Resendez v. State, No. 14-05-00098-CR (Tex. App. 5/29/2008)
| Decision Date | 29 May 2008 |
| Docket Number | No. 14-05-00098-CR.,14-05-00098-CR. |
| Parties | ANGEL RESENDEZ, Appellant, v. THE STATE OF TEXAS, Appellee. |
| Court | Texas Court of Appeals |
On Appeal from the 182nd District Court, Harris County, Texas, Trial Court Cause No. 960399.
Appellee's Second Motion for Rehearing Overruled.
Panel consists of Justices ANDERSON, FROST, and SENIOR Justice EDELMAN*. (FROST, J., dissenting)
On August 30, 2007, this court issued a substitute opinion in which it reversed and remanded the case for a new trial. On October 15, 2007, the State filed a second motion for rehearing requesting this court to reconsider its substitute opinion. We overrule the State's second motion for rehearing, but we issue this supplemental opinion to address matters raised by the State.
In its second motion for rehearing, the State argues even assuming appellant was in custody during the second interview, the lack of Miranda warnings did not render appellant's confession inadmissible because Officer McDaniel advised appellant of his rights before he made appellant's first videotaped statement two days earlier. According to the State, it is irrelevant whether appellant was in custody because the warnings appellant received during the first interview were still in effect during the second interview. The State, however, admits it did not bring forth this argument on appeal or in its first motion for rehearing.
Before addressing the merits, we must first determine whether we can consider a new argument raised in a motion for rehearing. The Court of Criminal Appeals has determined if a party raises a new ground for the first time on a motion for rehearing, the decision of whether to consider the new matter is "left to the sound discretion of the appellate court." Rochelle v. State, 791 S.W.2d 121, 124 (Tex. Crim. App. 1990). The Court has held there are times when "as justice requires" or "in the interest of justice" an appellate court may consider a motion for rehearing to decide an issue not presented in the original briefs. Hughes v. State, 878 S.W.2d 142, 151 (Tex. Crim. App. 1990) (). Accordingly, we exercise our discretion and will consider the State's new argument "in the interest of justice."
In appellant's response, he argues the State waived this new argument because it failed to raise this issue during the suppression hearing. We disagree with appellant. When the State prevails at the suppression hearing, the court of appeals is obligated to uphold the trial court's ruling on a motion to suppress if that ruling is supported by the record and is correct under any theory of law applicable to the case. Armendariz v. State, 123 S.W.3d 401, 404 (Tex. Crim. App. 2003); State v. Ross, 32 S.W.3d 853, 855B56 (Tex. Crim. App. 2000). Essentially, when the State wins a motion to suppress and the defendant appeals the decision, the State may bring forth new theories of law applicable to the case which were not raised in the suppression hearing. See Armendariz, 123 S.W.3d at 404B05 (); State v. Mercado, 972 S.W.2d 75, 77 (Tex. Crim. App. 1998) ().
Appellant cites to State v. Mercado and State v. Steelman in support of his argument that issues not argued at the suppression hearing are deemed waived on appeal; however, appellant fails to recognize both Mercado and Steelman stand for the proposition that when the State loses the suppression hearing and appeals the decision, the State may not bring forth new points of error. See State v. Steelman, 93 S.W.3d 102, 105B07 (Tex. Crim. App. 2002); Mercado, 972 S.W.2d at 77B78. In this case, the State won the suppression hearing and the defendant appealed, therefore, Mercado and Steelman do not apply.
Appellant also cites to this court's decision in Barocio v. State as support. In Barocio, the trial court denied the defendant's motion to suppress, the defendant appealed the decision, the State attempted to raise a new argument to support the denial, and this court, in a plurality opinion, held the State's new argument was waived. Barocio v. State, 117 S.W.3d 19, 26 (Tex. App.-Houston [14th Dist.] 2003) (plurality op.), rev'd on other grounds, 158 S.W.3d 498 (Tex. Crim. App. 2005). However, the clear import of Armendariz is that the State, in the wake of a trial court's denial of a motion to suppress, retains the right to supplement its arguments on appeal supporting the trial court's ruling on the motion. See Armendariz, 123 S.W.3d at 404B05. This rule is inapplicable only when the State is not the prevailing party on the motion to suppress. See Steelman, 93 S.W.3d at 105B07; Mercado, 972 S.W.2d at 77B78. Thus, Barocio conflicts with the rule in Armendariz and incorrectly applies the law. Furthermore, Barocio is a one-judge plurality opinion, which has no precedential value, and is not binding authority on this court. See Chavez v. State, 9 S.W.3d 817, 833 (Tex. Crim. App. 2000) (). Accordingly, we find the State did not waive its argument by failing to raise it during the suppression hearing.
The State concedes it did not read appellant his Miranda rights before conducting the second interview; however, it now argues this lack of Miranda warnings did not render appellant's confession inadmissible because Officer McDaniel advised appellant of his Miranda rights before he made appellant's first videotaped statement two days earlier. We will analyze this argument under both constitutional principles and the Texas Code of Criminal Procedure ("the Code").
a. Applicable Law
The safeguards established in Miranda come into play when a person in custody is subjected to either express questioning or its functional equivalent. Rhode Island v. Innis, 446 U.S. 291, 300, 100 S. Ct. 1682, 1689, 64 L. Ed. 2d 297 (1980). The State, however, cites two Texas Court of Criminal Appeals cases for the proposition that when a suspect provides two statements that are separated by the passage of time and Miranda warnings were provided before the first statement, the mere passage of time does not automatically vitiate the prior warnings. See Jones v. State, 119 S.W.3d 766, 773B74 n.13 (Tex. Crim. App. 2003); Ex parte Bagley, 509 S.W.2d 332, 337B38 (Tex. Crim. App. 1974).
In Ex parte Bagley, the arresting officer, a magistrate, and the assistant district attorney warned the defendant. Ex parte Bagley, 509 S.W.2d at 335. Subsequent warnings were given before a polygraph exam and before the complained of statement. Id. During the polygraph examination, the defendant expressed his desire to make a statement, so the assistant district attorney again warned the defendant, and the defendant's statement was reduced to writing. Id. This statement, however, was not the confession introduced into evidence. Id. at 336. Upon completion of the written statement, the defendant returned to his jail cell. Id. Later that evening, the assistant district attorney questioned the defendant again. Id. Before taking a second statement, the assistant district attorney again warned the defendant but in general terms. Id. at 336B37. The two then went over the defendant's previous statement and determined it needed corrections. Id. at 336. This resulting confession was the confession introduced at trial. Id. On appeal, the defendant claimed the confession introduced at trial was void because at the time he made it he had not been warned of his right to have an attorney present during the interrogation. Id. at 334.
Ultimately, the Court decided the warnings given to the defendant immediately preceding his second statement were adequate, but the Court also found the warnings given six to eight hours earlier during his first statement would have satisfied the dictates of Miranda. Id. at 337. As support, the Court cited federal circuit court cases for the proposition that Miranda warnings were not automatically extinguished by the mere passage of time, and in some cases Miranda warnings were still effective for statements given two or three days later. See id. (citing United States v. Hopkins, 433 F.2d 1041 (5th Cir. 1970); United States v. Springer, 460 F.2d 1344 (7th Cir. 1972); Maguire v. United States, 396 F.2d 327 (9th Cir. 1968)).
In Jones v. State, while being questioned by the State on two different occasions, the defendant made two statements regarding the murder of Berthena Bryant. Jones, 119 S.W.3d at 771. The detective read the defendant his Miranda rights before each of these statements. Id. Nine or ten days later, the defendant gave a statement to a Texas Ranger implicating himself in two extraneous murders. Id. The Texas Ranger did not read the defendant his rights until after he made his statement. Id. at 772. On appeal, the defendant argued the Texas Ranger's failure to inform the defendant of his rights before making his statement violated his Fifth Amendment rights protected by Miranda. Id.
In Jones, the Court held the statement was inadmissible because the defendant was not properly warned. Id. at 776. Presiding Judge...
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