Gaitan v. State, NUMBERS 13–14–00661–CR

• Decision Date: 10 November 2016
• Docket Number: NUMBERS 13–14–00661–CR
• Parties: Elias GAITAN a/k/a Elias Gaitan Jr., Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Appeals

533 S.W.3d 19

Elias GAITAN a/k/a Elias Gaitan Jr., Appellant,

v.The STATE of Texas, Appellee.

NUMBERS 13–14–00661–CR

Court of Appeals of Texas, Corpus Christi-Edinburg.

Delivered and filed November 10, 2016

Rehearing En Banc Overruled January 18, 2017

Discretionary Review Refused April 12, 2017

ATTORNEY OF RECORD FOR THE APPELLANT: Joseph Moreno, Attorney at Law, 23409 El Paso Drive, Harlingen, TX 78552.

ATTORNEYS OF RECORD FOR THE APPELLEE: Luis V. Saenz, District Attorney, Rene B. Gonzalez, Assistant District Attorney, 964 E. Harrison, Brownsville, TX 78520-7123.

Before Justices Benavides, Perkes and Longoria

MEMORANDUM OPINION

Memorandum Opinion by Justice Perkes

Appellant Elias Gaitan appeals his convictions for continuous sexual abuse of a child, aggravated sexual assault of a child, and two counts of indecency with a child. See TEX. PENAL CODE ANN. §§ 21.02, 21.11(a)(1), 22.021(a)(1) (West, Westlaw through 2015 R.S.). After a jury found him guilty of the offenses, the trial court sentenced appellant to life imprisonment in the Texas Department of Criminal Justice-Institutional Division on the first two counts, and twenty years' imprisonment on counts three and four, to run consecutively. By two issues, appellant argues: (1) the trial court erred by denying appellant's motion to suppress his post-arrest statements; and (2) he received ineffective assistance of counsel. We affirm.

I. BACKGROUND ¹

Prior to trial, appellant filed a motion to suppress three statements made to law enforcement following his arrest. At the suppression hearing, the State presented the testimony of Brownsville Police Department Detective Samuel Lucio and introduced two video recordings of statements made by appellant. The evidence presented at the suppression hearing reflects the following.

A. First Statement

Detective Lucio was assigned to investigate allegations that appellant sexually abused his daughter over a period of years. Following appellant's arrest, Detective Lucio conducted a recorded interview with appellant at the Brownsville Police Department. At the outset of the conversation, appellant requested a "public defender." Detective Lucio then told appellant "that's what I was going to do. I was going to read you your rights and ask you if you wanted to give a statement without a lawyer." Detective Lucio stated "if you don't want to give a statement without a lawyer, that's fine." Appellant reiterated that he wanted a lawyer present during questioning. Detective Lucio then asked appellant "do you know what you're being charged with?" Detective Lucio proceeded to describe the allegations of sexual abuse. He explained, "I wanted to read you your rights and ask you questions about that." Appellant then volunteered that he was having problems with his wife and that they had recently separated. Detective Lucio replied "do you want to answer questions or not because I need to make you aware of your rights." Appellant again stated he wanted a lawyer and made another reference to issues with his wife.

Detective Lucio stated that "it's not the mom who's making the accusations. The one who is making the accusations is your daughter." He continued to explain that the child's mother was "shocked and hysterical when she found out what was going on." Detective Lucio proceeded to play a videotaped interview with appellant's daughter in which she detailed the allegations of sexual abuse. Following the video, Detective Lucio repeated the allegations before asking appellant "so you want to wait to talk to an attorney?" Appellant again stated he wanted a lawyer. Detective Lucio responded "[your daughter] said you would do this because she was going to have to learn anyway," and continued to describe the allegations. He said appellant's wife "almost had a nervous breakdown." The interview then concluded.

B. Second Statement

Appellant's father, Elias Gaitan Sr., arrived at the police station the following day and asked to speak to Detective Lucio about his son's "case." Gaitan Sr. expressed disbelief that appellant committed the alleged offenses. He also told Detective Lucio that "I know that if I talk to him, he is going to tell me the truth." Detective Lucio asked Gaitan Sr. if he wanted to speak to appellant, and he said yes. After clearing the request with his supervisor, Detective Lucio allowed Gaitan Sr. to speak to appellant in an interview room. Detective Lucio did not provide any instructions to Gaitan Sr. regarding what he should say to appellant. Only appellant and his father were present in the room which had a visible camera recording the conversation. Appellant did not deny the allegations but told Gaitan Sr. that his actions were not "by force."

C. Third Statement

Following the conversation, Detective Lucio escorted appellant back to his jail cell. As they neared the elevator to the jail cells, appellant asked when he could speak to a lawyer. Detective Lucio responded that an attorney would be appointed and he would be available if appellant's attorney wished to speak to him. Appellant replied that he wanted to work out a deal, that he was not forceful with his daughter, and that the sexual abuse did not occur as frequently as alleged. Detective Lucio then stated that once an attorney was appointed, he would be available. This conversation was not recorded.

D. Trial Court's Ruling

The trial court suppressed appellant's initial interview with Detective Lucio, but denied appellant's motion to suppress the second and third conversations.² The trial court issued the following findings of fact and conclusions of law:

FINDINGS OF FACT

1. The motion to suppress regarding the above numbered and styled cause concerns three (3) separate statements made by [appellant] while he was in custody.

....

3. The first statement occurred when [appellant] was questioned by Detective Lucio ... on November 26, 2012.

4. At the beginning of the conversation, [appellant] informed Det. Lucio that he would like an attorney.

5. Although Det. Lucio did not ask [appellant] any direct questions, Det. Lucio continued speaking with [appellant] after this request was made.

....

8. The second statement occurred the following day during a conversation between [appellant] and [his] father, [Gaitan Sr.]

9. [Gaitan Sr.] showed up at BPD wishing to speak with [appellant] regarding the allegations.

10. Neither Detective Lucio, nor any other police officer asked [Gaitan Sr.] to come to the Police Department.

11. [Gaitan Sr.] asked to speak to [appellant] out of his own concern for [his] well[-]being.

12. Neither Detective Lucio, nor any other police officer directed [Gaitan Sr.] to ask [appellant] any particular questions.

13. The conversation between [Gaitan Sr.] and [appellant] occurred in an interrogation room where the conversation was recorded.

14. It is apparent from comments made on the video that [Gaitan Sr.] and [appellant] were aware that their conversation was being recorded.

15. [Gaitan Sr.] is not, and never has been, a certified peace officer, police officer, or agent of the State.

16. The third statement took place between [appellant] and Detective Lucio.

17. After [appellant] spoke with [Gaitan Sr.], Detective Lucio escorted [appellant] back to his jail cell.

18. In the elevator on the way down to his cell, Detective Lucio informed [appellant] that he would be available to speak with him once [appellant] was appointed an attorney and could have counsel present during the conversation.

19. [Appellant] then made an admission to Detective Lucio regarding the allegations against him and stated that he wanted to work out a deal with the State.

20. [Appellant] volunteered these statements to Detective Lucio without any prompting or questioning from Detective Lucio or any other police officer.

CONCLUSIONS OF LAW

....

2. During the first conversation between [appellant] and Detective Lucio, Detective Lucio did not comply with [appellant's] constitutional and statutory rights as is provided in article 38.22, section 3(a)(1) and (2) in the Texas Code of Criminal Procedure.

3. Although no direct questions were made to [appellant], [appellant] did request a public defender at the beginning of this conversation.

4. Detective Lucio should not have continued speaking with [appellant] after [appellant] requested an attorney.

5. The second statement which occurred between [appellant] and his father ... was not the result of custodial interrogation.

6. [Gaitan Sr.] is not a certified police officer and went to BPD out of his own concern for [appellant's] well[-]being.

7. There is no evidence which suggests that [Gaitan Sr.] was trying to aid the Brownsville Police Department in any way, but was merely concerned about the welfare of his son.

8. [Gaitan Sr.] was not conducting an investigation in any official capacity.

9. Therefore, [Gaitan Sr.] was not acting as a state agent during this recorded conversation, the statement was not made as a result of custodial interrogation, and Art. 38.22 of the Texas Code of Criminal Procedure does not apply to its admissibility....

10. The third statement which took place between [appellant] and Detective Lucio was the result of res gestae statements that occurred without any prompting from the authorities.

11. This conversation was not done in an interrogation room or otherwise intimidating location that could conceivably have pressured [appellant] into making an incriminating statement.

....

13. Detective Lucio had no reason to know that informing [appellant] that he could meet with him after he was appointed an attorney would result in [appellant] eliciting an incriminating response....

14. [Appellant] voluntarily waived his right to counsel by initiating communication with BPD after he had previously requested an attorney.

15. Therefore, Art. 38.22 of the Texas Code of Criminal Procedure does not apply to the statement's admissibility....

At trial, Detective Lucio testified, without objection, that appellant did not deny the allegations of sexual abuse during the initial interview....