Romero v. State

• Decision Date: 21 November 1990
• Docket Number: No. 196-89,196-89
• Parties: Dolores ROMERO, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 539

800 S.W.2d 539

Dolores ROMERO, Appellant, v. The STATE of Texas, Appellee.

No. 196-89.

Court of Criminal Appeals of Texas,

En Banc.

Nov. 21, 1990.

Robert V. Garcia, Jr., Odessa, for appellant.

Al W. Schorre, Jr., Dist. Atty., Randall L. Fluke, Asst. Dist. Atty., Midland, and Robert Huttash, State's Atty., Austin, for the State.

Before the court en banc.

OPINION ON APPELLANT'S PETITION FOR DISCRETIONARY REVIEW

MILLER, Judge.

This petition presents us with an interlocutory appeal. Appellant was indicted for the offense of murder. V.T.C.A. Penal Code Sec. 19.02(a)(1). By pre-trial motion to suppress, appellant challenged the admissibility of certain oral statements he made to police officers on July 20, 1987, concerning the stabbing death of Jose Lomeli. After a hearing in which both appellant and the State presented evidence, the trial judge entered an order granting appellant's motion. The State appealed that ruling. See Art. 44.01(a)(5), V.A.C.C.P. The court of appeals reversed the ruling of the trial judge and held appellant's oral statements were admissible under Art. 38.22, Sec. 3(c), V.A.C.C.P. State v. Romero, 763 S.W.2d 536 (Tex.App.--El Paso 1988). Appellant petitioned this Court for review, raising two grounds, to wit: the court of appeals erred in reversing on the ground that the statements were admissible under Art. 38.22, Sec. 3(c); and the court of appeals erred in reversing on the basis of Art. 38.22, Sec. 3(c) because that ground was never presented to the trial court. We granted the petition on both grounds, and will reverse the judgment of the court of appeals.

A hearing on appellant's motion to suppress began on January 7, 1988, and it was concluded on January 19, 1988. Appellant contended in his motion that his oral statements to police should be suppressed because they were not obtained in compliance with Art. 38.22 since the statements were not recorded. ¹

At the suppression hearing, conflicting and confusing evidence on the sequence of events leading to appellant's statements was presented. Officer Johnson testified for the State that he investigated the stabbing death of Jose Lomeli. Two hispanic males who had taken Lomeli to the hospital told Johnson that "landman" stabbed the deceased and that "landman" was a person named Dolores Romero. ² Shortly thereafter at the scene of the alleged murder, Johnson approached appellant's home with other uniformed police officers and a justice of the peace, but he stated he had no intention of arresting appellant at that time. After appellant answered the officer's knock on his door, Johnson informed appellant that two men identified him as the one who stabbed the deceased. According to Johnson, appellant said "I stabbed him", and then when asked where the knife was, appellant produced it from his pocket saying "Here it is" and orally admitted in response to a further question that it was the knife with which he stabbed the decedent. ³ Appellant was advised of his rights by one of the officers, and Johnson thereafter arrested him. Justice of the Peace Jobe testified later for the State and gave substantially similar testimony. Both State's witnesses expressed a belief that appellant understood English and was able to converse with them to the degree that they believed he understood their conversations.

Appellant testified at the hearing through a Spanish interpreter. He stated the officers came to his home at 1:30 a.m. and told him that he had been accused of stabbing Jose Lomeli and that he had "to go downtown" with them. Appellant felt that he was under arrest at that time. He then turned over the knife to the officers because he "was scared that there were four of them, and if [he] was to oppose them [he] would be resisting arrest." Appellant denied knowing what it meant to waive your constitutional rights or that he ever admitted at the scene that he killed the deceased. Appellant did not identify from his testimony the knife as the one he used to stab the deceased and, in fact, told the police "I didn't do it" when they asked him about the killing. Appellant denied having anything but a cursory knowledge of the English language and claimed to have understood little of what the police were saying to him.

Subsequently, according to the State's witnesses, appellant had a one hour interview at the police station with Officer Robinson, the contents of which are not in the record as officer Robinson did not testify at the hearing. ⁴ At the conclusion of the hearing, the trial judge deferred his ruling on appellant's motion.

The State filed an answer to appellant's motion on April 25, 1988, and asserted therein that appellant's oral statements were not the result of custodial interrogation, that his oral statements contained assertions of fact or circumstances found to be true and which conduced to establish his guilt, and the statements were not obtained in violation of Art. 38.22. The State also requested written findings of fact and conclusions of law be entered by the trial court. On May 16, 1988, the trial judge signed an order suppressing appellant's oral statements made on July 20, 1987, after he identified himself, but the trial judge did not file written findings and conclusions with this order. In the order, the trial judge concluded appellant's oral statements to peace officers "were the result of custodial interrogation and not recorded or otherwise admissible under Art. 38.22". The State gave notice of appeal.

We begin by addressing appellant's second ground for review wherein he complains section 3(c) of Art. 38.22 was never presented to the trial court, and thus the court of appeals erred in reversing on that ground. We first acknowledge that both parties agreed at the hearing that the pivotal issue raised by appellant was whether he was in custody at the time he gave the allegedly inculpatory oral statements, and, at the conclusion of the hearing, the prosecutor reaffirmed that the main issue confronting the trial judge was the time of appellant's arrest. Appellant's motion to suppress argued his statements were inadmissible pursuant to Art. 38.22, of which section 3 applies to oral confessions. Subsection (a) of section 3 addresses the requisites for admissibility of an oral confession, while subsection (c) is an exception to the rule of subsection (a). It defies logic to say that subsection (c) is not raised by asserting "Art. 38.22" without more since subsection (a) must be considered when determining the admissibility of an oral confession, and subsection (c) is pertinent to the admissibility determination when raised by the facts. Also, the language of the State's answer to appellant's suppression motion raised Art. 38.22, Sec. 3(c) as a ground for denying appellant's motion to suppress. ⁵ And finally, the trial judge apparently considered this section before ruling on the motion since his order states:

Prior to the entry of this Order came on to be considered Defendant's Motion to Suppress Statements, and the State's Answer to Defendant's Motion to Suppress heretofore filed in this cause.

The Court, having considered the evidence and argument of counsel finds that the oral statements made by the Defendant DOLORES ROMERO on July 20, 1987 at 1907 Carol Drive # 5, Midland, Texas, and thereafter to Officer B.G. Johnson and other peace officers, were the result of custodial interrogation and not recorded or otherwise admissible under Art. 38.22, C.C.P., and therefore said Motion should be granted. (emphasis added)

The court of appeals reasoned Section 3(c) was applicable because appellant raised the issue of Section 3, by specifically complaining that the oral confession was not recorded, and the controversy automatically entailed consideration of subsections (a) and (c) under Section 3; that the trial court did not foreclose the issue of Section 3(c); and that the State presented the issue for the court's consideration via its answer to appellant's motion.

We agree with the State's contention that the record demonstrates the issue of applicability of Art. 38.22, Sec. 3(c) was before the trial court. The trial judge's ruling implicitly rejected admissibility of appellant's oral statements under Sec. 3(c). We hold the court of appeals did not err in finding Art. 38.22, Sec. 3(c) was raised before the trial court. Appellant's second ground for review is overruled.

As to the issue raised in appellant's first ground for review, the court of appeals found the custody and custodial interrogation issues and findings of the trial judge were irrelevant to the disposition of the State's appeal because the appellate court found the oral statements were admissible as a matter of law under Art. 38.22, Sec. 3(c). Romero, 763 S.W.2d at 538. As to the merits of the Section 3(c) exception, the court of appeals held the production of the knife used to commit the offense rendered admissible appellant's statements at his home and later at the police station. Id.

Appellant argues in his first ground for review that the court of appeals erred in reversing the trial court on Sec. 3(c) grounds because it is clear from the record "the trial court did not abuse its' (sic) discretion in finding the State failed to show Sec. 3(c) provided a basis for admitting Appellant's alleged oral statements, because there is sufficient evidence in the record to support the ruling." Appellant complains of the appellate court's finding "as a matter of law, on undisputed facts" that his oral statements were admissible under Art. 38.22, Sec. 3(c). Appellant contends that the facts were contested. Implicit in appellant's argument is that the court of appeals engaged in an improper review of the facts and therefore did not limit its appellate review of the trial court's determinations, as to those facts and the accompanying application of law, to an abuse of discretion standard.

The question of the admissibility of an oral confession under Art....