Alvarado v. State
| Decision Date | 27 February 1991 |
| Docket Number | No. 08-90-00158-CR,08-90-00158-CR |
| Citation | 804 S.W.2d 669 |
| Parties | Eduardo ALVARADO, Appellant, v. The STATE of Texas, Appellee. |
| Court | Texas Court of Appeals |
Bruce J. Ponder, El Paso, for appellant.
Steve W. Simmons, Dist. Atty. of El Paso County, El Paso, for appellee.
Before OSBORN, C.J., and FULLER and KOEHLER, JJ.
This is an appeal from a conviction arising out of the consolidated trial of two indictments charging Appellant with murder and attempted murder. The jury found the Appellant guilty of the lesser offenses of voluntary manslaughter and attempted voluntary manslaughter. In each case, the court assessed punishment, enhanced by two prior felony convictions, at imprisonment for forty years. We affirm.
Appellant presents a single point of error challenging the admissibility of his written confession as violative of the Fifth and Fourteenth Amendments to the United States Constitution, Article I, §§ 10 and 19 of the Texas Constitution, and Tex.Code Crim.Pro.Ann. arts. 38.22 and 38.23 (Vernon 1979 and Supp.1991).
Appellant was arrested by Mexican State Judicial Police in Juarez, Mexico, at the instigation of the El Paso Police Department. After an initial interrogation by State Judicial Police, including Chief Jose Rubalcaba, he was turned over to Andreas Medina, secretary to the Judicial Police, for the transcription of a written confession, upon information elicited by Medina's questions. Appellant, a United States citizen, and the written confession were turned over to the Director of Mexican Immigration for his decision as to deportation. Appellant was then taken to the border by Mexican immigration personnel who turned him over to American immigration officers. They in turn delivered him into the custody of the El Paso Police Department. Chief Rubalcaba arranged for delivery of a copy of Appellant's confession to the El Paso police.
There was no contention in the lower court that the confession was extracted by any force or coercion which would violate common law standards of voluntariness. Secretary Medina testified that Appellant was advised of his rights under the Code of Criminal Procedure of the State of Chihuahua, Mexico, and that he voluntarily gave the statement. We note Appellant's objection in the trial court to the manner of proof concerning the laws of the Republic of Mexico in this regard. Only the explanatory testimony of Secretary Medina was offered. The rules governing the taking of confessions in Mexico relate directly to Medina's function for the Judicial Police for over twenty years. He testified that he has remained familiar with those rules and is called upon regularly to implement them. While the more formal procedure of Tex.R.Crim.Evid. 203 was not followed, that rule does permit the trial judge to consider "any material or source, whether or not submitted by a party or admissible under the rules of evidence, including but not limited to affidavits, testimony, briefs and treatises." The issue before the trial court involved preliminary questions of fact under Tex.R.Crim.Evid. 104, concerning the admissibility of the confession. Tex.R.Crim.Evid. 1101(c)(1) provides that the rules of evidence do not apply in that circumstance. We consider Medina's explanation a proper basis for consideration of the Mexican rules by the trial judge.
Medina explained that Appellant had and was warned of his right not to give a statement and his right to terminate any statement at any time. He was also advised of his right to the presence and assistance of either a retained attorney or any other individual "in his confidence." Unlike Appellant's rights in this country, Appellant had no right to appointed counsel at the time of his appearance and interrogation by Judicial Police personnel. That right would attach only upon referral to a trial court. Medina made no reference to rights or warnings as to possible use of the confession in later trial proceedings. Obviously, the rights and warnings provided to Appellant by Mexican law do not comport with the applicable rights and warnings under United States and Texas authority in the case of a confession elicited in this state by law enforcement personnel. The question presented by this appeal is the extent to which these latter legal requirements govern the confession taken from Appellant in Mexico and the applicability of judicial and statutory exclusionary rules.
Appellant first contends that Chief Rubalcaba and the Chihuahua State Judicial Police were acting as agents for the El Paso Police Department and were therefore bound by all the confession rules which apply under federal and Texas law. Zani v. State, 679 S.W.2d 144, 151 (Tex.App.--Texarkana 1984), rev'd on other grounds, 758 S.W.2d 233 (Tex.Crim.App.1988); United States v. Morrow, 537 F.2d 120, 139 (5th Cir.1976). We acknowledge this agency principle and its applicability in Fourth and Fifth Amendment situations, involving private citizens or foreign law enforcement personnel. See Burdeau v. McDowell, 256 U.S. 465, 41 S.Ct. 574, 65 L.Ed. 1048 (1921); United States v. Chavarria, 443 F.2d 904 (9th Cir.1971); People v. McKinnon, 7 Cal.3d 899, 103 Cal.Rptr. 897, 500 P.2d 1097 (1972), cert. denied, 411 U.S. 931, 93 S.Ct. 1891, 36 L.Ed.2d 390 (1973). The record before us enables the Appellant to present a strong argument that such agency relationship existed and applied to this confession, but not so strong as to demonstrate that the trial court's ruling was erroneous as a matter of law or constituted an abuse of discretion.
There is no question that information concerning the alleged offenses by Appellant and his suspected presence in Juarez as well as a request for assistance by the El Paso Police Department to Chief Rubalcaba was a cause in fact of Appellant's apprehension by the Chihuahua State Judicial Police. Standing alone this does not create an agency relationship. United States v. Morrow, 537 F.2d at 140; United States v. Chavarria. American law enforcement personnel were not present and did not participate in the arrest, interrogation, confession or deportation. They did not request the interrogation or taking of a...
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Alvarado v. State
...each conviction, the terms to run concurrently. Appellant's convictions were affirmed by the El Paso Court of Appeals. Alvarado v. State, 804 S.W.2d 669 (Tex.App.1991). We affirm the judgment of the court of In his petitions for discretionary review, appellant alleges his Fifth and Fourteen......