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Reversed and Remanded and Opinion filed November 28, 2006.
Fourteenth Court of Appeals
ANGEL RESENDEZ, Appellant
THE STATE OF
On Appeal from the 182nd District Court
Trial Court Cause No. 960,399
O P I N I O N
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. 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. 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; Afreaked;@ 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. 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 filed two motions 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.
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
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.
We will not disturb the trial court=s findings if they
are supported by the record.
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 to give appellant Miranda warnings. Appellant=s counsel argued that after appellant took a polygraph examination, he failed the polygraph, and he was interrogated at some length. Then, appellant and police moved to another room where the second videotaped statement was made, which appellant contends only contains questions geared toward verifying the earlier confession. The parties then argued to the trial court whether it should consider appellant=s prior testimony in Perez=s trial, specifically where the prosecutor asked appellant if his statement was given freely and voluntarily, whether he was shown the exit door of the room, or whether he was offered drinks or coerced by police. The trial court took judicial notice of appellant=s testimony from Perez=s trial and made it part of the record in this case. No further discussion occurred about the statement allegedly given during the period in between the polygraph examination and the second videotaped statement, and no other evidence was admitted during the hearing. The trial court denied the motion to suppress, stating it did not recall hearing any testimony by appellant that his confession was not voluntarily made.
B. Judicial Notice of Prior Testimony
In the issue raised before this court, neither party addresses whether the trial court=s decision to take judicial notice of appellant=s prior testimony in Perez=s trial was appropriate. The parties only ask this court to consider whether appellant=s confession was voluntary or custodial without regard to Miranda warnings. Because no other evidence was admitted at the suppression hearing, we first consider whether the trial court correctly took judicial notice of appellant=s prior testimony.
During the suppression hearing, the trial court declared it was using appellant=s prior testimony in Perez=s trial to rule on whether to grant or deny appellant=s motion to suppress. The parties presented no other evidence at the hearing. During Perez=s trial, appellant was only partially represented by counsel, and from the record of his testimony at the prior proceeding, which was included in our appellate record, appellant would not re-enter the courtroom after a break in testimony because his counsel was not present. The trial court then instructed the bailiff to bring appellant into the courtroom to continue his testimony regardless of whether his trial counsel was present because appellant was a witness during that proceeding. Appellant did not make a complaint on the record at Perez=s trial or during his trial for this offense, but that decision by the trial court, coupled with the court=s decision to take judicial notice of the same testimony, is problematic.
Rule of Evidence 201 governs the trial court=s ability to take judicial notice of
adjudicative facts not subject to reasonable dispute. See Tex. R. Evid. 201(b);
Garza v. State, 996 S.W.2d 276, 279 (Tex. App.CDallas 1999, pet.
judicially noticed fact is not subject to reasonable dispute if it is either
(1) generally known within the territorial jurisdiction of the trial court or
(2) capable of accurate and ready determination by resorting to resources whose
accuracy cannot reasonably be questioned. Tex. R. Evid. 201(b). A trial
court may take judicial notice of its own orders, records, and judgments
rendered in cases involving the same subject matter and between practically the
issue of whether it is appropriate for a trial court to take judicial notice of
testimony from another defendant=s criminal trial in order to resolve
an issue in a later trial is complex. The Dallas Court of Appeals held in
Garza v. State that a trial court erred when taking judicial notice of
testimony from a co-defendant=s separate trial, which was used to determine whether
evidence in the defendant=s trial was admissible, because the facts judicially noticed
were not capable of accurate and ready determination. 996
S.W.2d at 279B80.
In Garza, the facts judicially noticed were vigorously disputed by the
defendant at his trial.
made by an individual, even under oath, are generally not the type of facts
capable of accurate and ready determination by a source whose accuracy cannot
reasonably be questioned.
Here, the facts the trial court utilized to determine whether appellant=s second statement was made while he was in custody are disputed by appellant. The testimony the trial court judicially noticed was inherently swayed towards the viewpoint of opposing parties at Perez=s trial. At Perez=s trial, appellant was questioned by the prosecutor, who was the same prosecutor trying appellant=s case. Appellant was also questioned by Perez=s attorney, who, of course, was seeking to present appellant=s testimony in a light most favorable to Perez. Appellant did not have an opportunity to present the facts in the light most favorable to himself at Perez=s trial.
reasons stated, the trial court erred when it took judicial notice of the
factual content of appellant=s prior testimony. Appellant=s prior testimony did not contain
adjudicative facts capable of accurate and ready determination that may have
been used by the trial court to decide whether appellant=s second statement was voluntary or
whether appellant was in custody and Miranda warnings were
required. While a trial court has discretion in choosing the format in
which evidence is presented during a suppression hearing, a court is not
permitted to consider inadmissible evidence. See Tex. Code Crim. Proc. Ann. Art. 28.01 ' 1(6) (
C. Custodial Interrogation
Appellant argues that he was in custody when his second
videotaped statement was made, and therefore, the police were required to give
him Miranda warnings. See Miranda v.
is in Acustody@ if, under the circumstances, a
reasonable person would believe that his freedom of movement was restrained to
the degree associated with a formal arrest. Dowthitt v. State,
931 S.W.2d 244, 254 (Tex. Crim. App. 1996).
The Areasonable person@ standard presupposes an innocent person.
(1) probable cause to arrest,
(2) subjective intent of the police,
(3) focus of the investigation, and
(4) subjective belief of the defendant.
Court of Criminal Appeals has outlined at least four general situations which
may constitute custody: (1) when the suspect is physically deprived of
his freedom of action in any significant way, (2) when a law enforcement
officer tells the suspect that he cannot leave, (3) when law enforcement
officers create a situation that would lead a reasonable person to believe that
his freedom of movement has been significantly restricted, and (4) when there
is probable cause to arrest and law enforcement officers do not tell the
suspect that he is free to leave.
Our custody analysis begins with a review of the objective circumstances. The complainant Amanda Garza was killed and found dead in the early morning hours of Sunday, August 31, 2003. The complainant was last seen with appellant and Perez shortly before she was killed. The complainant=s body was found near appellant=s home. On the day the complainant was killed, police officers located appellant and asked to speak with him. Appellant agreed and gave his first statement that he was present with Perez when Perez shot the complainant. After investigating appellant=s first statement, the police officers asked appellant to take a polygraph test, which he took and failed. The police officers then wanted to question appellant further. Appellant agreed and started answering questions again, in what became his second statement.
During this interrogation, appellant stated for the first time that he was the first one to shoot the complainant, firing at her one time. At no time during this interrogation did the law enforcement officers tell appellant that he was free to leave. The record reflects that the interrogation lasted twenty-three minutes and that the officers asked appellant if he wanted to use the restroom at the end of the interrogation. The State concedes on appeal that appellant was arrested shortly after this second interrogation during which he admitted shooting the complainant. Although not reflected by the record that was before the trial court when it ruled on the motion to suppress, appellant=s trial counsel conceded during the suppression hearing that appellant was offered something to drink.
During the second interrogation, appellant stated for the
first time that he was the one who first shot the complainant. He did not
assert that he shot the complainant accidentally or otherwise indicate facts
that would arguably remove criminal liability. When appellant made these
statements, there was probable cause to arrest appellant, yet the law
enforcement officers did not tell appellant that he was free to leave. As
noted by the Dowthitt court, the officers did
not have to tell appellant that there was probable cause based on this
statement by appellant; it is enough that the information substantiating
probable cause is related by the suspect to the officers. Dowthitt, 931 S.W.2d at 255B57.
Therefore, this case falls under the fourth situation described in Dowthitt. Id. (stating and holding that
statements by suspect creating probable cause are sufficient to trigger the
fourth situation, without requiring that officers advise the suspect they
believe there is probable cause); Ruth v. State, 645 S.W.2d 432, 436
(Tex. Crim. App. 1979) (same); Xu
v. State, 100 S.W.3d 408, 413B15 (Tex. App.CSan Antonio 2002, pet. ref=d) (same); Fielder
v. State, 991 S.W.2d 70, 81B83 (Tex. App.CSan
Antonio 1998, no pet.) (same); State v.
Presuming for the sake of this analysis that appellant was innocent, he still knew that the complainant had been killed and found dead near appellant=s home, in the early morning hours of Sunday, August 31, 2003. The complainant=s dead body was found shortly after she was seen getting into a car with appellant and Perez. On the day the complainant was killed, police officers located appellant and asked to speak with him. Appellant gave his first statement that he was with Perez when Perez shot the complainant. After investigating appellant=s first statement, the police officers asked appellant to take a polygraph test, which he took and failed. Appellant then agreed to answer more questions, and during this second interrogation, appellant stated for the first time that he was the first one to shoot the complainant, shooting her one time. The existence of probable cause, the officer=s failure to tell appellant that he could leave, and these other circumstances would lead a reasonable person in appellant=s position to believe that he was under restraint to the degree associated with an arrest after admitting that he was the first one to shoot the complainant. See Dowthitt, 931 S.W.2d at 255B57 (holding that circumstances showed interrogation became custodial after appellant admitted he was present during the murders, giving rise to probable cause and citing favorably the Ruth court=s determination that the interrogation in Ruth had become custodial); Ruth, 645 S.W.2d at 436 (concluding that suspect=s statement to officer that he shot the complainant created probable cause and made the interrogation custodial from that point on); Xu, 100 S.W.3d at 413B15 (concluding that suspect=s statement to officer that he grabbed the complainantCwho had been strangledCby the throat created probable cause and made the interrogation custodial from that point on); Fielder, 991 S.W.2d at 81B83 (concluding that suspect=s agreement with officer=s description of events, which indicated that suspect murdered the complainant, created probable cause and made the interrogation custodial from that point on); Zamora, no. 14-96-00744-CR, 1997 WL 428470, at *2B4 (concluding that suspect=s statement that she shot the complainant created probable cause and made the interrogation custodial from that point on).
Because the interrogation of appellant was custodial from the point after which appellant admitted he shot the complainant, the trial court erred in denying appellant=s motion to suppress this part of appellant=s statement based on appellant=s failure to receive the required warnings from the law enforcement officers or waive his rights. See Tex. Crim. Proc. Code Ann. art. 38.22, ' 3; Ruth, 645 S.W.2d at 436; Xu, 100 S.W.3d at 413B15.
Having determined that the trial court erred in denying appellant=s motion to suppress, we must decide whether this error is reversible. See Tex. R. App. P. 44.2. The error in this case violated appellant=s federal constitutional rights. See Xu, 100 S.W.3d at 415. Further, the Court of Criminal Appeals has stated that appellate courts are not to speculate as to an appellant=s reasons for pleading guilty or as to whether appellant would have pleaded guilty if a motion to suppress had been granted. See McKenna v. State, 780 S.W.2d 797,799B800 (Tex. Crim. App. 1989); Kraft v. State,762 S.W.2d 612, 613B15 (Tex. Crim. App. 1988). As long as the evidence that should have been suppressed Awould in any measure inculpate the accused,@ this court must presume that the trial court=s denial of appellant=s motion to suppress influenced appellant=s decision to plead guilty and is reversible error. See McKenna, 780 S.W.2d at 799B800; Kraft,762 S.W.2d at 613B15. Because some of the statements made by appellant after the interrogation became custodial were Ain any measure@ inculpatory, we presume the trial court=s erroneous denial of appellant=s motion to suppress influenced appellant=s decision to plead guilty. Therefore, the error is reversible.
Accordingly, we reverse the trial court=s judgment and remand for a new trial consistent with this opinion.
/s/ John S. Anderson
Judgment rendered and Opinion filed November 28, 2006.
Panel consists of Justice Anderson, Edelman and Frost.
 Perez was with the group at the club but did not make it to the hotel afterwards, either because he was tired or because he got separated from the group.
 Miranda v.
 The exact content of any audiotaped conversations and their value to police is unclear. Appellant claims he gave multiple tapes to police on which Perez admitted to shooting Garza. The State alleges appellant turned over only one tape, which contains no clear admissions by Perez that would clear appellant of any involvement.
 Appellate courts in