Hernandez v. State, 03-95-00696-CR

CourtCourt of Appeals of Texas
Citation952 S.W.2d 59
Docket NumberNo. 03-95-00696-CR,03-95-00696-CR
PartiesIgnacio HERNANDEZ, Appellant, v. The STATE of Texas, Appellee.
Decision Date24 July 1997

Page 59

952 S.W.2d 59
Ignacio HERNANDEZ, Appellant,
The STATE of Texas, Appellee.
No. 03-95-00696-CR.
Court of Appeals of Texas,
July 24, 1997.

Page 63

Keith S. Hampton, Austin, for appellant.

Ronald Earle, District Attorney, Jonathan D. Stick, Assistant District Attorney, Austin, for state.

Before CARROLL, C.J., and ABOUSSIE and B.A. SMITH, JJ.


A jury found appellant guilty of capital murder. Tex. Penal Code Ann. § 19.03(a)(2) (West 1994). The death penalty was not sought and the district court assessed punishment at imprisonment for life. Tex. Penal Code Ann. § 12.31(a) (West 1994); Tex.Code Crim. Proc. Ann. art. 37.071, § 1 (West Supp.1997).

The body of Alfred Deltoro was found hanging from a tree branch on the morning of November 5, 1994. Deltoro's hands were tied behind his back and his pants had been removed. Deltoro had been beaten and kicked, but the cause of death was ligature strangulation. On November 8, the police received a tip that a man named Jose Cruz was involved in the murder. Interviewed by the police, Cruz named appellant as the murderer. Appellant was arrested for multiple traffic offenses on November 17 and, on that day, gave the police a written statement saying he was with friends at the time Deltoro was murdered. These friends did not confirm appellant's alibi. The next day, November 18, appellant was interrogated for four hours. At the conclusion of this interrogation, which was videotaped, appellant confessed that he and Cruz assaulted and robbed Deltoro, then hung him from the tree to make sure he was dead. Appellant also signed a written confession based on his oral statement.

In three points of error, appellant contends he did not knowingly and voluntarily waive his rights before making his incriminating statements to the police, and that the statements were in fact involuntary. Appellant's five remaining points are grounded on the contention that one of the jurors in this cause was absolutely disqualified from serving. We will overrule each point and affirm.


1. Standard of review

Appellant urges that we conduct a de novo review of the admissibility of his confessions, citing Ornelas v. United States, 517 U.S. 690, 116 S.Ct. 1657, 134 L.Ed.2d 911 (1996). In that case, the Supreme Court held that in federal prosecutions, appellate review of probable cause and reasonable suspicion questions should be conducted de novo. Nothing in the opinion suggests that this holding applies to state prosecutions.

The Court of Criminal Appeals has recently articulated the standard of review to be applied to mixed questions of law and fact:

When the courts of appeals analyze a trial court's denial of a motion to suppress

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evidence they must be deferential to the trial court's judgment, not only as to the historical facts, but also as to the legal conclusions to be drawn from the historical facts--at least so long as it appears the trial court has applied the correct standard of law to those historical facts. They should reverse the trial court's decision only for an abuse of discretion; that is to say, only when it appears that the trial court applied an erroneous legal standard, or when no reasonable view of the record could support the trial court's conclusion under the correct law and the facts viewed in the light most favorable to its legal conclusion.

DuBose v. State, 915 S.W.2d 493, 497-98 (Tex.Crim.App.1996); see also State v. Carter, 915 S.W.2d 501, 504 (Tex.Crim.App.1996). The court revisited this question in Villarreal v. State, 935 S.W.2d 134 (Tex.Crim.App.1996), a case producing seven opinions. The author of DuBose and Carter wrote that while those opinions "opted for a standard for review that was perhaps a little too categorical in the direction of deferential review," they continue to "make sense, at least as an articulation of a general rule of appellate review." Id. at 142 (Clinton, J., concurring). Three other judges reaffirmed DuBose and Carter. Id. at 140-41 (McCormick, P.J., concurring), 148 (Keller, J., concurring), & 156 (Meyers, J., dissenting). DuBose has not been overruled and remains the controlling precedent to be applied in this cause. See also Dinkins v. State, 894 S.W.2d 330, 348 (Tex.Crim.App.1995); Alvarado v. State, 853 S.W.2d 17, 23 (Tex.Crim.App.1993); Romero v. State, 800 S.W.2d 539, 543 (Tex.Crim.App.1990); Rodriguez v. State, 939 S.W.2d 211, 215 (Tex.App.--Austin 1997, no pet.).

2. Waiver of rights

Appellant cannot read or speak English. The interrogation of appellant on November 18 was conducted in Spanish by Austin police officer Ernest Pedraza. The entire interrogation was videotaped, and this videotape was introduced in evidence. Also introduced was a transcription of the videotape both in Spanish and in English translation. Throughout most of the interrogation, appellant continued to assert his alibi and denied any knowledge of the murder. Eventually, however, appellant confessed his involvement in the crime, saying it had been instigated by Cruz. While the videotape continued to run, Pedraza prepared a written confession which was signed by appellant after Pedraza read it to him in Spanish. This written confession was also introduced in evidence.

Appellant contends the oral and written confessions do not reflect the knowing, intelligent, and voluntary waiver of his rights required by statute. Tex.Code Crim. Proc. Ann. art. 38.22, §§ 2(b), 3(a)(2) (West 1979 & Supp.1997). A knowing and voluntary waiver of rights is also constitutionally required. Miranda v. Arizona, 384 U.S. 436, 475, 86 S.Ct. 1602, 1628, 16 L.Ed.2d 694 (1966); U.S. Const. amends. V, XIV. 1 The State bears the burden of proving the required waivers. Miranda, 384 U.S. at 475, 86 S.Ct. at 1628; Kelley v. State, 817 S.W.2d 168, 173 (Tex.App.--Austin 1991, pet. ref'd).

At the start of the videotaped questioning, Pedraza advised appellant of his constitutional and statutory rights and asked him if he understood them. The transcription of the videotape indicates that appellant's response was unintelligible. Seizing on this, appellant argues that the State failed to prove that appellant understood and voluntarily waived his rights. Appellant relies on the established principle that a waiver cannot be presumed from a silent record. Carnley v. Cochran, 369 U.S. 506, 516, 82 S.Ct. 884, 890, 8 L.Ed.2d 70 (1962).

The record before us is not silent. In the transcript of the videotape, immediately after appellant's unintelligible response to Pedraza's inquiry, the officer read to appellant a printed acknowledgment and waiver of rights form and showed him where to sign "so that it will be known that you understood those" rights. Appellant then signed the form, as shown on the videotape. Pedraza testified at the hearing on the motion to suppress that he advised appellant of his rights as required

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by law before taking the statement, and that appellant indicated that he understood them. While the quality of the videotape may have rendered appellant's oral response unintelligible, the record as a whole affirmatively supports a finding that appellant knowingly, intelligently, and voluntarily waived his rights before giving the oral statement.

At the conclusion of the interrogation and after typing the written confession, Pedraza read to appellant the advice of rights printed on the confession form: 2

OK, let me read it to you. At 7:45 in the afternoon, evening the 17th of, the 18th of November 1994 ... if before you clean this statement I, Ignacio Volano Hernandez, being in the police station ... My rights we read me by Sgt. Pedraza. I have the right to keep silent and say absolutely nothing ... Any statement that you make can be used against you in the cause in which you are accused. Any statement that you make can be used as proof against you in the Court. You have the right to keep your silences in, right, you have the right to have an attorney present to that you may be advised before or that question are asked you and during the time that questions are being asked. If you cannot employee and attorney, you have the right to have assign to you so that you may be advised before or during the time you are asked question. You have the right to finish this interview at any moment you so wish. Do I understand these rights?

Appellant answered, "Yes." Appellant characterizes Pedraza's reading of the rights form as "nonsensical" and urges that it was too far removed from the statutory requisites to be characterized as reasonable compliance with the article 38.22. Appellant adds that read literally, he acknowledged only that Pedraza understood the recited rights.

It must be remembered that the transcription reflects the product of two translations, first by Pedraza from English to Spanish and then by the interpreter from Spanish to English. Comparing Pedraza's reading of the rights form as reflected in the transcription to the rights listed in article 38.22, section 2, we find only one notable variation from the statutory language: Pedraza told appellant he could "finish," rather than "terminate," the interview at any time. While the two words are not precise synonyms in this context, we do not believe that this single word substitution substantially altered the meaning. The district court could reasonably conclude that the advice of rights read to appellant by Pedraza was adequate to convey the meaning of article 38.22, section 2. See Sosa v. State, 769 S.W.2d 909, 916 (Tex.Crim.App.1989) (substantial conformity to statutory language sufficient). Further, we believe that it is obvious from the context that appellant acknowledged his personal understanding of the rights read to him by the officer.

The district court did not abuse its discretion by concluding that appellant knowingly, intelligently, and voluntarily waived his statutory and constitutional rights before giving his oral and written confessions. Point of error six is...

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