O P I N I O N
Appellant
was convicted of a capital murder committed in January 2002. Tex.
Penal Code § 19.03(a). Pursuant to the jury's answers to the
special issues set forth in Texas Code of Criminal Procedure
Article 37.071, sections 2(b) and 2(e), the trial court sentenced
appellant to death. Art. 37.071, § 2(g). (1)
Direct appeal to this Court is automatic. Art. 37.071, § 2(h).
Appellant raises six points of error. We affirm.
Appellant, a
Honduran national, was indicted for the capital murder of fifteen-year-old
Esmeralda Alvarado in Houston, Texas. The indictment alleged that
appellant shot and killed Alvarado while in the course of
committing and attempting to commit aggravated sexual assault.
Appellant was arrested at 10:35 a.m. on August 21, 2002, and was
taken to the Houston Police Department homicide office for
questioning. Appellant gave several videotaped statements to
police on August 21 and 22. He filed a motion to suppress the
statements, and the trial court held a pretrial hearing to
determine their admissibility.
The evidence
at the hearing showed that appellant gave his first videotaped
statement detailing his involvement in the Alvarado case to
Officers Jesus Sosa and H. A. Chavez from 1:55 p.m. to 4:30 p.m.
on August 21st. He told Sosa and Chavez that he and
Walter Sorto saw a girl talking on a pay phone, that Sorto forced
her into their car, and that they drove her to a secluded location
and took turns raping her, but that Sorto was the one who shot and
killed her. Appellant agreed to show police where his gun was
located and left with Officer Alfredo Mares and two other officers
at 5:30 p.m. They went to appellant's apartment complex and one
other location, then, shortly before 7:00 p.m., the officers took
appellant before a magistrate. After appellant received his
statutory warnings from the magistrate, the officers took him to
participate in a live lineup, bought him dinner at a fast-food
restaurant, and drove him back to the Houston Police Department
homicide office, where Mares interviewed him. Appellant gave a
short videotaped statement to Mares at 9:33 p.m., in which he
admitted his involvement in an extraneous robbery. Mares stopped
the tape at 9:48 p.m. and started it again at 10:56 p.m. Appellant
then confessed that he and Sorto had committed several robberies
and shootings outside various "cantinas" in Houston. The interview
concluded at 11:30 p.m. Officer Alan Brown then transported
appellant to the City of Houston jail for the night.
Brown picked
up appellant from jail at 8:00 a.m. on August 22, and took him to
appear before the magistrate for a continuation hearing. Appellant
again received his statutory warnings. Later that morning, Officer
Cecil Mosqueda interviewed appellant. Appellant gave a videotaped
statement to Mosqueda from 10:50 a.m. to 2:00 p.m., in which he
admitted his involvement in various extraneous offenses, including
the rape and murder of two women in May 2002.
(2)
Appellant
gave a final videotaped statement, regarding his involvement in
the Alvarado case, to Officer Xavier Avila at 5:29 p.m. Appellant
again explained that he and Sorto saw a girl talking on a pay
phone, that Sorto forced her into their car, and that they drove
her to a secluded location and took turns raping her, but this
time he admitted that he, not Sorto, shot the girl in the head and
killed her. This videotaped statement ended at 6:27 p.m.
In his first
point of error, appellant complains solely about the admission of
his final videotaped statement. He asserts that this statement was
involuntary because he was deprived of sleep and "subjected to two
full days of interrogation by rotating teams of police officers."
He claims that he did not understand his rights and "truly
believed his statements would not be used against him" because he
is "a youth of limited intellect." He also complains that, when
Mosqueda interviewed him, Mosqueda promised appellant that he
would not be charged for the crime.
"[A]
defendant in a criminal case is deprived of due process of law if
his conviction is founded, in whole or in part, upon an
involuntary confession, without regard for the truth or falsity of
the confession, [citation omitted], and even though there is ample
evidence aside from the confession to support the conviction."
Jackson v. Denno, 378 U.S. 368, 376 (1964)(citations omitted).
When determining whether a defendant's will was overborne in a
particular case, courts assess the totality of all of the
circumstances surrounding both the characteristics of the accused
and the details of the interrogation. Schneckloth v.
Bustamonte, 412 U.S. 218, 226 (1973).
"At a
suppression hearing, the trial court is the sole judge of the
credibility of witnesses and the weight of their testimony."
Wyatt v. State, 23 S.W.3d 18, 23 (Tex. Crim. App. 2000);
Jones v. State, 944 S.W.2d 642, 650 (Tex. Crim. App. 1996),
cert. denied, 522 U.S. 832 (1997). We will not disturb
the trial court's findings if they are supported by the record.
Id. "We only consider whether the trial court properly
applied the law to the facts." Id.
Avila
testified at the hearing that appellant agreed to give him a
statement and that he informed appellant that it would be recorded.
Avila read appellant his warnings in Spanish, and appellant
initialed each of them and said that he understood them. When
Avila asked appellant if he wanted to waive his rights and give a
voluntary statement, appellant replied in the affirmative.
Appellant never asked for an attorney or to terminate the
interview. Avila testified that he never threatened appellant or
promised or denied him anything. At the end of the interview,
appellant asked for "a chance to talk by telephone." Avila
testified that he provided appellant with a telephone and allowed
him to make a phone call.
Appellant
was twenty-three years old at the time of his arrest. He testified
that he completed the seventh grade in Honduras.
(3) He came to the United States to live with his father
in 1999. At the time of his arrest, he worked for a company that
installed insulation material, lived in his own apartment, paid
his own bills, owned a car, and was able to read in Spanish and
speak a little English. He testified that he did not understand
his legal rights, even when they were read to him in Spanish; they
were "just words," and he did not understand their significance
because he did not know anything about the judicial system in the
United States. (4)
All of
appellant's videotaped interviews were conducted in Spanish, and
each of the officers who interviewed him read the Miranda
warnings to him in Spanish. (5)
Appellant consistently indicated that he understood his rights and
declined to ask any questions about them. The officers testified
that appellant appeared to understand the warnings and gave them
no reason to believe otherwise. Appellant twice appeared before a
magistrate, who read the Miranda warnings to him in
English while an interpreter translated them into Spanish.
Appellant indicated that he understood his rights both times.
Appellant
testified that he was taken to jail between midnight and 1:00 a.m.
on August 22, but he did not have access to a bed until 3:30 a.m.,
and he could not sleep because other prisoners were talking all
night. He also acknowledged that he could have slept if he had
wanted to do so. He testified that, prior to turning on the
videotape, Avila told him that he would go to jail, where he would
be turned "into a little woman" and would "come out wearing
fingernail polish and have long hair." Avila, however, testified
that he never threatened appellant in any manner.
Appellant
complains that Mosqueda promised him he would not be charged with
any crime, and that he made his later statement to Avila
implicating himself as the triggerman in the Alvarado case because
he believed Mosqueda's promise. The transcript of the interview
reflects that Mosqueda questioned appellant about multiple
extraneous robberies and murders, and he did not mention the
Alvarado case except for two possible references:
(6)
[MOSQUEDA]:
Well, you all talked about the, the girl from . . . ? You spoke
with an investigator about the girl from . . . from this year?
[APPELLANT]:
The one from this year?
[MOSQUEDA]:
Yes.
[APPELLANT]:
Yes.
[MOSQUEDA]:
You already talked about that, right? Um . . . In that one, you
all used a what? What did you all use there?
[APPELLANT]:
A forty-five.
* * *
[MOSQUEDA]:
Okay. It's like twelve twenty. Let's see if . . . as I say, uh,
think about it to see if you remember something that you all did.
Like I said, you all already talked about the two girls, you
already talked about the girl, you already talked about that one.
You, you say that you don't know anything about Laura Ayala.[
(7)]
[APPELLANT]:
No. Mosqueda first asked appellant about the shooting of a man at
a traffic light and the disappearance of Laura Ayala. Appellant
denied his involvement in those cases, but admitted that he and
Sorto had burglarized a house. He also acknowledged that he and
Sorto were involved in the robbery and shooting of two men outside
a cantina and the rape and murder of two women, but said that
Sorto was the triggerman. After they discussed these cases,
Mosqueda made the following comment:
I'm going to
ask you some questions, let[']s see if you remember. It's ver
[sic], very important, okay? I'm going to tell you something it's
that . . . everything that, that . . . if you don't say or want to
say this, eh, we just want to know. We're not, not, not going to
bring charges about this. Understand? We just want to know to
clarify, okay? Because it seems that Walter already, already had
been doing this a while. Do you understand me? But I want to know
so that we can clarify because it's several.
Mosqueda
then asked appellant about numerous unsolved cases, including a
string of robberies and shootings, and bodies that were found in
various locations. Appellant denied any knowledge of these cases.
Mosqueda
testified that when he said, "We're not . . . going to bring
charges about this," he "was referring to a different case,"
specifically the Laura Ayala case. At the conclusion of the
hearing, the State informed the trial court that it would not
offer appellant's statement to Mosqueda into evidence. The trial
court agreed that that particular statement was inadmissible
because Mosqueda's comment was "a textbook example of a promise."
The trial court then made findings regarding appellant's statement
to Avila:
Specifically,
I want to note for the record for the Appellate Courts on my
findings of fact that I found the demeanor of Officer Avila to be
very professional on the stand and on the videotape and that he
was obviously speaking with a great deal of authority.
I also want
to make a specific finding that when Officer Avila went over the
warnings with the defendant, he did it very carefully, he did it
very slowly, he went to the trouble of finding how far the
defendant went in school, asking him if he preferred the warnings
in English or Spanish, and then went over them carefully, had the
defendant look at each warning and initial it.
And I note
for the record that Detective Avila took great care in how he gave
the warnings on that fifth statement; and I think he did it as a
man with authority and that he, of course, specifically pointed
out that these - - on the statement that was about to be given by
the defendant could be used. I believe - - I make a finding that
the defendant understood the warnings as they were given on the
videotape in State's Exhibit 6 and that the defendant
intelligently waived his rights and that he freely, knowingly, and
voluntarily entered the statement which appears on videotape No.
6.
I do make a
specific finding that the time proximity was close between [appellant's
statement to Mosqueda] and [appellant's statement to Avila]. And I
want to make a specific finding also that the wording that was
used in the improper promise [by Mosqueda], although it does use
the word "we," it notes that not filing charges specifically has
to do with those things he is talking about that Walter was
already involved with. And, therefore, I find that the defendant
would not have believed that that promise carried over to the
statement taken by Officer Avila.
The trial
court's findings are supported by the record. Wyatt, 23
S.W.3d at 23; Jones, 944 S.W.2d at 650. But even if we
were to assume error in the admission of Avila's statement after
Mosqueda's promise, appellant cannot show harm. TEX. R. APP. P.
44.2 (a). Appellant asserts that his statement to Avila was the "critical
confession" because in it he admitted that he, not Sorto, was the
triggerman in the Alvarado case. However, the jury was authorized
to convict appellant as a principal or as a party to the offense.
In his first statement to Sosa and Chavez, appellant admitted his
own participation in the abduction, rape, and murder of Alvarado,
but targeted Sorto as the triggerman. Even without the admission
of his final statement to Avila, the jury could still have
convicted appellant as a party to the offense. Point of error one
is overruled.
In point of
error three, appellant claims that the trial court erroneously
refused his request for an Article 38.23 jury instruction on the
voluntariness of his statements. "When the evidence presented at
trial raises a factual issue as to whether a defendant had been
warned of his rights and voluntarily waived them prior to making a
statement, he is entitled to an instruction on voluntariness of
the confession." Mendoza v. State, 88 S.W.3d 236, 239 (Tex.
Crim. App. 2002), citing Dinkins v. State, 894
S.W.2d 330, 353-54 (Tex. Crim. App.), cert. denied, 516
U.S. 832 (1995). At trial, appellant complained that the following
exchange at the end of his videotaped statement to Sosa and Chavez
raised a factual issue as to whether his statements were voluntary:
CHAVEZ:
Okay. Look. This that you have told us about this case is the
truth?
CUBAS: Yes.
CHAVEZ: It's
the whole truth? And you're telling us this voluntarily, or why?
CUBAS: No.
Voluntarily, no . . .
CHAVEZ: And
why did you decide to give us the statement on this case?
CUBAS:
Because I don't think it serves anything me hiding it. You're
going to blame me for something that I don't deserve.
CHAVEZ:
Someone has threatened you?
CUBAS: No.
CHAVEZ:
Since you have been here with us?
CUBAS: No.
CHAVEZ: Have
we promised you anything for you to tell us what you know about
this case?
CUBAS: No.
CHAVEZ: So
then everything that you have told us is voluntary because you are
here?
CUBAS: Yes.
CHAVEZ: (unintelligible)
Okay. This interview we're going to finish now, okay? Right now
it's three twenty.
Appellant
argued that this exchange suggested "some sort of psychological
coercion" during appellant's first statement and that the issue of
voluntariness "applie[d] to all of the statements" that followed
it. (8) The trial court declined to
include appellant's requested instruction in the jury charge.
The
transcript of appellant's videotaped statement reflects that
Chavez read appellant his rights and appellant indicated he
understood his rights and acknowledged that he wanted to explain
what he knew about the Alvarado case. Appellant ultimately said at
the end of his statement that no one threatened him or promised
him anything, and that everything he told Sosa and Chavez was
voluntary. Sosa and Chavez both testified that appellant said he
understood his rights when they were read to him. Chavez testified
that appellant wanted to give a voluntary statement and was
neither threatened nor coerced to do so. The complained-of
exchange during appellant's first statement did not entitle him to
an instruction on the voluntariness of all of his statements. The
trial court did not err in refusing appellant's request for an
Article 38.23 instruction. Point of error three is overruled.
In points of
error two and four, appellant alleges that his consular rights
under the Vienna Convention on Consular Relations were violated
and therefore his statements should have been suppressed under
Article 38.23. (9) Article 36 of
the Vienna Convention provides in pertinent part:
[I]f he so
requests, the competent authorities of the receiving State shall,
without delay, inform the consular post of the sending State if,
within its consular district, a national of the State is arrested
or committed to prison or to custody pending trial or is detained
in any other manner. Any communication addressed to the consular
post by the person arrested, in prison, custody or detention shall
also be forwarded by the said authorities without delay. The said
authorities shall inform the person concerned without delay of his
rights under this sub-paragraph[.]
Vienna
Convention on Consular Relations, April 24, 1963, 21 U.S.T 77, 595
U.N.T.S. 261 (ratified by the United States on Nov. 24, 1969).
Appellant asserts that the police failed to inform him "without
delay" that he had a right to seek assistance from the Honduran
consulate.
Appellant
was arrested at approximately 10:35 a.m. on August 21. He arrived
at the Houston Police Department homicide office at about 11:20
a.m., and he gave his first videotaped statement to Sosa and
Chavez from 1:55 p.m. to 4:30 p.m. In his first statement, he
admitted his involvement in the Alvarado case, but named Sorto as
the triggerman. He received statutory warnings from a magistrate
shortly before 7:00 p.m. He then returned to the homicide office
where Mares interviewed him. He gave a videotaped statement to
Mares between 9:33 p.m. and 9:48 p.m., and another between 10:56
p.m. and 11:30 p.m. Both of these statements detailed his
involvement in extraneous offenses. He spent the night in jail and
received statutory warnings from the magistrate again at 8:00 a.m.
on August 22. He gave another videotaped statement to Mosqueda
from 10:50 a.m. to 2:00 p.m., again detailing his involvement in
various extraneous offenses.
Avila
testified that he spoke to appellant at approximately 5:20 p.m. on
August 22. He testified that before he began recording appellant's
statement he asked him if he wanted to contact the Honduran
consulate and appellant "said he didn't need to contact them."
Appellant, however, testified that Avila never informed him of his
right to contact his consulate. Appellant gave Avila a videotaped
statement regarding his involvement in the Alvarado case between
5:29 p.m. and 6:27 p.m. In this final statement, appellant
admitted that he, not Sorto, was the triggerman.
Officer
Mario Rodriguez testified that he called the Honduran consulate at
5:17 p.m. on August 22, spoke to a person who identified herself
as Alise Valenzuela, and informed her that appellant had been
charged with capital murder. He also sent a fax at 5:58 p.m.
informing the consulate that appellant had been charged with
capital murder.
The record
reflects that Rodriguez notified the Honduran consulate of
appellant's capital murder charge approximately thirty-one hours
after his arrest. See Sorto, 173 S.W.3d at 486 (holding
that Rodriguez, in faxing the required notification within forty-eight
hours of Sorto's arrest, notified the Salvadoran consulate "without
delay"). Appellant cannot complain that the police failed to tell
him that he could request them to notify the consulate of his
detention if they notified the consulate even without his request.
Id. at 483. We conclude that Rodriguez notified the
Honduran consulate "without delay" and that the Texas authorities
complied with their obligations under Article 36 of the Vienna
Convention. Id. at 486. Thus, the trial court did not err
in refusing to suppress appellant's statements under Article
38.23. Id.
Further,
appellant has not shown that he was prejudiced or that there was a
causal connection with the acquisition of his statements or the
fairness of his trial. Id. at 487. Avila testified that
appellant declined when he asked him if he wanted to contact the
consulate, and there is no indication that the consulate would
have assisted him if he had requested that they be contacted.
Appellant's father, Fernando Cubas, testified that he went to the
Honduran consulate on the morning of August 22 to ask for their
advice and was told that "the consulate couldn't do anything
concerning the laws of this country." Points of error two and four
are overruled.
In point of
error five, appellant complains that the mitigation special issue
is unconstitutional because it "omits a burden of proof" and "makes
impossible any meaningful appellate review of the jury's
determination." He claims that Article 44.251, requiring appellate
review of sufficiency of all capital-punishment issues, when
interpreted in conjunction with Article 37.071, section 2(e),
placing no burden of proof in the mitigation special issue, is
infirm under the Eighth Amendment to the United States
Constitution. This Court has previously addressed and rejected
these claims, and we decline to revisit these issues here.
Resendiz v. State, 112 S.W.3d 541, 550 (Tex. Crim. App.
2003), cert. denied, 541 U.S. 1032 (2004); Jackson v.
State, 33 S.W.3d 828, 840-841 (Tex. Crim. App. 2000),
cert. denied, 532 U.S. 1068 (2001); Prystash v. State,
3 S.W.3d 522, 535-36 (Tex. Crim. App. 1999), cert. denied,
529 U.S. 1102 (2000). Point of error five is overruled.
In point of
error six, appellant argues that the future-dangerousness special
issue is unconstitutional, citing Apprendi v. New Jersey,
530 U.S. 466 (2000), Ring v. Arizona, 536 U.S. 584
(2002), and Blakely v. Washington, 542 U.S. 296 (2004).
He asserts that "[b]ecause the future dangerousness special issue
increases the punishment for capital murder beyond the prescribed
statutory maximum, the issue acts as the functional equivalent of
a traditional element of the crime that has to be proven to a jury
beyond a reasonable doubt." He also contends that the term "probability"
in the future-dangerousness special issue "impermissibly dilutes
the reasonable doubt standard."
We have
previously held that Apprendi and Ring are
inapplicable to the statutory scheme in Article 37.071, and
Blakely does not affect this holding. Rayford v. State,
125 S.W.3d 521, 534 (Tex. Crim. App. 2003), cert. denied,
543 U.S. 823 (2004); Woods v. State, 152 S.W.3d 105,
121 (Tex. Crim. App. 2004), cert. denied, 125 S. Ct. 2295
(2005). We have also held that the inclusion of the term "probability"
does not render the future-dangerousness special issue
unconstitutional. Robison v. State, 888 S.W.2d 473, 481 (Tex.
Crim. App. 1994), cert. denied, 515 U.S. 1162 (1995).
Point of error six is overruled.
We affirm
the judgment of the trial court.
Delivered:
April 12, 2006
