Contreras v. State

• Decision Date: 09 June 2010
• Docket Number: No. PD-0490-09.,PD-0490-09.
• Citation: 312 S.W.3d 566
• Parties: SAUL CONTRERAS, Appellant, v. The STATE of Texas.
• Court: Texas Court of Criminal Appeals

312 S.W.3d 566

SAUL CONTRERAS, Appellant, v. The STATE of Texas.

No. PD-0490-09.

Court of Criminal Appeals of Texas.

June 9, 2010.

COPYRIGHT MATERIAL OMITTED

Janet Burnett, Asst. Public Defender, El Paso, for Appellant.

Tom A. Darnold, Asst. Dist. Atty., El Paso, Jeffrey L. Van Horn, State's Atty., Austin, for State.

OPINION

KELLER, P.J., delivered the opinion of the Court in which MEYERS, KEASLER, HERVEY, HOLCOMB and COCHRAN, JJ., joined.

Appellant was convicted of felony murder¹ in connection with the death of his twenty-two-month-old niece, Jazmine. Appellant complains that the court of appeals erred in rejecting two of his contentions. The first contention at issue was that the trial court erred in refusing to submit instructions on the voluntariness of appellant's confession under article 38.23.² The second contention was that the submission of felony murder in the jury charge violated appellant's right to a unanimous verdict because multiple culpable mental states were submitted in the alternative for the underlying felony of injury to a child. We sustain one aspect of appellant's article 38.23 claim and reject his remaining complaints.

I. ARTICLE 38.23 INSTRUCTION

A. Background

1. Criminal Investigation

a. Events Leading up to Second Interview

Appellant and his brother were married to two sisters. Appellant's brother and sister-in-law were having marital problems, so appellant's sister-in-law and her five children were living with appellant, his wife, and his wife's two children.

At 6:00 or 6:30 p.m. on November 28, 2003, the entire household, except for appellant and his two youngest nieces, went to Chuck-E-Cheese. Twenty-two-month-old Jazmine was originally supposed to go with the family but was left at home because she had fallen asleep on the couch. Jazmine had had a little diarrhea that day, but she had no injuries when the family left for the restaurant. At some point in the evening, appellant changed Jazmine's diaper. At around 9:30 or 10:00 p.m., the rest of the household returned home. Appellant told Jazmine's mother that Jazmine had fallen off the couch, but that she had later watched television with him before he put her to bed. At around 11:00 p.m., Jazmine's mother checked on her and discovered that she was cold, pale, and stiff, and was not breathing. Jazmine was later pronounced dead.

Detective Jimmy Aguirre asked that appellant give a statement regarding his knowledge of the events. Although appellant was not under arrest or detention, at 3:05 a.m. on November 29, he received and waived Miranda³ warnings. Appellant's written statement was completed at 6:10 a.m. In it, appellant confirmed the above events and otherwise related an exculpatory version of events.

Statements were taken from other family members, and appellant left the police station around 9:00 a.m. Since officers were still processing the home, appellant and the others stopped there to pick up some things, ran some errands, and went to appellant's mother's house.

At 4:03 p.m., Detective Aguirre went to the police station to discuss the results of Jazmine's autopsy. He was told that she suffered a ruptured spleen and had internal bleeding as a result of blunt force trauma to the abdomen. The autopsy report specified a number of injuries, both internal and external. The conclusion of the report was that Jazmine "died from internal bleeding due to blunt force injuries to the abdomen with tear of the small bowel mesentery." The report characterized the death as a result of physical abuse and classified the manner of death as homicidal. The medical examiner testified that the injuries would have immediately incapacitated Jazmine and resulted in her death within an hour. He also testified that, because her body temperature at 11:15 p.m. the previous day was eighty degrees and rigor mortis had set in at the jaw and upper extremities, he believed that she had been dead for a few hours by that point.

At 6:10 p.m., Detective Aguirre called appellant and asked him to return for another interview. According to Detective Aguirre, when appellant came to the phone, he said that he had been sleeping and had slept somewhat. Appellant testified at trial that he had only been able to lie down to rest for fifteen minutes since the first interview. Appellant further testified that Detective Aguirre had said that he himself had gotten some sleep earlier that day and asked if appellant had gotten any sleep, to which appellant replied, "No."⁴

At approximately 7:00 p.m., appellant arrived at the station with his wife, brother, and sister-in-law. Although "everybody was suspect," Detective Aguirre testified that, if the stories remained consistent, then appellant was "the one that had to have been in care and control of the child." Detective Aguirre did not believe that he had probable cause to arrest appellant at that point.

For the second interview, Detective Aguirre was joined by Detective Joe Ochoa. As before, appellant was given Miranda warnings. Appellant read the warnings from a card, initialed each warning, signed the card, and noted the date and time. He then agreed to waive his rights and talk to the officers. The oral portion of the interview lasted about two hours; writing out a statement, reviewing it and signing it took less than one additional hour. After the interview, appellant met with his wife and other family members before he was taken to jail.

b. Detective Aguirre's Version of Second Interview

Detective Aguirre testified that appellant never invoked any of his rights during the second interview. According to the detective, no threats or promises were made to appellant, nor did the officers threaten any members of appellant's family. Detective Aguirre testified that the officers never suggested that appellant's wife was a suspect and never threatened to arrest her if appellant refused to confess. Detective Aguirre said that he was not aware that appellant's wife had a criminal record. According to the detective, appellant was allowed restroom breaks and given water to drink. Detective Aguirre testified that appellant never asked to make phone calls or to meet with anyone during the interview. Detective Aguirre acknowledged that it was possible that Detective Ochoa said, "I thought you said he was a good guy and a stand-up guy," but no yelling occurred during the interview. The detectives did not employ a good cop/ bad cop strategy for this interview, according to Detective Aguirre, and near the end of the interview, appellant admitted to punching Jazmine four times in the stomach.

c. Appellant's Version of Second Interview

Appellant related a different version of what happened in the interview. He said that when he was confronted by the officers with the results of the autopsy, he told them that he "didn't know anything about that." Detective Ochoa then "jumped in and started yelling" and said, "Stop lying."

According to appellant, Detective Aguirre told appellant that if it was not him, then it "would be" or "could be" his wife. Appellant testified that Detective Aguirre said that he knew that appellant's wife took care of the children during the week, that he knew that she had been arrested for driving while intoxicated, and that he knew that she had assaulted police officers when she was arrested. According to appellant, Detective Aguirre then displayed a piece of paper with appellant's wife's name on it, placed it in front of him, and said it was the police report showing that. Detective Aguirre stated that, if appellant's wife were arrested, then Child Protective Services would take their kids away.

According to appellant, Detective Aguirre also suggested to appellant that he became frustrated that night and began to hit Jazmine but that appellant was a "good guy," and Detective Aguirre knew that appellant "didn't mean it." Detective Aguirre allegedly told appellant that the autopsy showed four blows to the abdomen and suggested that appellant hit Jazmine at least four times. During this conversation, Detective Ochoa purportedly said, "Come on, you're not going to let your wife go to jail for something you did." According to appellant, when he responded that he had already told the detectives what he knew, Detective Ochoa replied, "Well, if it wasn't you, then it means your wife had to have done it." The detectives allegedly said that his wife's prior assault on officers showed that she had a bad temper.

Appellant further alleged that Detective Ochoa "kept yelling and jumping in, banging his hand on the desk" and "getting in" appellant's face, so that appellant could feel his breath, and saying, "Stop lying to us." According to appellant, Detective Ochoa looked at Detective Aguirre and said, "I thought you said he was a good guy. Look at him. He's lying."

Appellant testified that he repeatedly asked to see his wife but was told that he could not do so until the detectives could take something to their boss to show that appellant was cooperating. Detective Aguirre allegedly told appellant that if he "would sign or say what they were saying had happened," then they would let appellant see his wife. Appellant testified that he asked to speak to other family members and, again, the detectives declined to allow him to do so. Appellant also said that he said, "I need to speak to an attorney," but Detective Aguirre responded:

Come on, Saul. You're just being selfish. We can't let you do that. If you do that, then we won't be able to talk to the Assistant D.A.'s on your behalf. We know you have a clean record. We know-you're a good guy. With your clean record, you'll probably get a bond and be out by Monday, and then you can straighten all this out.

Detective Aguirre also allegedly told appellant that he had enough to arrest him, but if appellant "told them what they were saying," it would just be him. Otherwise, appellant said, they would arrest his sister-in-law and his wife as well. Appellant...