested instruction “pointed to the facts in the trial

that might have been found coercive by the jury.” He contends,

             Ranger Holland admitted that he [appealed] to Appellant’s
      emotions to get him to talk. Holland told Appellant on the telephone
      that there was a reward for his arrest while Appellant was in Mexico,
      that there were bounty hunters, and the Ranger had no control over
      those people. Ranger Holland told Appellant’s family similar things
      in order to get Appellant to come back to the United States. [Record
      references omitted.]

      Ranger Dockery testified that he turned his investigation over to Texas

Ranger James Holland in 2008. Ranger Holland testified that his primary goal

was to locate Sarmiento, interview him, and bring him back to the United States.

For over a year and a half, Ranger Holland “tried multiple approaches to bring”

Sarmiento back to the United States, including running Crime Stoppers



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advertisements and contacting multiple government agencies. At some point,

Ranger Holland made contact with Sarmiento’s sister, who gave him a phone

number to contact Sarmiento. Ranger Holland called the phone number and

spoke to Sarmiento. Over the course of several conversations, Ranger Holland

told Sarmiento that there were warrants out for his arrest, that he would be

arrested once he entered the United States, and that he needed to return to the

United States if he wanted to prove his innocence. Ranger Holland testified that

as a trained interrogator, he employs different approaches when working with

suspects and that in this case, “Sarmiento wanted to be coddled. And I stepped

into that role as the caregiver; the mother, the father he never had; who was

there to listen to him. You know, he was done wrong, and I needed to help him,

and that’s the role that I stepped into.” Regarding rewards that had been offered

for Sarmiento’s return, Ranger Holland testified,

      I told him that there [were] rewards out for him. And that I had
      absolutely no control over Mexican authorities, over anyone who
      would answer these rewards in the paper; bounty hunters, road
      police officers, you know, federales. I had no control over who came
      after him and when they came after him.

              And I did tell him that, you know, the only concrete piece of
      information that we have about him is location, where his mother
      lives. And I said, you know, you really need to think about your
      family, and think about your mom, because these people are going
      to go [to] your mother. And they’re going to, you know, set up
      surveillance. And they’re going to pick her up time and time again
      until they locate you.




                                        10
The following exchange then occurred on cross-examination:

           Q.     Okay. I’m just curious as to how you were able to
     convince [him] to -- to come back and walk across the bridge, so you
     could put him in jail?

                 What did you say to him?

           A.    Multiple conversations, but I don’t know --

                Like I said before, I don’t really know that there was so
     much convincing going on. I think that he honestly wanted to come
     over here.

                 I was surprised.

            Q.    Did he tell you that he was concerned about the safety
     of his family?

           A.    Yes; he did.

          Q.    And did you say anything to him to make him be
     concerned about his family?

           A.    Did I say I was going to threaten his family?

                 No.

           Q.    No.

           A.     Did I say that I had control of people that would be
     looking for him in Mexico?

           Q.    Yeah.

          A.    I told him I had no control with anyone who worked in
     Mexico, the Mexican authorities, or any agents of the Mexican
     government.

            Q.    Did you tell him that there was -- there either was a
     reward, or there was going to be a reward put up for his return dead
     or alive?

           A.    No.
                                      11
            He -- He was told, and I’m sure that he was aware that
there was a reward for his arrest.

             Did I ever make the statement that it was dead or alive
reward; no, I didn’t.

        Q.     Did you tell him that you wouldn’t be a bit surprised if
the drug cartel down there, or some of their operatives might injure
or kill his child and wife while they were looking for him?

        A.   No; I didn’t say that.

           There [were] comments made about who would be a
bounty hunter, and who would look for him in situations like that.
And he was -- it was described to him that I had no control of those
people. And that there . . . was a monetary reward for his arrest.

        Q.   Did you --

             You did make those comments, though, to him?

        A.   Exactly.

       Q.    You told him that you didn’t have any control, and his
family might get hurt if he didn’t come back?

      A.    I made the comment that I had no control over the world
that was out there. And I had no control over the people who may or
may not locate him.

     Q.     But you don’t see that as any type of coercion on the
Defendant to come up there and say what you wanted him to say?

        A.   There’s a reward for his arrest?

       Q.     No; I’m talking about the fact his wife and child might be
killed or hurt.

        A.   I didn’t tell him that his wife and child may be killed or
hurt.

             Could he have come to that conclusion on his own?


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                   Yes.

                   Would that have been a legitimate conclusion?

                   Mexico is a rough place; it could have been.

            Q.   The statements you made, was that your purpose for
      him to come to that conclusion?

            A.     My purpose was for him to come back to the United
      States of his own free will.

      The only witness who testified on behalf of Sarmiento was his sister. She

testified that Ranger Holland told her that there would be a reward for Sarmiento

if he did not return to the United States, that the cartels in Mexico were “really

bad right now,” and that she was concerned for Sarmiento’s safety because the

cartels would “kill whoever they have to kill to get the money.”

      The record does not demonstrate that Ranger Holland implemented the

type of coercive police tactics referenced in Connelly as part of his attempts to

convince Sarmiento to return to the United States or to give a statement

admitting guilt. There is no fact issue, and indeed no evidence, that Ranger

Holland—or someone at his insistence—threatened Sarmiento in any way.

Accordingly, we hold that the trial court did not err by denying Sarmiento’s

requested article 38.23(a) “specific” voluntariness instruction.    We overrule

Sarmiento’s second point.




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                               V. CONCLUSION

      Having overruled both of Sarmiento’s points, we affirm the trial court’s

judgments.




                                                BILL MEIER
                                                JUSTICE

PANEL: GARDNER, MCCOY, and MEIER, JJ.

DO NOT PUBLISH
Tex. R. App. P. 47.2(b)

DELIVERED: May 3, 2012




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