Court of Appeals of Texas, Thirteenth District, Corpus Christi-Edinburg
appeal from the 404th District Court of Cameron County,
Justices Contreras, Longoria, and Hinojosa
LETICIA HINOJOSA Justice
Hector Vargas Hernandez appeals his convictions for
continuous sexual abuse of a child and two counts of
aggravated sexual assault of a child, all first-degree
felonies. See Tex. Penal Code Ann. §§
21.02, 22.021 (West, Westlaw through 2015 R.S.). A jury
returned a verdict of guilty and assessed punishment of forty
years' imprisonment for continuous sexual abuse of a
child and ten years' imprisonment for each count of
aggravated sexual assault of a child. The trial court
sentenced appellant accordingly and ordered the sentences to
run concurrently. By three issues, appellant argues the trial
court erred in (1) denying appellant's motion to suppress
his statement, (2) denying appellant's request for a jury
instruction under article 38.23 of the code of criminal
procedure, and (3) "commenting and ordering the jury to
go back and correct the verdict form." We affirm.
Motion to Suppress
first issue, appellant argues the trial court erred in
denying appellant's motion to suppress his confession.
Specifically, appellant maintains that he was not adequately
advised of his rights because the warnings read to him
"contained four warnings rather [than] the five
contemplated by Article 38.22." Appellant further argues
that the "written admonishments in Spanish . . .
consisted of a fatally defective translation using the word
'supracitada' which is a Portuguese
word[.]" As a result, appellant maintains that "his
waiver [of his rights] was not voluntar[ily], knowing[ly] or
counsel argued during a pre-trial hearing that
appellant's confession should be suppressed because
"[appellant] was not properly instructed on his
constitutional rights, and in the alternative, he didn't
understand them." The State presented only one witness
at the hearing-Alicia Garcia, an officer with the Harlingen
Garcia, reading from a written form, advised appellant of his
Mirandarights in Spanish prior to
questioning him. The warnings provided to appellant were as
1. You have the right to have an attorney present to give you
advice before and during interrogation.
2. If you are not able to obtain the services of an attorney
on your own, you have the right that one be appointed to you
so that he can give you advice before or during your
3. You have the right to remain silent and not make any
declarations or statements, and anything that you say may be
used as evidence against you in a court of justice.
4. You have the right to end said interrogation at any time
that you wish.
The Code determines that the officer who takes the
defendant's declarations must give him the aforementioned
warnings. The defendant, then, must knowingly, intelligently,
and voluntarily waive his right to an attorney and the right
to remain silent. Failure to comply with this will invalidate
initialed next to each of the enumerated rights and signed at
the bottom of the written form. Appellant told Officer Garcia
that he understood his rights. He then stated "Go ahead.
I want to talk. I also want to vent." The written
warnings, appellant's video-recorded statement, and the
English translation of appellant's recorded statement
were admitted into evidence.
Officer Garcia's testimony, appellant's counsel
presented further argument that appellant "was not
informed properly of his rights[.]" Specifically,
appellant's counsel objected to the use of the word
"supracitada" in the following sentence:
"El Codigo determina que el oficial que toma la
declaracion del acusado debe darle la advertencia
supracitada." The court interpreter informed the
trial court on the record that "if we separate the word
'supra citada, ' it means
'aforementioned.'" The interpreter translated
the sentence in its entirety as reading, "The Code
determines that the officer who takes the defendant's
declarations must give him the aforementioned warnings."
Appellant's counsel clarified that he was not arguing
that appellant did not understand each individual right that
was read to him. He was arguing only that
"supracitada" is not a word in the Spanish
language, and therefore, "[appellant's] rights were
incorrectly given to him." The trial court denied
appellant's motion to suppress.
subsequent pre-trial hearing, appellant's counsel urged
the following additional ground for suppression of
I'd ask the Court to take note that the Spanish version
of my client's rights being entered into evidence as part
of that hearing do not comply with Article 38.22. And given
that there are five particular rights, which my client is
supposed to receive before his statement is to be used as
evidence, this waiver of rights only has four lineated
rights. What this waiver did was combine . . . rights that
are supposed to be read to my client, and because of that,
I'm asking that my client's statement not be allowed
and used as evidence in this proceeding.
trial court again denied appellant's motion to suppress,
and later issued the following findings of fact and
conclusions of law:
[A]t the very beginning of the video Investigator Alicia
Garcia told [appellant] that he . . . did not have to speak
with her. The court finds [appellant] voluntarily agreed to
speak with Investigator Alicia Garcia. . . .
[I]nvestigator Alicia Garcia told [appellant] that she was
going to read him . . . his rights, and that if he did not
understand her Spanish to please tell her he . . . did not
understand her Spanish, and if you do not want to proceed
with [sic] do not have to proceed (with the interview). . . .
Investigator Lopez witnessed Investigator Alicia Garcia
reading the Miranda rights to [appellant] and
Investigator Lopez signed the document as witness. The video
most importantly shows [appellant] signing his initials on
each right read to him. . . .
[A]t the end of the reading of the Miranda rights,
[appellant] says he does not know how to read. The court
finds the Miranda rights do not have to be read by
[appellant], but must be read to him by an officer. . . .
[T]he Miranda rights were accurately read to
[appellant] and [he] understood his rights. . . .
[A]t the end of the reading of the Miranda rights[,
] Investigator Alicia Garcia AGAIN told [appellant] that he
did not have to speak with her, and if he chose to speak with
her, he could stop at any time. . . .
AFTER all of the rights were read[, ] Investigator Alicia
Garcia asked [appellant] if he wanted to talk with her about
the allegations or not. [Appellant] responded by asking
Investigator Alicia Garcia if he spoke with her could he
still hire a lawyer afterward. The investigator answered
["]Uh huh["] and she nods up and down indicating
yes. . . .
[Appellant] said [in Spanish] "Proceed, I want to talk.
. . . I want to vent." . . .
[Appellant] was read his Miranda rights in Spanish.
[Appellant] understood his Miranda rights.
[Appellant] does not read or write the English and Spanish
languages; however, there is no requirement that [appellant]
be able to read the Miranda rights to himself in
Spanish and/or English to himself. . . . [T]he rights must be
read to [appellant] preferably in his native language and in
the language [appellant] understand[s]. [Appellant] was read
the Miranda rights in Spanish, and [appellant]
understood his rights. [Appellant] chose out of his own free
will, freely and voluntary to speak to Investigators Garcia
and Lopez on video tape.
[Appellant] was not tricked into giving a confession and
[appellant] was told on multiple occasions that he did not
have to speak to the investigators. [Appellant] had multiple
opportunities to say he did not want [to] speak with the
investigators and [appellant] had multiple opportunities to
say he did not want to speak with the investigators until he
hired an attorney or one was appointed to represent him.
Standard of Review
reviewing the trial court's ruling on a motion to
suppress statements made as a result of custodial
interrogation, we apply a bifurcated standard of review.
Pecina v. State, 361 S.W.3d 68, 78-79 (Tex. Crim.
App. 2012) (citing Guzman v. State, 955 S.W.2d 85,
89 (Tex. Crim. App. 1997)); Nelson v. State, 463
S.W.3d 123, 126 (Tex. App.- Houston [1st Dist.] 2015, pet.
ref'd). We review the ruling in light of the totality of
the circumstances, giving total deference to the trial court
on questions of historical fact, as well as its application
of law to fact questions that turn on credibility and
demeanor. Pecina, 361 S.W.3d at 79; Leza v.
State, 351 S.W.3d 344, 349 (Tex. Crim. App. 2011). But
we review de novo the trial court's rulings on questions
of law and mixed questions of law and fact that do not depend
on credibility determinations. Pecina, 361 S.W.3d at
79; Leza, 351 S.W.3d at 349. We view the record in
the light most favorable to the trial court's ruling and
reverse the judgment only if it lies outside the zone of
reasonable disagreement. Hereford v. State, 339
S.W.3d 111, 118 (Tex. Crim. App. 2011); Nelson, 463
S.W.3d at 126.