Opinion
NUMBER 13-14-00634-CR
03-23-2017
FRANCISCO CAZARES, Appellant, v. THE STATE OF TEXAS, Appellee.
On appeal from the 92nd District Court of Hidalgo County, Texas.
MEMORANDUM OPINION
Before Justices Contreras, Longoria, and Hinojosa
Memorandum Opinion by Justice Hinojosa
Appellant Francisco Cazares appeals his conviction for murder, a first-degree felony. See TEX. PENAL CODE ANN. § 19.02 (West, Westlaw through 2015 R.S.). A jury found appellant guilty and assessed punishment at fifty years' imprisonment in the Texas Department of Criminal Justice-Institutional Division and a $10,000 fine. By four issues, appellant argues: (1) he was entitled to a mistrial due to improper jury argument by the State; (2) the trial court abused its discretion in overruling appellant's Rule 401 and 403 objections; (3) the trial court erred in denying appellant's motion to suppress his written statement; and (4) appellant was denied his right to a fair trial due to the cumulative effect of the trial court's errors. We affirm.
I. BACKGROUND
Appellant was indicted for the murder of Daniel Serrano, who died from a single gunshot wound to the head while visiting appellant's residence in Hidalgo County. At trial, several witnesses testified concerning an altercation between Daniel and appellant that resulted in Daniel's death.
In this memorandum opinion, we refer to the victim and those witnesses sharing a surname by their first names to avoid confusion.
Julia Serrano, Daniel's mother, testified she was visiting appellant's house with Daniel and Daniel's grandmother. They were there for an overnight visit to see Daniel's children, who were residing with appellant and his mother. Appellant's sister, Daniel's estranged wife and the children's mother, also resided in the home. The three arrived early that morning and spent the day with Daniel's children. Later that evening, appellant invited friends and neighbors over for a cookout. Shortly after going to bed around 11:45 p.m., Julia heard screaming. She went outside and observed Daniel and appellant arguing "face to face." Julia then got in between them and tried to calm Daniel down. She stated that the two were insulting each other, when several of appellant's friends started punching Daniel. Julia tried to remove Daniel from the altercation, but he was able to get away from her and continued fighting. During the altercation, Julia saw appellant hit Daniel on the head with a gun. Julia moved Daniel toward the street in front of the home, when she heard appellant say "take him because I'll kill him." Julia then saw appellant fire several shots toward the ground. When she was in the middle of the street, Julia heard appellant's voice to her right and then a loud explosion. She then fell to the ground with Daniel, who was bleeding from a gunshot wound. Julia testified that appellant bent down and attempted to place a knife in Daniel's hand before standing up and kicking him.
Daniel's grandmother, Maria Canales, was also present during the altercation. She testified that she saw Julia and Daniel in the street when appellant stated "leave or I'll kill you." Canales then heard a "loud humming or buzzing sound" and observed Julia and Daniel fall to the ground. Canales stated that appellant then kicked Daniel.
Appellant's mother, Maria Cazares, testified that there was a party that night, and "guns were being shot in the backyard." Maria recalled that Daniel went outside and was insulting appellant and his friends. Maria stated appellant tried to slap Daniel. She then observed Daniel fighting with appellant and his friends. Maria told Julia to leave with Daniel because he would not calm down. She heard Daniel say that he was going to "kill everybody." Maria stated that Julia was able to move Daniel to the street when he was shot.
Appellant's friend Jesus Mireles Jr. was invited to appellant's house for a cookout. Jesus stated that those attending the party were drinking alcohol, and that he and appellant were shooting guns. Jesus recalled that appellant and Daniel began arguing in the front yard and started to fight. He heard appellant tell Daniel that he needs to pay child support and that Daniel needed to leave. Jesus stated that Daniel then started fighting with everybody. Jesus saw Julia move Daniel toward the street when appellant began shooting at the ground telling Daniel to leave. Jesus then went to his car where he heard another shot and saw Daniel fall to the ground.
Alejandro Mireles was also present that night. Alejandro testified that he did not remember everything that happened because he was "drunk." Alejandro stated that everybody started fighting, and appellant fired multiple warning shots and told Daniel to leave. Alejandro heard appellant tell Daniel he should be thankful appellant was helping his kids. Alejandro then went to his car where he heard another shot followed by screaming.
Ervin Alvarez testified that he was invited to appellant's house for a barbecue. Alvarez recalled "hanging out" in the back of the house where people were drinking and firing weapons. Alvarez stated that appellant was known to carry a handgun. Later, Alvarez heard appellant and Daniel arguing. Alvarez stated multiple individuals began fighting with Daniel. Alvarez saw appellant fire his gun at the ground multiple times, but he did not witness appellant shoot Daniel.
Mary Cazares, Daniel's estranged wife and appellant's sister, testified she did not witness Daniel being shot because she was in her car. Mary stated that appellant often carried a gun on his person.
Hidalgo County Sheriff's deputy Maclovio Alaniz was on patrol when he received a call for a "man-down" in the middle of the street. Deputy Alaniz arrived at the location and observed a "male subject" on the ground. A woman told Deputy Alaniz that appellant shot her son. Deputy Alaniz approached appellant and handcuffed him. Appellant then told Deputy Alaniz that he shot Daniel in self-defense because he lunged at him with a knife. Appellant informed Deputy Alaniz that his mother took the firearm inside the house.
Fernando Tanguma, a Hidalgo County Sheriff's Office investigator, was called to the Mission area to investigate a report of "man down, shots fired." Officer Tanguma discovered bullet casings in the front yard and a folding knife near the street. He also observed a sign on the property that read "No Trespassing. Violators will be shot. Survivors will be shot again!!!" The sign prominently depicted an image of "an AK-47[,] an assault rifle," as identified by Officer Tanguma. A photograph and video of the crime scene depicting the sign were later admitted into evidence. Officer Tanguma learned through his investigation that appellant owned a sign-making business and was previously the victim of a home invasion.
Alfredo Avila, a Hidalgo County Sheriff's Office investigator, testified that he received a call at 1:30 a.m. advising him to report to the sheriff's office to question appellant. At the outset of the interrogation, Officer Avila advised appellant of his Miranda rights, which appellant acknowledged and waived in writing. At the end of the interrogation, Officer Avila presented a typed statement to appellant, which appellant reviewed and signed. In the written statement, appellant explained he was having a "cookout outside our home." He invited some friends and neighbors to attend. Appellant stated everyone was drinking beer and shooting assault rifles in the backyard. He also stated that "I always carry a .40 caliber handgun for protection." Appellant explained that he was the victim of a home invasion in the past, so he decided to carry a handgun for protection.
See Miranda v. Arizona, 384 U.S. 436 (1966).
Later that evening, appellant heard Daniel yelling at appellant's friends "I'm going to kill you all." Appellant told Daniel to calm down. He also told Daniel "if he cared much about his kids, he should pay them child support." Appellant recalled that Daniel then "swung at me with his left hand." Appellant then pulled his handgun from his waistline, pulled the slide back, and loaded a bullet into the chamber. He fired two rounds into the ground and told Daniel to leave. Appellant's friends tried to hold Daniel back, but he was able to punch one of them. Then Daniel was fighting with multiple individuals. Appellant stated that Daniel's mother got in the middle of the altercation and started pushing Daniel toward the street. Appellant then fired three more rounds into the ground. Appellant recalled seeing Daniel make a sudden move toward appellant's brother, and he saw something shiny in Daniel's hand. Appellant then approached Daniel and attempted to push him with his right hand, with which he was also holding his gun. Appellant stated he shot Daniel somewhere on his upper chest or neck area. Appellant claimed that he was trying only to push Daniel with his hand, but the gun went off by accident. Appellant then walked toward Daniel and saw a pocket knife lying on the ground. Appellant stated he could not recall if he placed the knife in Daniel's hand.
At trial, appellant testified that he was only trying to push Daniel with his hand, but he did not intend to shoot Daniel. The jury returned a guilty verdict. This appeal followed.
II. JURY ARGUMENT
By his first issue, appellant argues "[t]he trial court committed error in not granting a mistrial due to improper argument from the State." Specifically, appellant maintains the State improperly commented on the range of punishment for the offense of manslaughter during the guilt-innocence phase of trial.
A. Standard of Review and Applicable Law
A mistrial is required only in extreme circumstances where the prejudice is incurable. Ocon v. State, 284 S.W.3d 880, 884 (Tex. Crim. App. 2009). Prejudice is incurable when it "is of such character as to suggest the impossibility of withdrawing the impression produced on the minds of the jurors." Ladd v. State, 3 S.W.3d 547, 567 (Tex. Crim. App. 1999). We review the trial court's denial of a motion for mistrial for an abuse of discretion, viewing the evidence in the light most favorable to the trial court's ruling, and considering only those arguments before the court at the time of the ruling. Id. We must uphold the ruling if it was within the zone of reasonable disagreement. Ocon, 284 S.W.3d at 884.
Permissible jury argument must fall within one of the following four general areas: (1) summation of the evidence; (2) reasonable deduction from the evidence; (3) answer to argument of opposing counsel; or (4) plea for law enforcement. Felder v. State, 848 S.W.2d 85, 94-95 (Tex. Crim. App. 1992). It is improper to discuss ranges of punishment during the guilt-innocence stage of a trial involving two or more offenses because it encourages the jury to convict on the basis of the amount of punishment, rather than the facts supporting guilt. McClure v. State, 544 S.W.2d 390, 393 (Tex. Crim. App. 1976). However, the harm from such remarks generally will be cured by an instruction to disregard, unless the statements were so manifestly improper as to inflame and prejudice the minds of the jury. Id. B. Application
During closing argument, the attorney for the State stated as follows: "Let me give you an apology and it was reckless. I did it recklessly. So give me the two to 10 for manslaughter." Appellant objected that the State's comment on punishment was improper, and the trial court sustained the objection. Appellant later moved for a mistrial but did not request any lesser form of relief such as a curative instruction. A mistrial is an appropriate remedy in "extreme circumstances" for a narrow class of highly prejudicial and incurable errors. Ocon, 284 S.W.3d at 884. "Because it is an extreme remedy, a mistrial should be granted 'only when residual prejudice remains' after less drastic alternatives are explored." Id. at 884-85 (quoting Barnett v. State, 161 S.W.3d 128, 134 (Tex. Crim. App. 2005)). An instruction to disregard is a corrective measure because it attempts to cure any harm or prejudice resulting from events that have already occurred. Young v. State, 137 S.W.3d 65, 69 (Tex. Crim. App. 2004). In a case where the prejudice is curable, an instruction eliminates the need for a mistrial and serves to conserve judicial resources. Id. A party who fails to request an instruction to disregard forfeits appellate review of events that could have been cured by such an instruction. Id. at 70.
We agree that the prosecutor's comment on the sentencing range for manslaughter was improper, and that the trial court properly sustained appellant's objection. However, the reference to punishment was fleeting and isolated. An instruction to disregard is typically a sufficient measure to cure the prejudice resulting from an isolated reference to the sentencing range. See Kinnamon v. State, 791 S.W.2d 84, 89 (Tex. Crim. App. 1990), overruled on other grounds by Cook v. State, 884 S.W.2d 485, 491 (Tex. Crim. App. 1994) (noting that "an instruction by the court to disregard a comment will normally obviate the error" (citations omitted)); Bruton v. State, 921 S.W.2d 531, 535-36 (Tex. App.—Fort Worth 1996, pet. ref'd) (concluding that that the prosecutor's abbreviated reference to punishment was cured by the trial court's instruction to disregard); see also Granger v. State, No. 01-05-00352-CR, 2006 WL 1223516, at *4 (Tex. App.—Houston [1st Dist.] May 4, 2006, pet. ref'd) (mem. op., not designated for publication) (same). Because appellant failed to request a curative instruction, he has not preserved this issue for appellate review. See Young, 137 S.W.3d at 69; McGinn v. State, 961 S.W.2d 161, 165 (Tex. Crim. App. 1998) (explaining that to preserve error on appeal if a trial court sustains an objection concerning an improper jury argument, the complaining party must additionally request an instruction to disregard if such an instruction could cure the prejudice). We overrule appellant's first issue.
We further note that the jury charge contained the following instruction: "You should not discuss or consider punishment for the offense charged for any purpose. You must concern yourselves solely with the question of guilt or innocence of the Defendant under these written instructions without regard to any possible punishment imposed by law for the offense charged." We presume the jury followed the trial court's instructions to not consider punishment. See Gamboa v. State, 296 S.W.3d 574, 580 (Tex. Crim. App. 2009).
III. ADMISSIBILITY OF EVIDENCE
By his second issue, appellant argues "the trial court committed error in admitting an irrelevant and overly prejudicial depiction." See TEX. R. EVID. 401, 403. Specifically, appellant maintains the trial court should have sustained appellant's objections to testimony and depictions of a sign on appellant's property which stated "No Trespassing. Violators will be shot. Survivors will be shot again!!!" The sign also contained an image of an assault rifle. The State responds that the evidence was admissible under article 38.36 of the code of criminal procedure because it tended to show the condition of the mind of the accused at the time of the offense. See TEX. CODE CRIM. PROC. ANN. art. 38.36 (West, Westlaw through 2015 R.S.).
A. Standard of Review and Applicable Law
We review the trial court's decision to admit or exclude evidence for an abuse of discretion. Davis v. State, 329 S.W.3d 798, 803 (Tex. Crim. App. 2010); Martinez v. State, 327 S.W.3d 727, 736 (Tex. Crim. App. 2010). Under this standard, we do not disturb the trial court's decision if the ruling was within the zone of reasonable disagreement. Davis, 329 S.W.3d at 803; Bigon v. State, 252 S.W.3d 360, 367 (Tex. Crim. App. 2008); see Montgomery v. State, 810 S.W.2d 372, 378-79 (Tex. Crim. App. 1990) (op. on reh'g). We will uphold an evidentiary ruling on appeal if it is correct on any theory of law that finds support in the record. Gonzalez v. State, 195 S.W.3d 114, 126 (Tex. Crim. App. 2006).
Evidence is relevant if it has "any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence." TEX. R. EVID. 401. Article 38.36 of the code of criminal procedure provides in part that, "[i]n all prosecutions for murder, the state or the defendant shall be permitted to offer testimony as to . . . all relevant facts and circumstances going to show the condition of the mind of the accused at the time of the offense." TEX. CODE CRIM. PROC. ANN. art. 38.36(a). Evidence admitted under article 38.36 is still subject to exclusion under Rules 403 and 404(b) of the Rules of Evidence. Smith v. State, 5 S.W.3d 673, 679 (Tex. Crim. App. 1999).
Under Rule 404(b), "[e]vidence of other crimes, wrongs or acts is not admissible to prove the character of a person in order to show action in conformity therewith." TEX. R. EVID. 404(b). Appellant did not object to the evidence of the trespassing sign under Rule 404(b), and does not raise the argument on appeal.
Relevant evidence may be inadmissible under Rule 403 if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, misleading the jury, considerations of undue delay, or needless presentation of cumulative evidence. Casey v. State, 215 S.W.3d 870, 879 (Tex. Crim. App. 2007); see TEX. R. EVID. 403. Rule 403 favors the admission of relevant evidence and carries a presumption that relevant evidence is more probative than prejudicial. Jones v. State, 944 S.W.2d 642, 652 (Tex. Crim. App. 1996). Unfair prejudice does not mean simply that the evidence injures the opponent's case. Rogers v. State, 991 S.W.2d 263, 266 (Tex. Crim. App. 1999). "Rather[,] it refers to 'an undue tendency to suggest decision on an improper basis, commonly, though not necessarily, an emotional one.'" Id. (quoting Cohn v. State, 849 S.W.2d 817, 820 (Tex. Crim. App. 1993)).
The Rule 403 balancing factors include, but are not limited to, the following: (1) the probative value of the evidence; (2) the potential to impress the jury in some irrational, yet indelible, way; (3) the time needed to develop the evidence; and (4) the proponent's need for the evidence. Hernandez v. State, 390 S.W.3d 310, 324 (Tex. Crim. App. 2012); Shuffield v. State, 189 S.W.3d 782, 787 (Tex. Crim. App. 2006). The trial court is presumed to have engaged in the required balancing test under Rule 403 once a party objects on that ground and rules on the objection, unless the record indicates otherwise. See Williams v. State, 958 S.W.2d 186, 195-96 (Tex. Crim. App. 1997). The party opposing admission of the evidence bears the burden to demonstrate that the danger of unfair prejudice substantially outweighs the probative value. See Kappel v. State, 402 S.W.3d 490, 494 (Tex. App.—Houston [14th Dist.] 2013, no pet.).
B. Analysis
Assuming without deciding that the no-trespassing sign was at least minimally relevant, see TEX. R. EVID. 401, we conclude that the probative value of the evidence was substantially outweighed by the danger of unfair prejudice. See TEX. R. EVID. 403.
1. Probative Value
The first factor "asks how compellingly the evidence serves to make a fact of consequence more or less probable." Manning v. State, 114 S.W.3d 922, 927 (Tex. Crim. App. 2003). Here, the "fact of consequence" is whether appellant shot Daniel intentionally. The obvious intent of the sign's language is to deter potential trespassers. The record also reflects that appellant was previously the victim of a home invasion. Daniel was appellant's brother-in-law, and appellant had known him for years. Daniel was not trespassing at the time of the shooting. Rather, he was visiting his children who resided with appellant. Therefore, the sign has very little probative value concerning whether appellant shot Daniel intentionally. This factor weighs in favor of exclusion.
2. Potential to Impress Jury in Irrational Way
Rule 403 does not exclude all prejudicial evidence, only evidence that is unfairly prejudicial. State v. Mechler, 153 S.W.3d 435, 440 (Tex. Crim. App. 2005). Evidence is unfairly prejudicial when it has a "tendency to tempt the jury into finding guilt on grounds apart from proof of the offense charged." Id. The language used in the sign references an intent to shoot trespassers. This message is reinforced by a large depiction of an assault weapon. We further note that the sign depicts images of a bullet-hole to represent the "o" in the word "shot." Introduction of the sign in this case carries the risk that the jury would reach a decision out of antipathy for appellant rather than the merits of the State's evidence. This risk is illustrated by the State's argument to the jury "I think it's important to look at who would make a sign like that." This factor weighs in favor of exclusion.
3. Time Needed to Develop the Evidence
"Evidence that consumes an inordinate amount of time to present or answer, for example, might tend to confuse or distract the jury from the main issues." Casey, 215 S.W.3d at 880. The time spent introducing evidence pertaining to the sign was minimal. The witnesses' testimony on this issue constituted less than a page of a multi-volume reporter's record. This factor weighs in favor of admissibility.
4. Proponent's Need for the Evidence
In addressing this factor, we consider the following: "Does the proponent have other available evidence to establish the fact of consequence that the [evidence] is relevant to show? If so, how strong is that other evidence? And is the fact of consequence related to an issue that is in dispute?" Erazo v. State, 144 S.W.3d 487, 495-96 (Tex. Crim. App. 2004) (citing Montgomery, 810 S.W.2d at 390). Whether appellant shot Daniel intentionally was an issue that was in dispute. However, the State presented evidence that appellant told Daniel he would kill him if Daniel did not leave. There was testimony that appellant attempted to place a knife in Daniel's hand after the shooting. The jury was also presented with inconsistent statements from appellant concerning whether he shot Daniel in self-defense or by accident. The State's other available evidence was much stronger than the no-trespassing sign on the issue of whether the shooting was intentional. This factor weighs in favor of exclusion.
5. Summary
Considering all of the factors, we conclude that the trial court abused its discretion in determining that the sign's probative value was not substantially outweighed by the danger of unfair prejudice. See TEX. R. EVID. 403; Davis, 329 S.W.3d at 803; see also Alexander v. State, 88 S.W.3d 772, 778 (Tex. App.—Corpus Christi 2002, pet. ref'd) (concluding that the probative value of a .357 Magnum seized from the residence of a murder suspect was substantially outweighed by the danger of unfair prejudice, where the weapon was unrelated to the murder). Having found error, we must now conduct a harm analysis.
C. Harm
Error in the admission of evidence is non-constitutional error. See TEX. R. APP. P. 44.2(b); Barshaw v. State, 342 S.W.3d 91, 93 (Tex. Crim. App. 2011); Jabari v. State, 273 S.W.3d 745, 754 (Tex. App.—Houston [1st Dist.] 2008, no pet.). We disregard any non-constitutional error that does not affect a defendant's substantial rights. Barshaw, 342 S.W.3d at 93. "A substantial right is affected when the error had a substantial and injurious effect or influence in determining the jury's verdict." Jabari, 273 S.W.3d at 754 (citing Morales v. State, 32 S.W.3d 862, 867 (Tex. Crim. App. 2000)). We should not reverse a conviction for non-constitutional error if, after examining the record as whole, we have "fair assurance that the error did not influence the jury, or had but a slight effect." See id. (citing Johnson v. State, 967 S.W.2d 410, 417 (Tex. Crim. App. 1998)).
In making this determination, we consider the entire record, including any testimony and physical evidence admitted for the jury's consideration, the nature of the evidence supporting the verdict, the character of the alleged error, and how it might be considered in connection with other evidence in the case. Haley v. State, 173 S.W.3d 510, 518 (Tex. Crim. App. 2005); Motilla v. State, 78 S.W.3d 352, 355-56 (Tex. Crim. App. 2002). The weight of evidence of the defendant's guilt is relevant in conducting the harm analysis under Rule 44.2(b). Neal v. State, 256 S.W.3d 264, 285 (Tex. Crim. App. 2008); Motilla, 78 S.W.3d at 356-57. We may also consider the closing statements and voir dire, jury instructions, the State's theory, any defensive theories, and whether the State emphasized the alleged error. Motilla, 78 S.W.3d at 355-56.
We have already concluded that the evidence was prejudicial. However, we do not believe that the evidence affected appellant's substantial rights in light of the State's limited focus on the sign and the overwhelming evidence of appellant's guilt. See id. at 356-57. Only one witness explicitly commented on the language of the sign, and the State made two fleeting references to the sign in closing argument. Further, appellant's trial counsel effectively cross-examined the State's witness concerning the limited significance of the sign.
This is illustrated by the following excerpt from appellant's cross-examination of Officer Tanguma, which took place after the State was permitted to introduce evidence relating to the sign:
Q. Okay. Is it against the law to post a sign like that?
A. No, it's not.
Q. Okay. Are you aware that [appellant] had a sign making business? Did that come out in your investigation?
A. Yes, it did.
Q. Okay. And are you aware that he had made that sign?
A. No, I didn't know he made it.
Q. Okay. But you're aware that he makes signs, right?
A. Yes.
Q. Okay. Are you also familiar— during your investigation did you become familiar with the fact that [appellant] had been a victim of a robbery in the past?
A. Yes, I did.
Q. What they call a home invasion?
A. Yes, I did.
Q. Okay. So you wouldn't blame him for having a sign like that at his house when he had been a prior victim, would you?
A. No, not at all.
In appellant's testimony and statements to law enforcement, he admitted to shooting Daniel, but claimed that he did so accidentally. There was evidence that appellant attempted to place a knife in Daniel's hands after the shooting and that appellant kicked Daniel as he lay on the ground. Multiple witnesses observed appellant fire several shots at the ground while he threatened that he would kill Daniel if he did not leave. While appellant denied shooting Daniel intentionally, he gave conflicting statements as to whether he shot Daniel in self-defense or by accident. Removing the no-trespassing sign from consideration, there remains overwhelming evidence supporting the jury's finding of guilt. After examining the record as a whole, we are fairly assured the error did not have a substantial and injurious effect or influence in determining appellant's conviction. See Jabari, 273 S.W.3d at 754. We overrule appellant's second issue.
IV. STATEMENT OF APPELLANT
By his third issue, appellant argues that "[t]he trial court erred in not suppressing [appellant's] statement." Specifically, appellant maintains that "Miranda warnings were not given in a timely fashion but instead, after the fact."
A. Pertinent Facts
The trial court held a pre-trial hearing on appellant's motion to suppress his written statement. At the hearing, Officer Avila testified concerning his interrogation of appellant. Officer Avila received a call at 1:30 a.m. instructing him to come to the sheriff's office to interview appellant. He arrived around 2:30 a.m. after travelling from his home in Weslaco. Officer Avila then reviewed statements from witnesses, other than appellant, that were collected by investigating officers. At 3:49 a.m., Officer Avila made contact with appellant and advised him of his Miranda rights. Appellant then executed a written acknowledgment and waiver of those rights. Officer Avila stated that he began the questioning by building rapport with appellant. Once appellant began answering questions concerning the shooting, Officer Avila started typing appellant's statement. When the statement was completed, Officer Avila read it to appellant and gave him the opportunity to review it before signing. At the top of each page, appellant initialed in acknowledgment of his Miranda rights. Appellant signed near the bottom of each page acknowledging "I give this statement of my own free will, not promised anything in return, and not coerced into giving this statement." The interrogation ended at 9:00 a.m.
Officer Avila testified that appellant was coherent, and that he did not observe any signs of intoxication. Officer Avila offered appellant food and water and the opportunity to use the restroom. Officer Avila stated that appellant never requested an attorney or stated that he did not want to talk. Appellant's acknowledgment and waiver of his Miranda rights and his written statement were entered into evidence for purposes of the suppression hearing.
Appellant testified at the pre-trial hearing that other unidentified officers asked him questions prior to his interview with Officer Avila. Appellant stated that he was not advised of his Miranda rights by these other officers. Appellant explained that "they will come in and ask me questions and then they will go and then come back and it would be like two or three different persons." Appellant stated that he drank a lot of alcohol that evening and that he felt he was intoxicated to the point that he would not be able to drive safely. Appellant claimed Officer Avila made him wait to use the restroom until after he finished his statement. Appellant stated he disagreed with some of what was contained in the written statement, but he signed it because he just wanted to finish the interrogation.
The trial court denied appellant's motion to suppress his written statement and issued the following findings of fact and conclusions of law:
We initially abated this appeal and instructed the trial court "to enter an order stating its conclusion as to whether or not the challenged statements were voluntarily made, along with specific findings of fact upon which the conclusion is based." See TEX. CODE CRIM. PROC. ANN. art. 38.22, § 6 (West, Westlaw through 2015 R.S.). The trial court subsequently entered findings of fact and conclusions of law which were filed as a supplemental clerk's record.
1. [Appellant] was in custody for all purposes before the commencement of questioning.
2. [Appellant] was subject to custodial interrogation on a single occasion.
3. The custodial interrogation resulted in the making by [appellant] of a written statement. . . .
4. [Appellant] was admonished as to all of his statutory and/or constitutional rights as set out in Art. 38.22, section 2, Texas Code of Criminal Procedure, before the taking of his first voluntary statement of accused. . . .
5. The said voluntary statement of accused shows on the face thereof that [appellant], prior to making the statement, received from the person to whom the statement was made all of the warnings set forth in [article 38.22, section 2(a) of the code of criminal procedure].
6. [Appellant] understood each and every such right.
7. [Appellant] manifested his understanding of his rights by affixing his initials to the various rights set out on a waiver form and on the face of the statement itself.
8. [Appellant], prior to and during the making of his voluntary statement of accused, knowingly, intelligently and voluntarily waived those said rights and elected to make a custodial statement of accused.
9. At no time during the interview of [appellant] and during the taking of his first statement of accused did [appellant] invoke any of such rights.
10. The interview was not recorded in any electronic format.
11. No officers threatened [appellant] in any way to persuade [appellant] to make his voluntary custodial statement of accused.
12. No officers used force of any kind to persuade [appellant] to make the statement or to waive any of his rights.
13. No promises of any kind were made to [appellant] by officers to persuade or induce him to make any of the statements or to waive any of his rights.
14. In light of the foregoing, the Court FINDS that the written statement and both recorded statements were freely and voluntarily made by [appellant] without compulsion or persuasion.
We note that the State presented only appellant's written statement at the suppression hearing and at trial. No recorded verbal statement is identified or referenced in the record.
B. Standard of Review and Applicable Law
In reviewing the trial court's ruling on a motion to suppress statements made as a result of custodial interrogation, we apply a bifurcated standard of review. Pecina v. State, 361 S.W.3d 68, 78-79 (Tex. Crim. App. 2012) (citing Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim. App. 1997)); Nelson v. State, 463 S.W.3d 123, 126 (Tex. App.—Houston [1st Dist.] 2015, pet. ref'd). We review the ruling in light of the totality of the circumstances, giving total deference to the trial court on questions of historical fact, as well as its application of law to fact questions that turn on credibility and demeanor. Pecina, 361 S.W.3d at 79; Leza v. State, 351 S.W.3d 344, 349 (Tex. Crim. App. 2011). But we review de novo the trial court's rulings on questions of law and mixed questions of law and fact that do not depend on credibility determinations. Pecina, 361 S.W.3d at 79; Leza, 351 S.W.3d at 349. We view the record in the light most favorable to the trial court's ruling and reverse the judgment only if the ruling lies outside the zone of reasonable disagreement. Hereford v. State, 339 S.W.3d 111, 118 (Tex. Crim. App. 2011); Nelson, 463 S.W.3d at 126.
The Fifth Amendment prohibits the government from compelling a criminal suspect to bear witness against himself. U.S. CONST. amend V ("No person . . . shall be compelled in any criminal case to be a witness against himself."). "In Miranda v. Arizona, the Supreme Court crafted safeguards to protect this 'privilege against self-incrimination' in the inherently coercive atmosphere of custodial interrogations." Pecina, 361 S.W.3d at 75 (citing Miranda v. Arizona, 384 U.S. 436, 441 (1966)). Under Miranda, "[p]rior to any questioning, the person must be warned 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." Miranda, 384 U.S. at 444; see Lampkin v. State, 470 S.W.3d 876, 891 (Tex. App.—Texarkana 2015, pet. ref'd). "Failure to provide the warnings and obtain a waiver prior to custodial questioning generally requires exclusion of statements obtained." Carter v. State, 309 S.W.3d 31, 35-36 (Tex. Crim. App. 2010).
Further, the Texas Code of Criminal Procedure mandates that before a written statement of an accused may be introduced into evidence, the face of the statement must demonstrate that the interviewee was provided warnings that
(1) he has the right to remain silent and not make any statement at all and that any statement he makes may be used against him at his trial;
(2) any statement he makes may 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;TEX. CODE CRIM. PROC. ANN. art. 38.22, § 2(a) (West, Westlaw through 2015 R.S.).
(4) if he is unable to employ 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 terminate the interview at any time.
C. Analysis
Appellant maintains his statement is inadmissible because, prior to Officer Avila's interrogation, he was questioned by other officers without having been given Miranda warnings. A "two-step" or "question first, warn later" interrogation occurs when the police interrogate a suspect without giving him his Miranda warnings, obtain a confession from him, then give him the Miranda warnings, and get him to repeat the confession he made previously. Missouri v. Seibert, 542 U.S. 600, 605-06 (2004). The deliberate employment of such a tactic is impermissible in Texas. See Carter, 309 S.W.3d at 38; Martinez v. State, 272 S.W.3d 615, 624 (Tex. Crim. App. 2008).
Appellant testified that other unidentified individuals asked him questions prior to appellant's interview with Officer Avila. However, the trial court found that appellant "was subject to custodial interrogation on a single occasion." In so finding, the trial court implicitly rejected appellant's testimony that he was questioned prior to being advised of his Miranda rights. We must give total deference to the trial court's finding in this regard as well as the trial court's determination of the credibility of appellant's testimony. See Pecina, 361 S.W.3d at 79.
We observe that appellant's written statement resulted from a five-hour interrogation, in which he was questioned exclusively by Officer Avila. Appellant generally referenced prior contact with unidentified persons, but he never claimed he provided any statement concerning the shooting before Officer Avila's interrogation. We further observe that appellant's statement complied with the statutory requirements for written statements in that the face of the statement demonstrates appellant was provided the warnings set out in article 38.22, section 2(a) of the code of criminal procedure. See TEX. CODE CRIM. PROC. ANN. art. 38.22, § 2(a). Therefore, we conclude that the trial court did not err in denying appellant's motion to suppress his written statement. We overrule appellant's third issue.
V. CUMULATIVE HARM
By his fourth issue, appellant argues that "[t]he number of errors had a cumulative harmful effect." Before conducting a harm analysis for cumulative error, we must find multiple errors have occurred. See Chamberlain v. State, 998 S.W.2d 230, 238 (Tex. Crim. App. 1999) (explaining that unless and until multiple errors are found to have been committed, there can be no cumulative error effect because non-errors cannot in their cumulative effect create harmful error). We have concluded that the trial court erred in only one instance, and that the error was harmless. Because multiple errors have not occurred, we need not conduct a separate harm analysis for cumulative error. We overrule appellant's fourth issue.
VI. CONCLUSION
We affirm the trial court's judgment.
LETICIA HINOJOSA
Justice Do not publish.
TEX. R. APP. P. 47.2(b). Delivered and filed the 23rd day of March, 2017.