Ramirez v. State

• Citation: 76 S.W.3d 121
• Decision Date: 28 March 2002
• Docket Number: No. 14-01-00488-CR.,14-01-00488-CR.
• Parties: Felix RAMIREZ, Jr., Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Appeals

76 S.W.3d 121

Felix RAMIREZ, Jr., Appellant, v. The STATE of Texas, Appellee.

No. 14-01-00488-CR.

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

March 28, 2002.

J. Sidney Crowley, Houston, for appellants.

Carmen Castillo Mitchell, Houston, for appellees.

Panel consists of Justices ANDERSON, HUDSON, and FROST.

MAJORITY OPINION

J. HARVEY HUDSON, Justice.

Appellant, Felix Ramirez, Jr., was convicted by a jury of the offense of capital murder. The State did not seek the death penalty, and appellant was sentenced to life imprisonment. In four points of error, appellant contends: (1) the trial court erred in overruling his motion to suppress confessions obtained in violation of his right to counsel; (2) the trial court erred in overruling his motion to suppress confessions that were the product of improper inducement; (3) he was denied the effective assistance of counsel; and (4) he was denied his constitutional right to be present at trial. We affirm.

On the night of June 3, 2000, appellant and Maria Cervantes returned to the latter's home after attending a party. After dismissing the babysitter, Ms. Cervantes put her two-and-a-half year old son, Alberto Mata III, to bed. Sometime during the night, however, the child awoke and began crying. Appellant got out of bed to tend to the child, but his ministrations proved fatal: examination later showed Alberto had fractured ribs and a ruptured heart.

The next morning, appellant left the house without awakening Ms. Cervantes, who only discovered the lifeless body of her son some forty-five minutes after appellant's departure. Paramedics were alerted, but could do nothing. Thereafter, Detective Rymer of the Baytown Police Department learned of appellant's presence in the house during the night and, finding him at his mother's residence, asked him to come to the police station for questioning. Appellant did so voluntarily, at which time Detective Rymer read appellant his statutory rights. Because appellant declined to answer questions without his attorney present, Detective Rymer ceased the questioning and checked appellant for outstanding warrants. Finding that appellant had an open warrant for a traffic offense, Detective Rymer placed him in Baytown jail.

The following morning, June 5, 2000, appellant purportedly informed a jailer that he wished to speak with Detective Rymer. The jailer contacted the detective's partner, who then informed Detective Rymer of appellant's request. Upon arriving at the station, Detective Rymer asked appellant whether he wanted to speak to him. Appellant answered in the affirmative, and Detective Rymer again read appellant his statutory rights. Appellant initialed each warning and signed the document detailing his rights. He did not request an attorney. At that time, in a videotaped interview, appellant stated he had not had any dealings with Alberto.

Detective Rymer then requested that Detective Craft, who was in charge of the investigation, to interview appellant. In a videotaped interview, Detective Craft read appellant his statutory warnings, after which appellant voluntarily waived his rights and gave a written statement. Appellant initialed both the warnings and the statement; the latter document noted that appellant waived his right to have a lawyer present to advise him prior to or during any questioning. Following the autopsy of Alberto, Detective Craft confronted appellant with inconsistencies in this statement, whereupon, after another set of statutory warnings, appellant provided a second statement. In this second statement, appellant admitted that he struck Alberto with a closed fist to the chest when the child would not stop crying. Recognizing that the blow had proven fatal, appellant crumbled some crackers and placed them in Alberto's mouth so it would appear the child had choked to death, before returning to bed.

Appellant filed a pretrial motion to suppress these written confessions, contending they were made after he had invoked his right to counsel and were thus taken in violation of his Sixth Amendment rights. The trial court held a hearing outside the presence of the jury, at which appellant testified he was compelled to sign the confessions only because he felt his chances of obtaining an attorney were slim, and denied ever telling anyone that he did not wish to have an attorney. At the conclusion of the hearing, the trial court found that appellant was not in custody or under arrest for this offense when he made the written statements and that they were freely and voluntarily given. Moreover, the trial court found that appellant freely and voluntarily waived his rights, that he was not threatened in any way, and that he was not made any promises or deprived of any food or drink while at the police station. Accordingly, the trial court denied appellant's motion to suppress.

In his first point of error, appellant contends the trial court erred in overruling his motion to suppress the written confessions in violation of his right to counsel under both the Fifth and Sixth Amendments of the United States Constitution. Specifically, appellant avers he did not request to meet with Detective Rymer while incarcerated. Thus, he contends the State did not carry its burden of showing that he had initiated contact and waived his right to counsel.

Once an accused invokes his right to counsel, interrogation must cease until counsel has been made available, unless the accused himself initiates further communication. Minnick v. Mississippi, 498 U.S. 146, 151-52, 111 S.Ct. 486, 112 L.Ed.2d 489 (1990) (reiterating Edwards v. Arizona, 451 U.S. 477, 101 S.Ct. 1880, 68 L.Ed.2d 378 (1981)); Muniz v. State, 851 S.W.2d 238, 252 (Tex.Crim.App.1993). This rule seeks to assure "`that any statement made in a subsequent interrogation is not the result of coercive pressures.'" Id. (quoting Minnick, 498 U.S. at 149-50, 111 S.Ct. 486). An accused may, however, waive the Fifth Amendment right to counsel even after having already invoked it. Id. (citing Minnick, 498 U.S. at 154-56, 111 S.Ct. 486).

To establish waiver, the State must demonstrate that appellant intentionally relinquished a right of which he was aware. Muniz, 851 S.W.2d at 253. Whether a waiver is shown "must depend, in each case, upon the particular facts and circumstances surrounding the case, including the background, experience, and conduct of the accused." Id. (quoting Johnson v. Zerbst, 304 U.S. 458, 464, 58 S.Ct. 1019, 82 L.Ed. 1461 (1938)).

Here, the record contains conflicting evidence regarding whether appellant initiated further contact with the police. In a suppression hearing, however, the trial court is the sole trier of fact and judge of the credibility of the witnesses and the weight to be given their testimony. State v. Ross, 32 S.W.3d 853, 855 (Tex. Crim.App.2000) (citing State v. Ballard, 987 S.W.2d 889, 891 (Tex.Crim.App.1999)). Accordingly, the judge may believe or disbelieve all or any part of a witness's testimony, even if that testimony is not controverted, "because it is the trial court that observes first hand the demeanor and appearance of a witness, as opposed to an appellate court which can only read an impersonal record." Id. (citations omitted). Thus, where, as here, the evidence is conflicting, we must defer to the fact-finding ability of the trial court.

"Unlike the Fifth Amendment right to counsel, the Sixth Amendment right to counsel does not attach until a prosecution is commenced, that is, `at or after the initiation of adversary judicial proceedings against the defendant,'" whether by way of formal charge, preliminary hearing, indictment, information, or arraignment. Green v. State, 934 S.W.2d 92, 97 (Tex.Crim.App.1996) (quoting United States v. Gouveia, 467 U.S. 180, 187, 104 S.Ct. 2292, 81 L.Ed.2d 146 (1984)); Green v. State, 872 S.W.2d 717, 719 (Tex. Crim.App.1994). The right is specific to the offense. McNeil v. Wisconsin, 501 U.S. 171, 175-76, 111 S.Ct. 2204, 115 L.Ed.2d 158 (1991); Janecka v. State, 937 S.W.2d 456, 466 (Tex.Crim.App.1997). In the instant case, appellant had neither been arrested nor charged with Alberto's murder, and adversarial proceedings had not commenced when he made the statements with which we are here concerned. Accordingly, appellant's Sixth Amendment right to counsel had not attached when he gave the statements, and thus the trial court did not err in their admission. See McFarland v. State, 928 S.W.2d 482, 507 (Tex.Crim.App.1996), overruled on other grounds by, Mosley v. State, 983 S.W.2d 249, 263 (Tex.Crim.App.1998). Appellant's first point of error is overruled.

In his second point of error, appellant contends the trial court erred in overruling his motion to suppress the written confessions, because they were the product of improper inducement. Specifically, appellant complains Detective Craft impliedly promised that if he confessed, he would be treated more favorably. Appellant contends these assurances rendered appellant's statements involuntary.

Before a promise will render a confession inadmissible, it must be shown that the promise induced the confession. Muniz, 851 S.W.2d at 254; Jacobs v. State, 787 S.W.2d 397, 399 (Tex.Crim.App.1990). In order to induce the confession, the promise must be (1) positive, (2) made or sanctioned by someone in authority, and (3) of such an influential nature that a defendant would speak untruthfully in response thereto. Muniz, 851 S.W.2d at 254. Moreover, the statements must not have been "`obtained by the influence of hope or fear, applied by a third person to the prisoner's mind.'" Creager v. State, 952 S.W.2d 852, 856 (Tex.Crim.App.1997) (quoting Cain v. State, 18 Tex. 387, 390 (Tex.1857)). The ultimate question is whether appellant's will was overborne. Id. (citing Armstrong v. State, 718 S.W.2d 686, 693 (Tex.Crim.App.1985)).

Regarding the discussion about leniency, the record shows Detective Craft stated that in his experience "typically juries and...