Jimenez v. State

• Court: Texas Court of Appeals
• Writing for the Court: Federico G. Hinojosa
• Citation: Jimenez v. State, 67 S.W.3d 493 (Tex. App. 2002)
• Decision Date: 24 January 2002
• Docket Number: No. 13-98-00465-CR.,13-98-00465-CR.
• Parties: Jose Bernardo JIMENEZ, Appellant, v. The STATE of Texas, Appellee.

67 S.W.3d 493

Jose Bernardo JIMENEZ, Appellant, v. The STATE of Texas, Appellee.

No. 13-98-00465-CR.

Court of Appeals of Texas, Corpus Christi.

January 24, 2002.

Rehearing Overruled February 21, 2002.

Joseph A. Connors, III, McAllen, for Appellant.

John A. Olson, Assistant County & District Attorney, Yolanda De Leon, District Attorney, Brownsville, for Appellee.

Before Chief Justice VALDEZ, and Justices HINOJOSA and RODRIGUEZ.

OPINION ON REMAND

Opinion by Justice FEDERICO G. HINOJOSA.

A jury found appellant, Jose Bernardo Jimenez, guilty of murder, and the trial court assessed his punishment at confinement for forty years. By twelve issues, appellant contends: (1) the evidence is legally insufficient to show the truck alleged to have been stolen by appellant had a market value of more than $750.00; (2) the evidence is legally insufficient to prove the felony theft element; (3) the trial court erred in making an affirmative deadly weapon finding; (4) the trial court erred in admitting appellant's written confession; (5) the trial court abused its discretion in finding that appellant knowingly, intelligently and voluntarily waived his right to a lawyer when he made a written confession; (6) the trial court erred in denying appellant's motion for new trial; and (7) appellant was subjected to double jeopardy.

In an opinion issued by this Court on August 24, 2000, we held that appellant's confession was illegally gained and erroneously admitted into evidence. Jimenez v. State, 28 S.W.3d 702, 706 (Tex.App.-Corpus Christi 2000), vacated, 39 S.W.3d 229 (Tex.Crim.App.2001). We reversed the judgment of the trial court and remanded the case to the trial court for further proceedings. Id. The Texas Court of Criminal Appeals subsequently vacated our judgment and remanded the case to this Court for our reconsideration in light of that court's opinion in State v. Ross, 32 S.W.3d 853 (Tex.Crim.App.2000). We now affirm.

A. Background

On June 4, 1989, Candelario Rivera traveled to South Padre Island to fish with some friends. At approximately 7:30 p.m. he returned to his Ford pickup truck to retrieve some gear. As he and a friend were approaching the vehicle, Rivera noticed the truck was backing out of its parking space. Someone was stealing his truck. Rivera ran toward the truck and hit the window, but was unable to see who was in the vehicle. Rivera then called 911 and reported that someone was stealing his vehicle.

After the vehicle had been reported stolen, police officers in the area were notified to be on the look out for the truck. Upon receiving the dispatch call around 7:48 p.m., Deputy Arnold Flores proceeded to the intersection of Highway 48 and Farm to Market Road 511 because most stolen vehicles head toward the Brownsville Gateway Bridge which goes into Mexico, and Highway 48 is "one of the only roads that heads that way" from the Island. When a truck, matching the description of the stolen vehicle, first approached Deputy Flores's position, it was traveling at a normal rate of speed. As the vehicle passed Deputy Flores, the officer began to follow it with his lights and sirens on, the vehicle began to travel at a high rate of speed. During the pursuit, the driver of the stolen vehicle traveled at speeds in excess of seventy to eighty-five miles per hour and drove in lanes against the traffic.¹

The driver of the stolen truck ignored a red light at the intersection of Highway 48 and Price Road. As the vehicle traveled into the intersection, it collided with a yellow vehicle that was turning from Price Road into the intersection.² The collision flipped the truck over onto its roof, and the yellow vehicle split in half. There were five individuals in the yellow vehicle, and two were killed in the accident.³

As Deputy Flores proceeded into the intersection toward the overturned truck, he saw an individual climbing out of the driver's side window. The individual ran from the intersection to a residential area. Deputy Flores began to chase after him, but lost the individual in the residential area. Other officers joined the search for the individual, and appellant was found hiding on the roof of a house by Deputy George Delgado.

B. Procedural History

On October 25, 1989, appellant was indicted for the felony murder of Brenda Lee Alvarado.⁴ Appellant was also indicted for the felony murder of Maria de Jesus Alvarado.⁵ On February 9, 1990, the State informed the trial court that the cases would be tried separately. On that same day, after a pretrial hearing, the trial court denied appellant's motion to suppress his confession. The trial began on February 20, 1990, and on February 22, 1990, the jury found appellant guilty of murder as charged in the indictment. On April 5, 1990, the trial judge assessed appellant's punishment at forty years imprisonment and ordered him to pay full restitution in the amount of $61,167.21. The judgment in cause number 89-CR-1060 was signed on May 20, 1990.

On May 14, 1990, appellant pleaded guilty to the indictment in cause number 89-CR-1059. The trial court found him guilty and assessed his punishment at sixty years imprisonment. The judgment in cause number 89-CR-1059 was signed on May 18, 1990.

On June 2, 1998, the case was transferred from the 107th District Court of Cameron County, Texas to the 197th District Court of Cameron County, Texas. On July 15, 1998, the Texas Court of Criminal Appeals granted appellant's request for a writ of habeas corpus and allowed him an out-of-time appeal because his trial counsel had failed to file a notice of appeal or withdraw as counsel. On August 25, 1998, appellant filed his notice of appeal. On August 31, 1998, appellant filed a motion for new trial. On September 14, 1998, the trial court denied appellant's motion for new trial.

C. The Suppression Hearing

In his fourth, fifth, and sixth issues, appellant contends the trial court erred in failing to suppress his written confession.⁶ Appellant argues the statement was obtained after he invoked his right to counsel, and the trial court abused its discretion in finding that appellant had knowingly, intelligently, and voluntarily waived his right to counsel. In his seventh, eighth, and ninth issues, appellant contends the trial court erred in admitting his confession during trial because it was involuntary in that it was a product of coercion through the "acore tactics" of law enforcement officers.

Appellant, in his pretrial motion to suppress, alleged that his confession resulted from: (1) inadequate warning of statutory and constitutional rights; (2) involuntariness because at the time the confession was made appellant was still under the influence of alcohol and in a state of shock; (3) improper inducements by law enforcement officers; (4) coercion through the "acore tactics" of law enforcement officers immediately before making his confession; (5) the lack of advice concerning the nature of the offense that the interrogation related to; and (6) denial of the right to counsel because the statement was obtained by continuing interrogation after appellant had requested to speak to an attorney.

At the hearing on the motion to suppress appellant's confession, Sergeant Luis Martinez and appellant testified.

Martinez testified he first contacted appellant on June 4, 1989, at approximately 8:20 p.m. Martinez had been called by Lieutenant George Gavito to come to the Sheriff's Department to interview a suspect apprehended in a traffic accident. Appellant had been arrested for his involvement in a fatal traffic accident. Before interviewing appellant, Martinez warned him of his constitutional rights. Appellant was cooperative and never indicated he wanted to terminate the interview or talk to a lawyer. Martinez made no promises to appellant, did not coerce him, and was not wearing a gun during the interview. Martinez believed that appellant was not intoxicated during the interview, and appellant did not exhibit the symptoms of shock. After giving a statement, appellant was afforded the opportunity to read it before he signed it. The signing of the statement was witnessed by Deputy Roy Armendariz and Elsie Guerra.

On cross-examination, Martinez testified he did not know how long appellant had been in custody before the interview. He questioned appellant for about forty minutes, but knew nothing about the conditions under which appellant was kept before or after the interview. Martinez did not know if anyone else had talked to appellant before he arrived to interview him. Roy Armendariz and Elsie Guerra were present during the entire interview.

Appellant testified that Lieutenant Gavito took him from the scene of the accident to the Sheriff's Department. While in the car, Gavito mistreated him and continually asked him questions, but at no time did Gavito inform appellant of his rights. Appellant told Gavito that he needed an attorney. Once at the Sheriff's Department, Gavito continued to beat appellant in the presence of two other deputies. Before Martinez came to question appellant, Gavito told appellant "to say everything, to testify." And he kept telling [him], "Yes, you are the one that stole the cars and he would beat up on [him]." Appellant told Gavito that "[he] didn't know anything." Appellant intended that to mean that he did not want to say anything to the officers. Gavito told appellant to say anything that could help him.

When appellant made the statement to Martinez, Guerra and Armendariz were not present. Martinez spoke to appellant in English and appellant "[did] not understand much English." Appellant did not read the statement he made before he signed it. Appellant made the statement because he was scared as a result of the treatment he received from Gavito. Gavito said to him, "You're going to go with [Martinez]. You're going to talk to him, and you're going to tell him everything he tells you to say."

At the conclusion of the suppression hearing, the trial court...