BRAULIO ALVARADO GUTIERREZ v. THE STATE OF TEXAS

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Court of Appeals of Texas, Houston (1st Dist.).

BRAULIO ALVARADO-GUTIERREZ, Appellant v. THE STATE OF TEXAS, Appellee

NO. 01-16-00756-CR

Decided: October 05, 2017

Panel consists of Chief Justice Radack and Justices Keyes and Bland.

MEMORANDUM OPINION

A jury found appellant, Braulio Alvarado-Gutierrez, guilty of two offenses of aggravated sexual assault of a child 1 and assessed his punishment at forty years' confinement for each offense, to be served concurrently. In two issues, appellant contends that the trial court erred in admitting his recorded statement because he did not knowingly, intelligently, and voluntarily waive his Miranda 2 rights and he was denied due process.3

We affirm.

Background

The complainant, J.G., testified that, on September 20, 2014, when she was thirteen years old, appellant, who was her mother's boyfriend, instructed her to go into her mother's bedroom, and he followed behind her, pushing her with his hand. Once in the bedroom, appellant picked up J.G. and put her on the bed. Appellant then removed her shorts and panties, got on top of her, kissed her on the lips, then touched her vagina and put his penis in her vagina. Moments later, J.G. heard her mother, M.G., screaming and breaking a bedroom window. Appellant got up and closed his pants. J.G. pulled on her clothes and ran to the door to let her mother in.

M.G. testified that when she arrived home from work at 1:00 p.m. on September 20, 2014, she found her front door locked with an inside chain. She walked around the house to go in through a back door. When she glanced through her bedroom window, however, she saw appellant on her bed, on top of her daughter. M.G. struck the window with her forearms, breaking the window and cutting her arms, and screamed, “What the hell are you doing?” Appellant got up and zipped his pants. M.G. ran to the front door, where she met J.G., who was holding her infant sister and running from the house. M.G. then called the police.

Hempstead Police Department (“HPD”) Sergeant L. James testified that, when he arrived, he saw M.G. in the front yard holding her arm and bleeding. She was also yelling, in English, at appellant. James interviewed M.G. and J.G. and concluded that J. G. had been sexually assaulted by appellant. He also noted that J.G.'s pants were unzipped.

HPD Corporal S. Angulo testified that, when he arrived, he saw M.G. in the front yard holding her right arm with a bloody rag and heard her yelling at appellant, in English, “How could you do this to me?” Based on his interviews of J.G. and M.G., Angulo arrested appellant for sexual assault. Angulo testified that he is fluent in Spanish and offered to speak to appellant in Spanish, however, appellant declined. Angulo and appellant communicated with each other in English, and nothing in appellant's behavior indicated that appellant did not understand him.

HPD Officer L. Prudente testified that, on September 20, 2014, she interviewed appellant at the jail. Because the video-recording system at the jail was not operational, she made an audio recording of the interview. She began by reading appellant the Miranda rights and warnings. Specifically, she told appellant that he could “stop the interview at anytime,” that he could have an attorney appointed to represent him, and that anything he said would be used against him in court. Prudente determined that appellant understood the rights and warnings as she read them because he responded in the affirmative, and his responses were logical and coherent. When appellant asked her to explain one of the warnings, she did so.

Officer Prudente testified that, during the course of the interview, nothing indicated that appellant was having cognitive issues or was under the influence of drugs or alcohol. She did not have any issues with understanding appellant, and he did not have any apparent difficulties in understanding her. She noted that appellant spoke in English, did not indicate that he was not proficient in the English language, and did not request a Spanish interpreter. Prudente noted that had appellant requested an interpreter, she would have provided one. Appellant seemed eager to talk with her and interrupted her several times as she read the rights and warnings. Prudente further noted that, during the interview, which lasted under two hours, she offered appellant something to drink and a chance to use a restroom.

Officer Prudente further testified that, while interviewing a suspect, she sometimes employs specialized interrogation tactics that are commonly accepted in the law-enforcement community. One such technique involves presenting hypotheticals, sometimes false ones, to a defendant about her evidence. In this case, although she did not, at the time of the interview, possess incriminating DNA evidence against appellant, she told him that she did. After she suggested that his DNA had been found in J.G.'s sexual assault kit, appellant attempted to explain the evidence by asserting that he had been wearing a pair of boxer shorts, had taken them off in the bathroom, and J.G.'s boyfriend had put them on and assaulted J.G. After Prudente expressed doubt as to the veracity of appellant's claim, appellant admitted that he had, indeed, touched J.G.'s genitals with his fingers. He asserted that she “had been provoking him for some time” and flirting with him. He claimed that he had gone into the bathroom to take a shower and, when he came out, J.G. removed her clothing and invited him onto the bed. He then admitted that he had penetrated J.G.'s vagina with his penis. Appellant's recorded statement was admitted into evidence and played for the jury.

Nikki Johnson, a forensic nurse at Baylor Scott & White Hospital, testified that she performed a sexual-assault examination of J.G., who disclosed that appellant had kissed her mouth and penetrated her vagina with his penis. Johnson testified about an injury to J.G.'s genitals that she opined was consistent with penetration.

Tanya Dean, a forensic DNA specialist at the Texas Department of Public Safety Regional Crime Laboratory, testified that she recovered a male DNA profile from samples taken from the inside and outside of J.G.'s panties and from a tissue that J.G. had used to wipe herself immediately after the assault. Appellant could not be excluded as a contributor to the DNA found on any of these items or on J.G.'s lip. Dean testified that her findings were consistent with appellant having kissed J.G. and penetrated her vagina.

Appellant, through an interpreter, testified that on September 20, 2014, he came home from work and caught J.G. outside with her boyfriend. He called M.G., who said that she would be home in twenty minutes, and then went to the restroom. When he came out, he did not fully fasten his belt and buckle. While he was yelling at J.G. to come and get her little sister, he heard M.G. breaking a bedroom window. Appellant asserted that J.G. and M.G. fabricated their allegations and that M.G. is “very jealous,” has a bad temper, and simply imagined that he was assaulting J.G.

Appellant further testified that he moved to Hempstead when he was fourteen, has lived there for 20 years, has a high school diploma, and speaks “mostly” English. He testified, however, that he was not able to understand everything that Officer Prudente had asked him during his interview, and he was unable to fully explain himself in English. He then testified, seemingly inconsistently, as follows:

Q. Do you recall Investigator Prudente reading to you your—or telling you your legal rights?

A. Yes.

Q. And do you remember when she told you that you had the right to remain silent?

A. Yes.

Q. And you understood that that was a right of yours, correct?

A. That is obvious. It is understood and—anyway.

Q. I understand. But you knew that you had a right to remain silent, correct?

A. Yes.

Q. And Investigator Prudente said the things that you say could be used against you in court. You understood that right, didn't you?

A. A little.

Q. You understood as well that if you didn't want to talk anymore, all you had to do was just stop, correct?

A. Yes.

Q. Okay. So at this point you knew you had a right to remain silent, you knew anything you said was going to be used against you in court and you never terminated the interview because you continued to speak. True?

A. I was just playing along [with] her game.

Q. Did Investigator Prudente tell you that you had a right to an attorney?

A. Yes.

Q. And yet you continued to speak after being told of that right, didn't you?

A. Yes.

Q. At no time during your conversation with Investigator Prudente did you say to her, “I need a Spanish translator.” You never said that, did you?

A. No.

Q. And at no time during your conversation with Investigator Prudente did you say, “Wait, I want to stop. I want to talk to a lawyer.” You didn't do that either, did you?

A. No.

Q. And the words that came out of your mouth, whether true or not, were your choice, were they not?

A. Yes.

Q. So you spoke voluntarily?

A. Yes.

Appellant added, “In my mind I'm thinking that I'm going to try to play [Officer Prudente's] game and see how far she goes” by “[t]elling her that I had touched [J.G.], that I had put my thing there.”

Voluntariness of Statement

In his first and second issues, appellant contends that the trial court erred in admitting his recorded statement. Specifically, appellant argues that his statement was not knowingly, intelligently, and voluntarily made because Officer Prudente did not ensure that he understood the Miranda rights and warnings, and she deceived him into making his statement. Appellant further argues that he was denied due process because Prudente took “advantage of [his] not being sufficiently fluent in the English language to understand” the Miranda rights and warnings.

We review a trial court's evidentiary rulings under an abuse of discretion standard. 4 Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim. App. 1997); Pierre v. State, 2 S.W.3d 439, 442 (Tex. App.—Houston [1st Dist.] 1999, pet. ref'd). A trial court abuses its discretion if it acts arbitrarily or unreasonably, without reference to guiding rules or principles. Montgomery v. State, 810 S.W.2d 372, 380 (Tex. Crim. App. 1990). If the trial court's ruling lies within the zone of reasonable disagreement, we will not disturb the ruling. Prible v. State, 175 S.W.3d 724, 731 (Tex. Crim. App. 2005). We will uphold a trial court's evidentiary ruling if it is correct on any theory of law applicable to the ruling. De La Paz v. State, 279 S.W.3d 336, 344 (Tex. Crim. App. 2009).

A defendant may claim that his statement was not freely and voluntarily made and thus may not be used as evidence against him under several different theories: (1) the Due Process Clause 5 (2) Miranda v. Arizona,6 as expanded in Texas Code of Criminal Procedure, Article 38.22, §§ 2, 3 7 ; or (3) Article 38.22, § 6 8 —general voluntariness. Oursbourn v. State, 259 S.W.3d 159, 169 (Tex. Crim. App. 2008). “A statement that is involuntary as a matter of constitutional law is also involuntary under Article 38.22, but the converse need not be true.” Id. (internal citations omitted).

“A confession may be involuntary under the Due Process Clause only when there is police overreaching.” Id. Absent police misconduct causally related to the confession, “there is simply no basis for concluding that any state actor has deprived a criminal defendant of due process of law.” Id. at 170. The Due Process Clause does not protect people from themselves. Id. Similarly, Miranda “protects defendants against government coercion leading them to surrender rights protected by the Fifth Amendment; it goes no further than that.” Id. Due-process and Miranda claims involve an “objective assessment of police behavior.” Id. at 171. A defendant's will may be overborne if the totality of the circumstances show that there was official, coercive conduct of such a nature that a statement from the defendant was unlikely to have been the product of an essentially free and unconstrained choice. See Creager v. State, 952 S.W.2d 852, 856 (Tex. Crim. App. 1997); see also Alvarado v. State, 912 S.W.2d 199, 211 (Tex. Crim. App. 1995). The Constitution leaves voluntariness claims based on a defendant's state of mind for resolution by state laws governing the admission of evidence. Oursbourn, 259 S.W.3d at 171.

In Texas, Code of Criminal Procedure article 38.21 provides that “[a] statement of an accused may be used in evidence against him if it appears that the same was freely and voluntarily made without compulsion or persuasion ․” TEX. CODE CRIM. PROC. ANN. art. 38.21 (West 2005); Oursbourn, 259 S.W.3d at 169; Howard v. State, 482 S.W.3d 249, 255 (Tex. App.—Houston [1st Dist.] 2015, pet. ref'd). Article 38.22 “establishes procedural safeguards for securing the privilege against self-incrimination.” Joseph v. State, 309 S.W.3d 20, 23 (Tex. Crim. App. 2010); see TEX. CODE CRIM. PROC. ANN. art. 38.22 (West Supp. 2016).

Article 38.22 provides that an oral statement of an accused made as a result of custodial interrogation is admissible against the accused in a criminal proceeding if certain procedural safeguards are met, including: (1) that an electronic recording is made; (2) before the statement, but during the recording, the accused is given the warnings required by Texas Code of Criminal Procedure article 38.22, section 2(a); and (3) the accused knowingly, intelligently, and voluntarily waives the rights conveyed by the warning. TEX. CODE CRIM. PROC. ANN. art. 38.22 § 3(a).

Article 38.22, section 2(a), requires that the State inform the accused that:

(1) he has the right to remain silent and not make any statement at all and that any statement he makes may be used against him at his trial;

(2) any statement he makes may be used as evidence against him in court;

(3) he has the right to have a lawyer present to advise him prior to and during any questioning;

(4) if he is unable to employ a lawyer, he has the right to have a lawyer appointed to advise him prior to and during any questioning; and

(5) he has the right to terminate the interview at any time[.]

TEX. CODE CRIM. PROC. ANN. art. 38.22, § 2(a); Joseph, 309 S.W.3d at 24; Howard, 482 S.W.3d at 255.

The State bears the burden to demonstrate by a preponderance of the evidence that the defendant knowingly, intelligently, and voluntarily waived his Miranda and his statutory rights. Howard, 482 S.W.3d at 255; see also TEX. CODE CRIM. PROC. ANN. art. 38.22. This burden does not arise, however, unless the defendant first offers evidence raising a voluntariness question. State v. Terrazas, 4 S.W.3d 720, 725 (Tex. Crim. App. 1999); Juarez v. State, 409 S.W.3d 156, 164 (Tex. App.—Houston [1st Dist.] 2013, pet. ref'd).

To determine voluntariness, the court must “examine the totality of the circumstances surrounding the acquisition of the statement.” Creager, 952 S.W.2d at 856; Howard, 482 S.W.3d at 256 (noting that “all the circumstances surrounding the interrogation” include defendant's “experience, background, and conduct” (internal quotations omitted)). A waiver must be “voluntary in the sense that it was the product of a free and deliberate choice rather than intimidation, coercion, or deception” and the waiver must be made “with a full awareness both of the nature of the right being abandoned and the consequences of the decision to abandon it.” Leza v. State, 351 S.W.3d 344, 349–50 (Tex. Crim. App. 2011).

Next, “[i]t will suffice to render a waiver knowing and intelligent ․ that the accused has been made aware, and fully comprehends, that he has the right to remain silent in the face of police interrogation and to discontinue the dialogue at any time, and that the consequence of his waiver is that his words may be used against him later in a court of law.” Id. (“Once it is determined that a suspect[ ] ․ at all times knew he could stand mute ․ , and that he was aware of the State's intention to use his statements to secure a conviction, the analysis is complete and the waiver is valid as a matter of law.”).

Furthermore, a defendant's waiver of rights may be implied upon a showing that the defendant (1) was given the proper warnings; (2) understood the warnings and their consequences; and (3) made an uncoerced statement. Howard, 482 S.W.3d at 256. “Simply making a statement is often the kind of conduct viewed as indicative of one's intention to waive [his] rights.” Id. (quoting Berghuis v. Thompkins, 560 U.S. 370, 385, 130 S. Ct. 2250, 2262 (2010)). “[A] suspect who has received and understood the Miranda warnings, and has not invoked his Miranda rights, waives the right to remain silent by making an uncoerced statement to the police.” Id. (quoting Berghuis, 560 U.S. at 388–89, 130 S. Ct. at 2264).

Here, as a preliminary matter, the State asserts that appellant did not preserve his issues for review. To preserve error for appellate review, a timely and reasonably specific objection, followed by an adverse ruling, is required. TEX. R. APP. P. 33.1(a). Except for complaints involving fundamental constitutional systemic requirements, “all other complaints based on a violation of both constitutional and statutory rights are waived by [a] failure to comply with [Texas] Rule [of Appellate Procedure] 33.1.” Mendez v. State, 138 S.W.3d 334, 338 (Tex. Crim. App. 2004) (internal quotations omitted); see also TEX. R. APP. P. 33.1(a); Unkart v. State, 400 S.W.3d 94, 98 (Tex. Crim. App. 2013) (“Most appellate complaints must be preserved by a timely request for relief at the trial level.”). A failure to specifically object, either in a motion to suppress or in an objection raised at trial, to an alleged violation of Miranda rights waives the issue on appeal. See Allridge v. State, 762 S.W.2d 146, 157 (Tex. Crim. App. 1988) (“The requirement of a trial objection applies with equal force to alleged Miranda ․ violations.”); Smith v. State, 721 S.W.2d 844, 855 (Tex. Crim. App. 1986) (holding complete failure to give Miranda warnings prior to questioning does not constitute fundamental error and complaint not preserved for review without trial objection); Mbugua v. State, 312 S.W.3d 657, 667 (Tex. App.—Houston [1st Dist.] 2009, pet. ref'd) (“Because appellant did not object to the admission of his statement based on the failure of the police to provide required warnings at an earlier time, either at the suppression hearing or at the time of trial, and did not secure a ruling on such a complaint,” error was not preserved); Mason v. State, 116 S.W.3d 248, 264–65 (Tex. App.—Houston [14th Dist.] 2003, pet. ref'd) (holding that appellant waived complaint on appeal that his statement was involuntary because his will was overborne by police pressure by not raising issue in motion to suppress).

The record shows that appellant, during voir dire, told the trial court that he did not intend to file a motion to suppress his recorded statement. Subsequently, during a bench conference, appellant objected to the specific portion of his recorded interview in which the taking of a polygraph was discussed. The parties agreed to redact that portion of his statement. The trial court then admitted into evidence appellant's statement, as redacted, without further objection by appellant.

Thus, the record does not reflect that appellant filed a motion to suppress his recorded statement, objected at trial to its admission into evidence, or in any way challenged the voluntariness of his recorded statement in the trial court.9 To the contrary, appellant affirmatively stated at trial that he had no objection to the admission of his recorded statement, as redacted. When a defendant affirmatively states that he has “no objection” at trial to the admission of the complained-of evidence, he waives any error in the admission of the evidence. Moody v. State, 827 S.W.2d 875, 889 (Tex. Crim. App. 1992); see, e.g., Castenano v. State, No. 01-05-01042-CR, 2007 WL 491603, at *6 (Tex. App.—Houston [1st Dist.] Feb. 15, 2007, pet. ref'd) (mem. op.) (holding any error in admission of recorded statement was not preserved because defendant affirmatively stated that he had “no objection”). Appellant raises his complaints for the first time on appeal. We hold that appellant did not preserve his issues for review. See TEX. R. APP. P. 33.1(a); Smith, 721 S.W.2d at 855 (Miranda complaint not preserved without trial objection); Mbugua, 312 S.W.3d at 667; see also Wolfe v. State, 917 S.W.2d 270, 282 (Tex. Crim. App. 1996) (requiring that defendant raise “due process involuntariness” claims in trial court); see, e.g., Vaughn v. State, No. 05-97-01210-CR, 1999 WL 605691, at *2 (Tex. App.—Dallas Aug. 12, 1999, pet. ref'd) (not designated for publication) (holding appellant's complaint that he was not advised of his Miranda rights before giving statement admitting that he had sexually assaulted complainant was not preserved because he did not file motion to suppress his statement or object at trial to its admission into evidence).

Appellant, for the first time in his reply brief on appeal, argues that he was not required to preserve his issues because they constitute fundamental error, in that he was denied his right to counsel. Again, as discussed above, appellant conceded at trial that Officer Prudente, during the interview, informed him of his right to counsel and he declined. Thus, the record does not support appellant's argument.

Even were we to conclude that appellant preserved his issues for review, they are without merit. Appellant testified at trial that Prudente read him his legal rights, which included a right to remain silent. When asked whether he understood his right to remain silent, appellant responded in the affirmative and stated, “That is obvious. It is understood. ․” Appellant also testified that he understood that if he did not want to talk, he could simply stop, and that he had a right to an attorney. He conceded that he did not ask for an attorney or an interpreter. He testified that although he knew that he had a right to remain silent and knew that anything that he said would be used against him in court, he voluntarily continued to speak because he was “just playing along” with Prudente's “game,” as follows: “In my mind I'm thinking that I'm going to try to play her game and see how far she goes” by “[t]elling her that I had touched [J.G.], that I had put my thing there.”

Further, Officer Prudente testified that she read appellant the Miranda rights and warnings, asked if he understood them, and determined that he did understand them because he responded in the affirmative, and his responses were logical and coherent. The audiotape supports her testimony. Again, it “suffice [s] to render a waiver knowing and intelligent ․ that the accused has been made aware, and fully comprehends, that he has the right to remain silent in the face of police interrogation and to discontinue the dialogue at any time, and that the consequence of his waiver is that his words may be used against him later in a court of law.” See Leza, 351 S.W.3d at 349–50; Howard, 482 S.W.3d at 256 (“[A] suspect who has received and understood the Miranda warnings, and has not invoked his Miranda rights, waives the right to remain silent by making an uncoerced statement to the police.” (quoting Berghuis, 560 U.S. at 388–89, 130 S. Ct. at 2264)).

The audiotape also demonstrates that Officer Prudente did not, as appellant asserts, inform him of his rights “midstream.” Rather, as soon as she entered the interview room, Prudente began informing appellant of the Miranda rights and warnings. Although appellant attempted several times to interrupt her with his story, Prudente continued to redirect him to focus on the rights and warnings.

With respect to the voluntariness of appellant's statement, appellant points only to Officer Prudente's statement during the interview that she had DNA evidence linking him to the offense. See Oursbourn, 259 S.W.3d at 171 (Miranda claims involve an “objective assessment of police behavior”). A defendant's will may be overborne if the totality of the circumstances shows that there was official, coercive conduct of such a nature that a statement from the defendant was unlikely to have been the product of an essentially free and unconstrained choice. Creager, 952 S.W.2d at 856. Although Prudente testified that she in fact told appellant that she had DNA evidence connecting him with the offense before she actually had obtained such evidence, a police officer's misrepresentation relating to an accused's connection to an offense “can be the least likely to render a statement involuntary.” Green v. State, 934 S.W.2d 92, 100 (Tex. Crim. App. 1996). “Inflating evidence of [a defendant's] guilt interfere[s] little, if at all, with his ‘free and deliberate’ choice of whether to confess” because it does not “lead him to consider anything beyond his own beliefs regarding his actual guilt or innocence, his moral sense of right and wrong, and his judgment regarding the likelihood that the police had garnered enough valid evidence linking him to the crime.” Id. (internal quotations omitted).

With respect to appellant's claim that he was denied due process because Officer Prudente “intentionally refused to provide” him with a Spanish language interpreter or allow him to read the Miranda warnings in in Spanish, appellant does not direct us to any place in the record supporting his claim. Moreover, as appellant acknowledges in his brief, “[a]n interpreter is not required if the defendant demonstrates an ability to speak and understand English.” See Linton v. State, 275 S.W.3d 493, 506 (Tex. Crim. App. 2009) (holding appellant not denied due process when direct exchanges with trial judge during hearing on motion to suppress reflected appellant's ability to communicate effectively).

We overrule appellant's first and second issues.

Conclusion

We affirm the trial court's judgment.

FOOTNOTES

1.   See TEX. PENAL CODE ANN. § 22.021 (West Supp. 2016).

2.   See Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602 (1966).

3.   See U.S. CONST. amend. V.

4.   As discussed below, appellant did not file a motion to suppress his statement.

5.   U.S. CONST. amend. V.

6.   384 U.S. 436, 86 S. Ct. 1602.

7.   See TEX. CODE CRIM. PROC. ANN. art. 38.22, §§ 2, 3 (West Supp. 2016).

8.   See id. §§ 2, 3 (West Supp. 2016).

9.   Because appellant did not file a motion to suppress his statement or otherwise raise the issue of voluntariness at trial, the trial court was not required to make an independent finding as to whether his statement was made under voluntary conditions or make written findings of fact and conclusions of law. See TEX. CODE CRIM. PROC. ANN. art. 38.22, § 6 (West Supp. 2016) (“In all cases where a question is raised as to the voluntariness of a statement of an accused, the court must make an independent finding in the absence of the jury as to whether the statement was made under voluntary conditions. ․” (emphasis added)); see also Jackson v. Denno, 378 U.S. 368, 376–78, 84 S. Ct. 1774 (1964); Wolfe v. State, 917 S.W.2d 270, 282 (Tex. Crim. App. 1996) (“Whether a confession was in fact freely given is an issue to be decided at a Jackson hearing if that issue has been properly raised before the trial court.”).

Sherry Radack Chief Justice