Monge v. State

• Decision Date: 13 January 2009
• Docket Number: No. 14-07-00468-CR.,14-07-00468-CR.
• Citation: Monge v. State, 276 S.W.3d 180 (Tex. App. 2009)
• Parties: Abelino MONGE, Appellant v. The STATE of Texas, Appellee.
• Court: Texas Court of Appeals

276 S.W.3d 180

Abelino MONGE, Appellant v. The STATE of Texas, Appellee.

No. 14-07-00468-CR.

Court of Appeals of Texas, Houston (14th Dist.).

January 13, 2009.

George McCall Secrest, Jr., Brian Benken, Houston, TX, for appellants.

Dan McCrory, Houston, TX, for the State.

Panel consists of Justices ANDERSON and FROST, and Senior Justice HUDSON.^*

OPINION

J. HARVEY HUDSON, Senior Justice.

Following a plea of guilty, appellant, Abelino Monge, was convicted of capital murder and was incarcerated to serve a life sentence. In one issue, appellant challenges the trial court's denial of his motion to suppress his recorded confession. He contends he was unlawfully arrested, his subsequent confession was tainted under the "fruit of the poisonous tree" doctrine, and the State did not prove attenuation of the taint. We affirm.

BACKGROUND

On July 12, 2005, Detective Mark Reynolds arrived at a murder scene in which the victim had been shot twice in the back. Although the initial investigation did not produce any suspects, Reynolds later found, in the victim's back yard, a cell phone that had been issued to appellant. Reynolds obtained the phone records and learned that, on the day of the murder, the cell phone had been used to place calls to, and receive calls from, the victim. The phone records also listed calls between appellant, the victim, and a third individual, Margil Ochoa.

Reynolds drove to appellant's workplace on the morning of July 21, 2005, to question appellant about the cell phone. Appellant responded that his cell phone had been stolen, but he voluntarily accompanied Reynolds to the sheriff's department for further questioning. Upon arrival, appellant was placed in a small windowless room, where he was briefly questioned. Appellant denied any involvement in the murder. He voluntarily provided a DNA saliva sample, consented to a search of his vehicle and residence, and submitted to a polygraph examination that ended at approximately 6:00 p.m. Having been told he was free to leave, appellant instead fell asleep on the floor of the room where he had been interviewed.¹ There would be no further contact between appellant and the law-enforcement officers until the following morning.

Meanwhile, in a different interview room, the detectives were separately questioning Margil Ochoa, who appeared to be more forthcoming with information than appellant had been. At approximately midnight on July 22, Ochoa admitted his and appellant's involvement in the murder, specifically identifying appellant as the "shooter." After several more hours of questioning, Ochoa signed a written confession that again implicated him and appellant in the murder. At no time did the deputies procure an arrest warrant for appellant.

At approximately 7:00 a.m., the district attorney agreed to accept capital murder charges against appellant and Ochoa. Reynolds informed appellant he was under arrest, and placed him in handcuffs. While Reynolds was processing the paperwork, a second set of detectives decided to question appellant again. Appellant was given Miranda warnings. He was then advised that Ochoa was also under arrest, and that Ochoa had implicated appellant in the crime. Specifically, one of the detectives told appellant:

I was here late last night too whenever all this was going on and I went and picked up Ochoa and he's trying to help hi[m]self. You know what I'm saying?

...

....

I'm going to tell you up front ... that your fall partner has given you up.² He's given every detail about what took place from the time you guys left climbing over the fence, just about knocking him over, going down, sliding down the bayou, swimming in the bayou.... You know, they, they know everything at this point and all it is, to getting you convicted.... And you know here you have, uh one, one guy that's trying to help hi[m]self, he's concerned about his family, he doesn't wanna spend the rest of his life in jail, you know he's honestly trying to help hi[m]self. You know he's admitting that, you know, this just wasn't supposed to happen like this.... You know what I mean? We have his story.

....

But I can tell you ... everything that he's said is collaborated [sic] by the dead guy[']s girlfriend, so we know that he's telling the truth from that point on.

After learning that Ochoa had implicated him, appellant confessed to shooting the victim twice. The interview, including appellant's confession, was recorded and videotaped.

Appellant was indicted for capital murder. Before trial, appellant moved to suppress his confession, contending it was tainted by a warrantless, unlawful arrest. Appellant did not testify at the suppression hearing, which spanned several days. The trial court, which ultimately denied the suppression motion, found that appellant was free to leave the sheriff's department at all times until he was actually placed in custody at 4:00 a.m. on July 22. The court further concluded that the detectives improperly failed to procure an arrest warrant, and that the warrantless arrest was not excused by article 14.04 of the Code of Criminal Procedure. However, the court determined that the taint of the warrantless arrest was attenuated.

Appellant indicated his intent to appeal the trial court's ruling, and then pled guilty to the charged offense. The court sentenced appellant to confinement for life in the Texas Department of Criminal Justice. This appeal ensued. In one point of error, appellant contends the trial court abused its discretion by denying his motion to suppress because the State failed to prove attenuation of the taint of his unlawful arrest.

STANDARD OF REVIEW

We employ a bifurcated standard of review to consider a trial court's ruling on a motion to suppress evidence. Carmouche v. State, 10 S.W.3d 323, 327 (Tex.Crim. App.2000); Turner v. State, 252 S.W.3d 571, 576 (Tex.App.-Houston [14th Dist.] 2008, pet. ref'd). We will defer almost entirely to the trial court's findings of historical fact that are supported by the record, especially when the findings relate to an evaluation of credibility and demeanor. See Turner, 252 S.W.3d at 576 (citing Guzman v. State, 955 S.W.2d 85, 89 (Tex.Crim. App.1997)). We afford the same level of deference to rulings on mixed questions of law and fact when the resolution of those issues turns upon an evaluation of credibility and demeanor. See State v. Ross, 32 S.W.3d 853, 856 (Tex.Crim.App.2000); Guzman, 955 S.W.2d at 89. By contrast, we review de novo the issues that do not depend upon credibility and demeanor. See Turner, 252 S.W.3d at 576.

The trial court is the sole fact-finder at a suppression hearing and may freely believe or disbelieve all or part of the evidence presented. See Ross, 32 S.W.3d at 855; Weems v. State, 167 S.W.3d 350, 354-55 (Tex.App.-Houston [14th Dist.] 2005, pet. ref'd). Therefore, we review the evidence in the light most favorable to the trial court's ruling. State v. Kelly, 204 S.W.3d 808, 818 (Tex.Crim.App.2006); Rothstein v. State, 267 S.W.3d 366, 371 (Tex.App.-Houston [14th Dist.] 2008, no pet.). We will sustain the trial court's ruling if it is reasonably supported by the record and is correct under any applicable legal theory. See Ross, 32 S.W.3d at 855-56.

ANALYSIS

The "fruit of the poisonous tree" doctrine generally precludes the use of evidence, both direct and indirect, obtained following an illegal arrest. See Wong Sun v. United States, 371 U.S. 471, 484, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963); State v. Iduarte, 268 S.W.3d 544, 550 (Tex.Crim. App.2008). Here, the State does not challenge the illegality of appellant's warrantless arrest, which did not fit within any of the recognized exceptions to the warrant requirement. Instead, the State contends the nexus between the unlawful arrest and appellant's confession was so attenuated as to dissipate the taint of the prior illegality. See Wong Sun, 371 U.S. at 487-88, 83 S.Ct. 407. After reviewing the record, we agree.

Evidence that is sufficiently attenuated from the unlawful arrest is not considered to have been obtained therefrom. See Sims v. State, 84 S.W.3d 805, 810 (Tex.App.-Houston [1st Dist.] 2002, no pet.). The prosecution carries the burden of proving attenuation. See Brown v. Illinois, 422 U.S. 590, 604, 95 S.Ct. 2254, 45 L.Ed.2d 416 (1975); Garcia v. State, 3 S.W.3d 227, 242 (Tex.App.-Houston [14th Dist.] 1999), aff'd, 43 S.W.3d 527 (Tex. Crim.App.2001). In deciding whether appellant's confession, which was given following an illegal arrest, was sufficiently attenuated as to permit the use of the confession at trial, we are to consider the following factors:

(1) whether Miranda warnings were given;

(2) the temporal proximity of the arrest and the confession;

(3) the presence of intervening circumstances; and

(4) the purpose and flagrancy of the official misconduct.

See Brown, 422 U.S. at 603-04, 95 S.Ct. 2254; Bell v. State, 724 S.W.2d 780, 788 (Tex.Crim.App.1986); Weems, 167 S.W.3d at 359. These four factors do not necessarily carry equal weight. See Bell, 724 S.W.2d at 788-90 (generally describing the relative importance of each factor); Self v. State, 709 S.W.2d 662, 668 (Tex.Crim.App. 1986). We will apply each of these factors, in turn, to the evidence adduced at the suppression hearing.

A. Whether Miranda Warnings were Given

The giving of Miranda warnings, standing alone, does not sufficiently attenuate the taint of an arrest in violation of the Fourth Amendment. See Brown, 422 U.S. at 603, 95 S.Ct. 2254. As the Court of Criminal Appeals observed, "the right to be free from warrantless arrest is at least equal in magnitude to the state and federal constitutional right to be free from unreasonable searches and seizures.... [T]he State cannot violate the Fourth Amendment with impunity by washing its hands in the procedural waters of the Fifth Amendment[.]" Bell, 724 S.W.2d at 787. However, Miranda warnings, while not the only consideration, remain an important factor in...