Rodriguez v. State

ISAIAH RODRIGUEZ, APPELLANT v. THE STATE OF TEXAS, APPELLEE

NO. 12-16-00213-CR

COURT OF APPEALS TWELFTH COURT OF APPEALS DISTRICT TYLER, TEXAS

September 20, 2017

APPEAL FROM THE 371ST JUDICIAL DISTRICT COURT TARRANT COUNTY, TEXAS

MEMORANDUM OPINION

Isaiah Rodriguez appeals his conviction for injury to a child causing serious bodily injury. He presents four issues on appeal. We affirm.

BACKGROUND

Appellant, his wife Connie, and his two stepdaughters visited his cousin, Monica Garcia, on November 13, 2014. The next morning, Connie and Garcia went apartment hunting and left Appellant alone with his stepdaughters, P.M. and S.M. When they returned, P.M. was lying on a bed with her back toward the door. P.M. would not eat the following day, and by the evening, she had a fever and could not stand on her own. When P.M. started looking pale and sweating, Connie called 9-1-1. When the paramedics arrived, they performed mouth-to-mouth resuscitation and transported P.M. to Cook's Children's Hospital.

P.M. suffered several internal injuries consistent with being hit or kicked, including a macerated spleen, lacerated liver, traumatic pancreatitis, bruising to her adrenal gland, and internal bleeding. It was determined that these injuries must have occurred on November 14 because she had eaten dinner the previous evening and could not have done so if she was injured. P.M. also had multiple bruises to her face, torso, arms and back.

Appellant was arrested and charged by indictment with injury to a child causing serious bodily injury. He pleaded "not guilty" and the matter proceeded to a jury trial. The jury found Appellant "guilty" and sentenced him to imprisonment for eighty-seven years. This appeal followed.

VOLUNTARINESS OF STATEMENT

In his first issue, Appellant contends the trial court improperly admitted his recorded interview because he did not knowingly, intelligently, and voluntarily waive his rights under Miranda and Article 38.22 of the Texas Code of Criminal Procedure. Specifically, Appellant argues that the interviewing officer improperly induced him into confessing to the crime.

Governing Law and Standard of Review

In Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966), the United States Supreme Court held that the Fifth Amendment to the United States Constitution prohibits use of an accused's oral statement made as result of custodial interrogation unless he is given certain warnings and knowingly, intelligently, and voluntarily waives the rights set out in those warnings. See Miranda, 384 U.S. at 478-79, 85 S. Ct. at 1629-30. Specifically, an accused must be warned prior to any questioning "that he has the right to remain silent, that anything he says can be used against him in a court of law, that he has the right to the presence of an attorney, and that if he cannot afford an attorney[,] one will be appointed for him prior to any questioning if he so desires." Id., 384 U.S. at 479, 85 S. Ct. at 1630.

"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). Under Article 38.22, no oral statement of an accused made as a result of custodial interrogation shall be admissible against an accused in a criminal proceeding unless (1) the statement was recorded, and (2) prior to the statement but during the recording, the accused was warned of his rights and knowingly, intelligently, and voluntarily waived those rights. Id. art. 38.22 § 3(a) (West Supp. 2016); Joseph v. State, 309 S.W.3d 20, 23-24 (Tex. Crim. App. 2010). The warnings required by Article 38.22 include those stated in Miranda, as well as a warning that the accused "has the right to terminate the interview at any time." TEX. CODE CRIM. PROC. ANN. art. 38.22 §§ 2(a), 3(a)(2); Herrera v. State, 241 S.W.3d 520, 526 (Tex. Crim. App. 2007).

The State cannot use a statement that was induced by a promise "of such an influential nature that it could cause a defendant to speak untruthfully." Henson v. State, 440 S.W.3d 732, 743 (Tex. App.—Austin 2013, no pet.) (quoting Henderson v. State, 962 S.W.2d 544, 564 (Tex. Crim. App. 1997)). For a promise to render a statement inadmissible, the promise must be positive for the defendant, made or sanctioned by someone in authority, and of such an influential nature that the defendant would speak untruthfully in response. See Muniz v. State, 851 S.W.2d 238, 254 (Tex. Crim. App. 1993). To determine if the promise of a benefit was likely to influence a defendant to speak untruthfully, we must look to whether the circumstances of the promise made the defendant "inclined to admit a crime he didn't commit." Garcia v. State, 919 S.W.2d 370, 388 (Tex. Crim. App. 1994).

The State has the burden of showing by a preponderance of the evidence that an accused knowingly, intelligently, and voluntarily waived his rights. See Joseph, 309 S.W.3d at 24. "[T]he relinquishment of the right must have been voluntary in the sense that it was the product of a free and deliberate choice rather than intimidation, coercion, or deception." Id. at 25. Additionally, "the waiver must have been made with full awareness of both the nature of the right being abandoned and the consequences of the decision to abandon it." Id. In making a determination as to waiver, "the totality of the circumstances surrounding the interrogation" must be considered. Id. We review the trial court's decision to admit Appellant's interview under an abuse of discretion standard. See Martin v. State, 173 S.W.3d 463, 467 (Tex. Crim. App. 2005).

Analysis

At trial, the State offered into evidence the audio and video recording of an interview between Grant Gildon, a detective with the Arlington Police Department, and Appellant. During the interview, Appellant admitted to hitting and kicking P.M. while they were alone. Appellant objected to the video in a pre-trial motion in limine. Appellant argued that his statement was not voluntary because he was coming down from a heroin high, promised a cigarette if he cooperated, and told that he would be treated less severely if he lost control instead of planning to harm P.M. The trial court denied the motion after viewing the video. Appellant renewed his objection at trial, which the trial court overruled. On appeal, Appellant contends that he confessed only because he was promised a cigarette if he cooperated.

On the video, Detective Gildon identified himself and another detective and asked Appellant if he could read and write English. The detective then read Appellant his rights aslisted in Article 38.22. Appellant nodded and stated that he understood the warnings and then agreed to speak with the detectives. Immediately thereafter, Detective Gildon proceeded with his questioning and Appellant answered the questions. At no time did Appellant request an attorney or insist that the interview cease. Several times during the interview, including once before the assault was discussed, Appellant requested a cigarette, and Detective Gildon assured Appellant that he would get one. Detective Gildon told Appellant that he would get him a cigarette if Appellant told him what happened the day of the incident. Gildon repeatedly told Appellant that he knew Appellant had hurt P.M. and that he needed to know whether his actions were premeditated. After some further questioning, Appellant told Detective Gildon that he "snapped." Appellant then proceeded to tell the detectives the details of exactly what had occurred. Later in the interview, Detective Gildon offered to take a break and find Appellant a cigarette, but Appellant said he wanted to talk further first. When the interview was finished, Detective Gildon testified that he took Appellant to a courtyard where he smoked two cigarettes.

Although Appellant requested a cigarette several times during the interview, Gildon's promise to let Appellant have a cigarette is not the kind of promise that would typically be considered as influencing a person to speak untruthfully. See Flores v. State, Nos. 14-08-00835-CR, 14-08-00848-CR, 2010 WL 5238580, at *5 (Tex. App.—Houston [14th Dist.] Dec. 16, 2010, pet. ref'd) (mem. op., not designated for publication) (appellant requested a cigarette several times during videotaped interview, but detective's promise to let appellant have a cigarette break did not rise to the level of coercion or render statement involuntary); see also Vasquez v. State, 179 S.W.3d 646, 656 (Tex. App.—Austin 2005), aff'd, 225 S.W.3d 541 (Tex. Crim. App. 2007) ("detectives' vague promises of 'help,' or the promise of cigarettes, were not of such an influential nature that they would have caused Vasquez to speak untruthfully"); Muniz, 851 S.W.2d at 254 (determining that promise to contact charitable agencies to assist defendant's wife and mother was not the type of promise that would likely cause someone to confess to aggravated rape and murder). Moreover, Appellant was charged with a serious crime, a first-degree felony, and it is unlikely that he would confess to such a crime for the sake of a cigarette. See Flores, 2010 WL 5238580, at *5.

Gildon's success in persuading Appellant to disclose what happened to P.M. does not indicate that Appellant's decision was not made of his own free will. See Vasquez, 179 S.W.3d at 656. The recording demonstrates that Appellant appeared to understand his rights andanswered affirmatively when asked if he understood those rights. See Joseph, 309 S.W.3d at 25. The record reflects that Appellant possessed the basic reasoning skills necessary to understand his rights, and he readily conversed with investigators. See Gomes v. State, 9 S.W.3d 373, 377 (Tex. App.—Houston [14th Dist.] 1999, pet. ref'd). When Gildon gave Appellant the opportunity to have a cigarette, Appellant chose to talk further instead of accepting Gildon's offer. The record contains no evidence of intimidation or...