Hernandez v. State

• Decision Date: 30 March 2017
• Docket Number: NUMBER 13-14-00245-CR
• Citation: 533 S.W.3d 472
• Parties: Hector Vargas HERNANDEZ, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Appeals

533 S.W.3d 472

Hector Vargas HERNANDEZ, Appellant,

v.The STATE of Texas, Appellee.

NUMBER 13-14-00245-CR

Court of Appeals of Texas, Corpus Christi-Edinburg.

Delivered and filed March 30, 2017

Discretionary Review Refused July 27, 2017

Hon. Fabian Guerrero, Edinburg, for Appellant.

Hon. Luis V. Saenz, Dist. Atty., Hon. Jennifer M. Avendano, Asst. Dist. Atty., Brownsville, for Appellee.

Before Justices Contreras, Longoria, and Hinojosa

Opinion by Justice Hinojosa

Appellant Hector Vargas Hernandez appeals his convictions for continuous sexual abuse of a child and two counts of aggravated sexual assault of a child, all first-degree felonies. See TEX. PENAL CODE ANN. §§ 21.02, 22.021 (West, Westlaw through 2015 R.S.). A jury returned a verdict of guilty and assessed punishment of forty years' imprisonment for continuous sexual abuse of a child and ten years' imprisonment for each count of aggravated sexual assault of a child. The trial court sentenced appellant accordingly and ordered the sentences to run concurrently. By three issues, appellant argues the trial court erred in (1) denying appellant's motion to suppress his statement, (2) denying appellant's request for a jury instruction under article 38.23 of the code of criminal procedure, and (3) "commenting and ordering the jury to go back and correct the verdict form." We affirm.

I. MOTION TO SUPPRESS

By his first issue, appellant argues the trial court erred in denying appellant's motion to suppress his confession. Specifically, appellant maintains that he was not adequately advised of his rights because the warnings read to him "contained four warnings rather [than] the five contemplated by Article 38.22." Appellant further argues that the "written admonishments in Spanish ... consisted of a fatally defective translation using the word 'supracitada' which is a Portuguese word[.]" As a result, appellant maintains that "his waiver [of his rights] was not voluntar[ily], knowing[ly] or intelligently given."¹

A. Suppression Hearing

Appellant's counsel argued during a pre-trial hearing that appellant's confession should be suppressed because "[appellant] was not properly instructed on his constitutional rights, and in the alternative, he didn't understand them." The State presented only one witness at the hearing—Alicia Garcia, an officer with the Harlingen Police Department.²

Officer Garcia, reading from a written form, advised appellant of his Miranda³ rights in Spanish prior to questioning him. The warnings provided to appellant were as follows:⁴

1. You have the right to have an attorney present to give you advice before and during interrogation.

2. If you are not able to obtain the services of an attorney on your own, you have the right that one be appointed to you so that he can give you advice before or during your interrogation.

3. You have the right to remain silent and not make any declarations or statements, and anything that you say may be used as evidence against you in a court of justice.

4. You have the right to end said interrogation at any time that you wish.

The Code determines that the officer who takes the defendant's declarations must give him the aforementioned warnings. The defendant, then, must knowingly, intelligently, and voluntarily waive his right to an attorney and the right to remain silent. Failure to comply with this will invalidate his confession.

Appellant initialed next to each of the enumerated rights and signed at the bottom of the written form. Appellant told Officer Garcia that he understood his rights. He then stated "Go ahead. I want to talk. I also want to vent." The written warnings, appellant's video-recorded statement, and the English translation of appellant's recorded statement were admitted into evidence.

Following Officer Garcia's testimony, appellant's counsel presented further argument that appellant "was not informed properly of his rights [.]" Specifically, appellant's counsel objected to the use of the word "supracitada" in the following sentence: "El Codigo determina que el oficial que toma la declaracion del acusado debe darle la advertencia supracitada." The court interpreter informed the trial court on the record that "if we separate the word 'supra citada,' it means 'aforementioned.' " The interpreter translated the sentence in its entirety as reading, "The Code determines that the officer who takes the defendant's declarations must give him the aforementioned warnings." Appellant's counsel clarified that he was not arguing that appellant did not understand each individual right that was read to him. He was arguing only that "supracitada" is not a word in the Spanish language, and therefore, "[appellant's] rights were incorrectly given to him." The trial court denied appellant's motion to suppress.

At a subsequent pre-trial hearing, appellant's counsel urged the following additional ground for suppression of appellant's statement:

I'd ask the Court to take note that the Spanish version of my client's rights being entered into evidence as part of that hearing do not comply with Article 38.22. And given that there are five particular rights, which my client is supposed to receive before his statement is to be used as evidence, this waiver of rights only has four lineated rights. What this waiver did was combine ... rights that are supposed to be read to my client, and because of that, I'm asking that my client's statement not be allowed and used as evidence in this proceeding.

The trial court again denied appellant's motion to suppress, and later issued the following findings of fact and conclusions of law:⁵

[A]t the very beginning of the video Investigator Alicia Garcia told [appellant] that he ... did not have to speak with her. The court finds [appellant] voluntarily agreed to speak with Investigator Alicia Garcia....

[I]nvestigator Alicia Garcia told [appellant] that she was going to read him ... his rights, and that if he did not understand her Spanish to please tell her he ... did not understand her Spanish, and if you do not want to proceed with [sic] do not have to proceed (with the interview)....

Investigator Lopez witnessed Investigator Alicia Garcia reading the Miranda rights to [appellant] and Investigator Lopez signed the document as witness. The video most importantly shows [appellant] signing his initials on each right read to him....

[A]t the end of the reading of the Miranda rights, [appellant] says he does not know how to read. The court finds the Miranda rights do not have to be read by [appellant], but must be read to him by an officer.... [T]he Miranda rights were accurately read to [appellant] and [he] understood his rights....

[A]t the end of the reading of the Miranda rights[,] Investigator Alicia Garcia AGAIN told [appellant] that he did not have to speak with her, and if he chose to speak with her, he could stop at any time....

AFTER all of the rights were read[,] Investigator Alicia Garcia asked [appellant] if he wanted to talk with her about the allegations or not. [Appellant] responded by asking Investigator Alicia Garcia if he spoke with her could he still hire a lawyer afterward. The investigator answered ["]Uh huh ["] and she nods up and down indicating yes....

[Appellant] said [in Spanish] "Proceed, I want to talk.... I want to vent." ...

[Appellant] was read his Miranda rights in Spanish. [Appellant] understood his Miranda rights. [Appellant] does not read or write the English and Spanish languages; however, there is no requirement that [appellant] be able to read the Miranda rights to himself in Spanish and/or English to himself.... [T]he rights must be read to [appellant] preferably in his native language and in the language [appellant] understand[s]. [Appellant] was read the Miranda rights in Spanish, and [appellant] understood his rights. [Appellant] chose out of his own free will, freely and voluntary to speak to Investigators Garcia and Lopez on video tape.

[Appellant] was not tricked into giving a confession and [appellant] was told on multiple occasions that he did not have to speak to the investigators. [Appellant] had multiple opportunities to say he did not want [to] speak with the investigators and [appellant] had multiple opportunities to say he did not want to speak with the investigators until he hired an attorney or one was appointed to represent him.

B. Standard of Review

In reviewing the trial court's ruling on a motion to suppress statements made as a result of custodial interrogation, we apply a bifurcated standard of review. Pecina v. State, 361 S.W.3d 68, 78–79 (Tex. Crim. App. 2012) (citing Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim. App. 1997) ); Nelson v. State, 463 S.W.3d 123, 126 (Tex. App.—Houston [1st Dist.] 2015, pet. ref'd). We review the ruling in light of the totality of the circumstances, giving total deference to the trial court on questions of historical fact, as well as its application of law to fact questions that turn on credibility and demeanor. Pecina, 361 S.W.3d at 79 ; Leza v. State, 351 S.W.3d 344, 349 (Tex. Crim. App. 2011). But we review de novo the trial court's rulings on questions of law and mixed questions of law and fact that do not depend on credibility determinations. Pecina, 361 S.W.3d at 79 ; Leza, 351 S.W.3d at 349. We view the record in the light most favorable to the trial court's ruling and reverse the judgment only if it lies outside the zone of reasonable disagreement. Hereford v. State, 339 S.W.3d 111, 118 (Tex. Crim. App. 2011) ; Nelson, 463 S.W.3d at 126.

C. Article 38.22

Appellant argues that the warnings administered to him prior to questioning did not comply with article 38.22 of the code of criminal procedure. See TEX. CODE CRIM. PROC. ANN. art. 38.22 (West, Westlaw through 2015 R.S.).

1. Applicable Law

"In Miranda v. Arizona, the Supreme Court crafted safeguards to protect this 'privilege against self-incrimination' in the inherently coercive atmosphere of custodial interrogations." Pecina, 361 S.W.3d at 75 (citing Miranda v....