Resendez v. State

• Decision Date: 30 August 2007
• Docket Number: No. 14-05-00098-CR.,14-05-00098-CR.
• Citation: 256 S.W.3d 315
• Parties: Angel RESENDEZ, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Appeals

256 S.W.3d 315

Angel RESENDEZ, Appellant, v. The STATE of Texas, Appellee.

No. 14-05-00098-CR.

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

August 30, 2007.

Supplemental Opinion Overruling Rehearing May 29, 2008.

Kenneth E. Goode, Houston, for appellant.

Keisha L. Smith, Houston, for appellee.

Panel consists of Justices ANDERSON, EDELMAN and FROST.

SUBSTITUTE MAJORITY OPINION

JOHN S. ANDERSON, Justice.

We overrule the State's motion for rehearing, withdraw our previous opinion, and issue this substitute opinion in its place.

Appellant, Angel Resendez, pleaded guilty to the murder of Amanda Garza, and the trial court assessed punishment at ninety-nine years' confinement in the Texas Department of Criminal Justice, Institutional Division. Appellant appeals his conviction in one point of error. He asserts the trial court abused its discretion by denying the motion to suppress his unwarned videotaped confession to murder. The issue in this case is whether appellant was in custody during his interrogation on September 2, 2003, thus triggering his right to Miranda¹ warnings. Because we conclude appellant was in custody, we reverse and remand for a new trial.

FACTUAL AND PROCEDURAL BACKGROUND

On August 30, 2003, appellant and a group of friends, including complainant Amanda Garza, drank a considerable amount of alcohol at a nightclub. That night, after the nightclub closed, the group went to a hotel and continued drinking. Appellant called, his friend, Steve Perez, because appellant and Garza needed a ride home.² By the time Perez arrived, Garza was extremely intoxicated and got into the backseat of Perez's car. Perez asked appellant for permission to have sex with Garza, and appellant approved. Perez asked appellant to drive them to appellant's house, and then Perez would take Garza home. Perez then climbed into the backseat and proceeded to have sex with Garza. After several minutes, Garza began screaming and striking Perez, and she told appellant to pull over and let her out, which he did. By this time, appellant was near his home. Garza got out of the car, began to walk away, and shouted obscenities at Perez, threatening to report the assault to the police.

The exact sequence of events following Garza's exit from the vehicle is unclear because appellant gave two different statements to police regarding the events that evening. In the first statement, appellant claimed he insisted on walking Garza to his home, but Perez did not want her to tell anyone what happened. Perez followed appellant and Garza in the car for a few feet, got out of the car, and shot Garza once in the head. Perez threatened to shoot appellant and told appellant to get in the car. Perez then shot Garza three more times. Appellant claimed to have no prior knowledge of a gun in the car. In the second statement, however, appellant claimed he did know about the gun because Perez told appellant to remove the gun from the glove compartment and place it under the seat, so that if they were stopped by police on the way home, the police would not see the gun when they retrieved their proof of insurance. In the second statement, appellant described his actions after Garza got out of the car: he got angry; "freaked;" grabbed the gun from under the seat; and shot Garza once in the head. Perez then took the gun from appellant and shot Garza three more times. Appellant later claimed he changed his story the second time because he was being threatened by Perez and Perez's friends and thought that if he took partial responsibility for what happened, his family would be protected.

Appellant gave his first videotaped statement on August 31, 2003. Prior to this first videotaped statement, police gave appellant Miranda warnings. After the first statement, appellant agreed to stage a recorded phone conversation with Perez.³ Police then became suspicious of appellant's involvement because Perez implicated appellant in the shooting. On September 2, appellant agreed to take a polygraph test, which he took and failed. At this point, he was questioned and videotaped a second time, and he eventually confessed to shooting Garza with the first of the four shots fired. During the second videotaped statement, appellant was not given any Miranda warnings. Appellant was arrested sometime later that day for Garza's murder.

Appellant twice moved to suppress his second unwarned statement, once on September 19, 2003, and again on October 29, 2004. After filing the second motion to suppress but before his trial, appellant testified against Perez at Perez's trial on November 3, 2004. Appellant testified about what he said to police in his two statements. Appellant testified that the reason he changed his story and admitted shooting Garza was because he felt threatened by Perez, but his first statement was factually correct.

At the suppression hearing on November 8, appellant argued his second statement should be suppressed because it was not given voluntarily and police did not give him Miranda warnings preceding a custodial interrogation. The State argued in response that Miranda warnings were not required because the interrogation was not custodial, and the statement was given voluntarily. Perez's and appellant's trials both took place in the same trial court and were presided over by the same judge. At appellant's suppression hearing, the trial court took judicial notice of appellant's testimony in Perez's trial, specifically that he did not hear appellant testify the statement was not given voluntarily. The trial court denied appellant's motion to suppress. Appellant then pleaded guilty and agreed to a pre-sentence investigation (PSI). After reviewing the results of the PSI and victim impact testimony, the trial court assessed punishment at ninety-nine years' confinement.

DISCUSSION

I. Waiver

As a preliminary matter, the State contends appellant waived his right to appeal the trial court's denial of the motion to suppress appellant's second videotaped statement when appellant pleaded guilty. We disagree. Both bargaining and non-bargaining defendants can appeal rulings on written, pre-trial motions and jurisdictional issues. Monreal v. State, 99 S.W.3d 615, 620 (Tex.Crim.App. 2003); see TEX.R.APP. P. 25.2. A valid waiver of appeal, whether negotiated or non-negotiated, will prevent a defendant from appealing without the consent of the trial court. Monreal, 99 S.W.3d at 622. In determining whether defendants should be bound to their waivers of appeal, a court first must determine whether the waiver is valid, which requires a finding that the waiver was knowingly, voluntarily, and intelligently made. Id. at 621. However, a waiver of a right to appeal is invalid, and therefore not made knowingly, voluntarily, and intelligently, if it is entered before the defendant is aware of the consequence of his plea. See Tufele v. State, 130 S.W.3d 267, 270 (Tex.App.-Houston [14th Dist.] 2004, no pet.).

Here, appellant twice filed a written pre-trial motion to suppress his second videotaped statement. After the trial court denied appellant's motion, appellant pleaded guilty. When making his plea, appellant signed a plea form which purportedly waived his right to appeal. The context of that form implies there was an agreement as to punishment, which there clearly was not; rather, appellant only agreed to have punishment evidence presented to the trial court via a PSI report. Further, the trial court certified appellant's right to appeal and noted this is not a plea bargain case. See Alzarka v. State, 90 S.W.3d 321, 324 (Tex.Crim.App.2002) (holding a trial court that certifies a defendant's right to appeal directly contradicts and rebuts any presumption raised by the terms of the boiler-plate language in a plea form signed by the defendant and reflects the defendant did not waive appeal). Appellant did not knowingly, voluntarily, and intelligently waive his right to appeal because punishment had not yet been assessed. Thus, appellant has not waived his right to appeal the point of error he raises in this appeal.

II. Miranda Warnings Required During Custodial Interrogation

In appellant's argument on the merits, he contends the trial court erred in denying his motion to suppress his second videotaped statement. Appellant makes multiple arguments in support of his contention.

A. Standard of Review

When reviewing a trial court's suppression ruling, we give almost total deference to the trial court's determination of historical facts that the record supports. Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim.App.1997). We afford the same degree of deference to a trial court's ruling on mixed questions of law and fact when the resolution of the ultimate question turns on an evaluation of credibility and demeanor of witnesses. Id. We review de novo mixed questions of law and fact when the resolution of the issue does not turn on an evaluation of credibility and demeanor. Id. During a suppression hearing, the trial court is the sole judge of the credibility of witnesses and the weight to be given their testimony. Wyatt v. State, 23 S.W.3d 18, 23 (Tex.Crim.App.2000). We must sustain the trial court's ruling if it is reasonably supported by the record and is correct on any theory of law applicable to the case. Villarreal v. State, 935 S.W.2d 134, 138 (Tex.Crim.App.1996).

We will not disturb the trial court's findings if they are supported by the record. Id. If the trial court does not make explicit findings of fact, we will assume the trial court made implicit findings of fact that support its ruling as long as those findings are supported by the record. Montanez v. State, 195 S.W.3d 101, 106 (Tex.Crim.App.2006).

During the suppression hearing, appellant's counsel argued to the trial court appellant may have voluntarily gone to the police station to talk to police, but at some point while there, his interrogation turned custodial and was no longer voluntary, requiring police...