Court of Appeals of Texas, Seventh District, Amarillo
On Appeal from the 331st District Court Travis County, Texas Trial Court Nos. D-1-DC-09-500099, D-1-DC-09-900170, Honorable Bob Perkins, Presiding.
Before QUINN, C.J., and CAMPBELL and HANCOCK, JJ.
JAMES T. CAMPBELL, Justice.
A jury convicted appellant Martha Hernandez of murder and tampering with or fabricating physical evidence and sentenced her to terms in prison of sixty and twenty years respectively. The trial court ordered that the sentences run concurrently. Through four issues she complains on appeal that the trial court erred in failing to suppress her recorded statement and certain testimony from her sister-in-law. We will overrule each of appellant's issues and affirm the judgments of the trial court.
Appellant does not challenge the sufficiency of the evidence supporting her convictions so we will discuss only so much of the evidence as necessary to the disposition of the appeal. In the early morning of February 25, 2009, a burning human corpse was discovered beside a road near an intersection in rural Travis County. A homicide investigation ensued. Among the physical evidence found at the scene was a military identification card belonging to appellant.
Forensic analysis showed the body was that of 21-year-old Christy Lynne Espinosa. The medical examiner determined that at the time of death Espinosa had a blood alcohol level of 0.28 and had ingested marijuana and several prescription medications. But the drug concentrations were at non-lethal levels. The examiner also noted Espinosa had sustained a non-lethal neck injury before death. Based on the autopsy and toxicology results the medical examiner concluded Espinosa was dead when the fire began. The cause of death, in the medical examiner's opinion, was suffocation. Tests of Espinosa's clothing and of soil underneath her body showed it had been doused with gasoline before being ignited.
Through their investigation, officers learned appellant was married to Kenneth Hernandez. But attempts to contact appellant by telephone were not successful. By March 5, 2009, officers were in communication with Kenneth's sister, Rebecca Hernandez. Rebecca told them appellant was in Mexico. Rebecca indicated to law enforcement that she and Kenneth wished to travel to Mexico and return appellant to the United States. Suppression hearing evidence showed officers did not authorize the trip to Mexico for appellant's return but made arrangements for her arrest on an unrelated warrant after she entered the United States.
On March 7, appellant was arrested in Eagle Pass. Authorities surrendered her to Travis County deputies to whom she gave a recorded statement before returning to Austin in their custody. Appellant gave officers a second statement on March 8 and a third statement on March 9. The third interview began after 11:00 p.m. and continued until about 3:00 a.m.
In her March 7 recorded statement, appellant said she went to several 6th Street bars during the evening of February 24 and early morning hours of February 25. She denied she was with her husband and claimed she was driven home by individuals she met that evening. She denied knowing Espinosa. Asked about her identification card lying next to Espinosa's body, she said her purse had been stolen.
By her March 8 statement, appellant acknowledged she and her husband had gone to 6th Street together, to celebrate Mardi Gras, and met Espinosa outside a bar. According to appellant's statement, after leaving one bar and being denied admittance to another because it was full, the three went to Kenneth's vehicle for cigarettes. They left in the car and drove to a convenience store on 51st Street, where Kenneth bought orange juice which they mixed with alcohol from a bottle in the car. They drove around, traveling at one point through a toll booth on Highway 183. After they realized Espinosa had lost consciousness, Kenneth bought a gasoline can and gasoline at another convenience store, drove to Hog Eye Road, removed Espinosa from the car, and poured gasoline over her body. At his direction, appellant located a cigarette lighter and gave it to Kenneth, who lit the body afire.
The March 8 statement also included the information that Kenneth contacted appellant after Espinosa's body was discovered. He told appellant she was in trouble and that she should say they had not been together on the evening of the 24th.
Appellant's March 9 statement added details regarding Espinosa's death. By this statement, appellant said that Espinosa became sick in the car after they left the convenience store on 51st Street. Early in this interview appellant continued to maintain that Espinosa simply died after becoming unconscious. Her story changed, however, after a second detective, Craig Smith, spoke with her. She told that when she commented to her husband that Espinosa had grown quiet, he said he had given her some "bars." She also told that both she and her husband had placed their hands over Espinosa's mouth. She further admitted that she "might have hurt [Espinosa's] head" by pulling her back to place her hand on her face. Appellant said, however, that as her husband continued to place his hand over Espinosa's mouth, she "just put [her] head down and blocked everything out." She denied killing Espinosa and said she acted out of fear of her husband. Although she acknowledged there was "wrapping paper" in the car, she denied it was used to suffocate Espinosa.
Appellant was indicted and moved to suppress the recorded statements. Following several pre-trial hearings, all grounds alleged for suppression were denied. The case proceeded to trial where a jury found appellant guilty of murder and tampering with physical evidence, and assessed punishment as noted.
On appeal, appellant's suppression issues are limited to her March 9 statement. In her first three issues, appellant contends the trial court erred by denying the motion to suppress the March 9 statement because: (1) the statement was rendered involuntary by detective Smith's repeated references during questioning to appellant's separation from her children, which violated her due process rights; (2) the statement was rendered involuntary by the detective's promises of leniency for cooperation and threats for lack of cooperation in violation of due process; and, (3) the statement was prompted by a promise of benefit in violation of article 38.21 of the Code of Criminal Procedure.
Issues One through Three
The appellate record contains both a copy of the March 9 recording and a written transcription. The facts surrounding taking the statement are not contested; rather, it is the outcome on application of law to the facts which brings the parties into disagreement. We will therefore review the trial court's ruling on the motion to suppress appellant's statement de novo. Oles v. State, 993 S.W.2d 103, 106 (Tex. Crim. App. 1999).
At the hearing on a motion to suppress a statement on the ground of involuntariness, it is the State's burden to prove by a preponderance of the evidence that the defendant's statement was given voluntarily. Tello v. State, No. 14-06-00525-CR, 2007 Tex.App. LEXIS 6658, at *5 (Tex. App.—Houston [14th Dist.] Aug. 21, 2007, pet. refused) (mem. op., not designated for publication) (citing Alvarado v. State, 912 S.W.2d 199, 211 (Tex. Crim. App. 1995)). See also Gentry v. State, 770 S.W.2d 780, 789 (Tex. Crim. App. 1988) ("The burden of proving that a confession was rendered voluntarily is on the state").
"A statement is obtained in violation of constitutional due process only if the statement is causally related to coercive government misconduct." Contreras v. State, 312 S.W.3d 566, 574 (Tex. Crim. App. 2010) (citing Colorado v. Connelly, 479 U.S. 157, 163-64, 107 S.Ct. 515, 93 L.Ed.2d 473 (1986)). A statement is rendered involuntary if by the coercive conduct of law enforcement a person's will is overborne and her capacity for self-determination critically impaired. Contreras, 312 S.W.3d at 574 (citing Schneckloth v. Bustamonte, 412 U.S. 218, 225-26, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973)). Determining its voluntariness requires examination of the totality of the circumstances under which the statement was obtained. Delao v. State, 235 S.W.3d 235, 239 (Tex. Crim. App. 2007) (citing Arizona v. Fulminante, 499 U.S. 279, 285-86, 111 S.Ct. 1246, 113 L.Ed.2d 302 (1991)). Assessing the totality of the circumstances concerns both the characteristics of the accused and the details of the interrogation. Bustamonte, 412 U.S. at 226.
The law permits police some use of psychological tactics to obtain the statement of a suspect. Henderson v. Hendricks, 02-4338 (MLC), 2005 U.S. Dist. Lexis 32897 at *31 (D.N.J. Dec. 13, 2005) (not designated for publication); Miller v. Fenton, 796 F.2d 598, 605 (3d Cir. 1986). Thus, for example, an interviewer may play on the suspect's sympathies or explain that honesty may be the best policy for a suspect hoping for leniency. Miller, 796 F.2d at 605; Rachlin v. United States, 723 F.2d 1373, 1378 (8th Cir. 1983) (although agents told suspect it was in his best interest to cooperate, resulting confession was voluntary); United States v. Vera, 701 F.2d 1349, 1363-64 (11th Cir. 1983) (same). "These ploys may play a part in the ...