Court of Appeals of Texas, Fifth District, Dallas
Appeal from the Criminal District Court No. 6 Dallas County,
Texas Trial Court Cause Nos. F17-57212-X, F17-57213-X &
Justices Bridges, Partida-Kipness, and Carlyle.
L. CARLYLE, JUSTICE.
court's own motion, we withdraw our October 2, 2019
memorandum opinion and vacate the judgment of that date. The
following is now the court's opinion.
State appeals the trial court's order suppressing
appellee Kevin Castanedanieto's statement. For the
reasons that follow, we affirm.
review a trial court's ruling on a motion to suppress for
an abuse of discretion and apply a bifurcated standard of
review. Furr v. State, 499 S.W.3d 872, 877 (Tex.
Crim. App. 2016); State v. Aguilar, 535 S.W.3d 600,
604 (Tex. App.-San Antonio 2017, no pet.). We view the
evidence in the light most favorable to the trial court's
ruling, giving almost complete deference to the court's
determination of historical facts that the record supports,
especially those based on credibility or demeanor
assessments. Crain v. State, 315 S.W.3d
43, 48 (Tex. Crim. App. 2010); State v.
Garcia-Cantu, 253 S.W.3d 236, 241 (Tex. Crim. App.
2008). We review with this deference even in cases involving
video evidence. Montanez v. State, 195 S.W.3d 101,
109 (Tex. Crim. App. 2006). That is because our system does
not require parties to "concentrate their energies and
resources on persuading the trial judge" only to start
over on appeal, treating the trial proceedings as a
"tryout," and requiring parties to "persuade
three more judges at the appellate level." Id.
(citing and quoting Anderson v. Bessemer City, 470
U.S. 564, 574-75 (1985)).
afford that same deference regarding the trial court's
"application of law to questions of fact and to mixed
questions of law and fact, if resolution of those questions
depends on an evaluation of credibility and demeanor."
Crain, 315 S.W.3d at 48. For a mixed question of law
and fact that does not depend on credibility or demeanor
evaluation, we "may conduct" de novo review.
Id. "The winning side is afforded the
'strongest legitimate view of the evidence' as well
as all reasonable inferences that can be derived from
it." Duran, 396 S.W.3d at 571 & n.23
(citing State v. Weaver, 349 S.W.3d 521, 525 (Tex.
Crim. App. 2011); State v. Woodard, 341 S.W.3d 404,
410 (Tex. Crim. App. 2011)).
review the trial court's legal ruling de novo unless the
implied factual findings supported by the record are also
dispositive of the legal ruling. State v. Kelly, 204
S.W.3d 808, 819 (Tex. Crim. App. 2008). "[T]he party
with the burden of proof assumes the risk of nonpersuasion.
If this party loses in the trial court and the trial court
makes no explicit fact findings, then this party should
usually lose on appeal." Id. We must uphold the
trial court's ruling if it is supported by the record and
correct under any theory of law applicable to the case, even
if the trial court gave the wrong reason for its
ruling. State v. Stevens, 235 S.W.3d
736, 740 (Tex. Crim. App. 2007); Armendariz v.
State, 123 S.W.3d 401, 404 (Tex. Crim. App. 2003).
was eighteen years old, an immigrant from El Salvador some
five years prior, and did not graduate high school. He made
two custodial post-arrest statements. He made the first to
Detective Thayer shortly after arrest, around 3:00 a.m., and
made the second to Detective Garcia the next day, around
dinner time. The record includes video recordings of both
statements. The State sought to admit only the second
Thayer began the first interrogation by saying, "I'm
working on this case . . . kind of a mess, huh? Kind of a
mess. We'll talk about it here in a
minute." Shortly thereafter, Detective Thayer was
authoritative, using gestures as he spoke: he told
Castanedanieto, "take your arms out of your shirt . . .
it's a respect thing though, right, cause we're
gonna have a conversation and we're gonna be
truthful with each other."
the first four minutes of the video, Detective Thayer asked
Castanedanieto several background questions. Thayer then read
Castanedanieto his Miranda rights in English. When
he asked Castanedanieto if he understood the rights he read
to him, Castanedanieto tilted his hand back and forth. The
detective asked, "A little bit?" to which
Castanedanieto nodded his head and explained that he did not
speak a lot of English. When Castanedanieto indicated that he
could read Spanish, Detective Thayer had him read the
Miranda card in Spanish.
Castanedanieto read the card out loud and was asked if he
understood, Castanedanieto, looking down at the table, moved
his head slightly. The detective then asked Castanedanieto if
he was willing to talk to him, at which point he looked up at
Detective Thayer and uttered "um." As
Castanedanieto looked back down at the table, Detective
Thayer continued, saying, "to try to figure this all
out." Castanedanieto then looked up at the detective
while tapping and rubbing his cheek with his hand and said,
"It's 'cause-um-I don't understand."
Detective Thayer then declared, "Ok, let's talk
about what happened tonight," to which Castanedanieto
responded, "Yes, sir." Castanedanieto answered
Detective Thayer's questions for the next twenty-two
next day Detective Garcia took his turn interrogating
Castanedanieto. Garcia testified he was investigating crimes
similar to those for which Castanedanieto and his cohort were
arrested. Detective Garcia went to the jail and asked
Castanedanieto if he would come to police headquarters for an
interview. Castanedanieto agreed. Detective Garcia got him
food from McDonald's and brought him back to the
interrogation room, where he was allowed to eat before the
detective conducted the interrogation. They spoke in English.
It is not clear what Detective Garcia knew of
Castandanieto's prior interrogation, though he certainly
knew it had occurred and that Castanedanieto had confessed to
video played at the hearing, Garcia explained to the trial
court that during the initial questioning while he was trying
to get to know Castanedanieto, he had no concerns about
Castanedanieto's understanding of what he was saying and
that Castanedanieto responded properly to his questions. The
video depicts Garcia asking Castanedanieto about the police
in El Salvador. Castanedanieto responded they are "not
good." Garcia then declared, "Basically, we're
gonna go over everything that you talked about with the other
detective and now that you've had a couple of days to
think about stuff, maybe you might remember something that
you didn't, or you might have some questions of your own
for me that I'll try to answer."
Garcia finished reading Castanedanieto his Miranda
rights and asked him if he understood the rights he read to
him, Castanedanieto responded "Yes" and nodded his
head. Detective Garcia also testified he did not promise
Castanedanieto anything in exchange for the statement, nor
did he threaten or coerce him into giving him a statement.
That said, Garcia bought Castanedanieto McDonald's for
dinner, which was not insignificant to the eighteen-year-old.
Castanedanieto ate the food and commented that he hoped it
would not prove to be his last hamburger for awhile. Garcia
attempted to downplay Castanedanieto's concern and
continued with his interrogation.
watching the two interrogation videos, and after hearing
Garcia testify regarding his interaction with Castanedanieto,
the trial court suppressed the second video interrogation.
of law to facts
State asserts in its issue that the trial court erred in
suppressing Castanedanieto's second statement because
that statement "was given knowingly, intelligently, and
voluntarily," and Castanedanieto's "Fifth and
Sixth Amendment rights to counsel were not violated."
Based on our abuse-of-discretion review, we conclude the
trial court's ruling is supported by the record.
trial court could have based its suppression in part on the
continued behavior of law enforcement figures declaring to
Castanedanieto that he would speak to them in the
interrogation setting. The evidence supports an inference
that Detective Thayer's declarative statements set the
tone for an expectation that Castanedanieto would speak to
authorities that overbore Castanedanieto's will and made
his statements involuntary. Thayer told Castanedanieto twice
that he would be talking to the detective and then, despite
going through the motion of providing Miranda
warnings in English and Spanish, despite Castanedanieto
expressing hesitation by acts and words, failed to elicit any
verbal or non-verbal assent to waiving those rights. Instead,
he said, "Ok, let's talk about what happened
tonight." Castanedanieto responded "Yes, sir"
and went on to tell on himself extensively. The very next
day, Detective Garcia came calling and, though to a lesser
extent than Thayer, he too declared to
Castanedanieto that he would talk. Further, Detective Garcia
reminded Castanedanieto of his interrogation and confession
the day before, suggesting he may have more to tell the
second time around. This reference to the former confession
gave the trial court sufficient basis to have concluded that
Castanedanieto's second confession was motivated, if only
in part, by so-called cat-out-of-the-bag
court of criminal appeals has set forth a list of factors and
guiding principles to govern courts' analysis of the
situation we have here, when a criminal defendant complains a
latter confession was tainted by a prior one. See
Sterling v. State, 800 S.W.2d 513, 519-20 (Tex. Crim.
App. 1990) (factors to be considered when determining whether
a former confession's illegality tainted a later one are:
(1) whether the condition rendering the first confession
inadmissible persisted through later questioning; (2) the
length of the break in time between the two confessions; (3)
whether the defendant was given renewed Miranda
warnings; (4) whether the defendant initiated the
interrogation which resulted in the later confession; and (5)
"any other relevant circumstances," including
whether a magistrate warned defendant of his rights between
confessions, whether the defendant's latter confession
was motivated by earlier improper influences brought to bear
on him, whether the defendant remained in custody between the
confessions, whether the defendant conferred with counsel
between confessions or requested counsel, and whether the
defendant gave the second confession when he otherwise might
not have because he had already given the first
analytical standpoint, Sterling involved the
opposite (and much more common) procedural situation from
this case-a criminal defendant's appeal from the denial
of his motion to suppress. The CCA held the trial court's
denial of suppression of Sterling's first confession to
be error that, upon further analysis, was harmless in light
of the proper admission of his subsequent confession.
Id. at 518. The first detective in that case
unquestionably misled Sterling in a way clearly prohibited by
law. Id. at 515, 518. The second detective in
Sterling did not compound the error the first
detective made by making similar promises to Sterling. Also,
he came from a different law enforcement agency, did not
question Sterling about the prior confession, nor "did
he use this confession to elicit the latter confession from
appellant." The second detective said he knew nothing
about the earlier improper statements to Sterling. And,
finally, Sterling never invoked his Miranda rights,
clearly waiving them each time he was warned. Id. at
the trial court granted the motion to suppress. We
could easily write the opinion affirming the trial
court's action had it denied
Castanedanieto's motion to suppress. But we just as
easily affirm the grant of the motion to suppress because of
the wide discretion a trial court has in making this
decision. We stress that the video is not the only piece of
evidence the trial court evaluated here. Detective Garcia
testified at the hearing, providing testimony regarding his
visit to Castanedanieto at the county jail, his invitation
back to police headquarters, his offer to buy Castanedanieto
dinner, and the substance of their conversation during those
events. Garcia discussed their lack of speaking any Spanish
to one another, as well as his perception that Castanedanieto
knew and understood English. The trial court had full
discretion to assess Garcia's credibility and to view his
demeanor. And, nothing in either video goes so far as to
become "indisputable video evidence" of
Castanedanieto's voluntariness to speak, given what we
infer the trial court concluded about the first confession
and what it could have inferred about Garcia and the second
confession. Nothing in the second video indisputably
demonstrates Castanedanieto was not under the influence of
the detectives' declarations that he would speak
to them or that he was not motivated at least in part by
that in Oregon v. Elstad, the Supreme Court walked
back its recognition of the cat-out-of-the-bag theory as a
basis for excluding confessions. See 470 U.S. 298,
314 (1985). The Court in Elstad said "the mere
fact that a suspect has made an unwarned admission does not
warrant a presumption of compulsion." Id. And,
administering Miranda warnings to a "suspect
who has given a voluntary but unwarned statement ordinarily
should suffice to remove the conditions that precluded
admission of the earlier statement." Id. In
those circumstances, the "finder of fact may reasonably
conclude that the suspect made a rational and intelligent
choice whether to waive or invoke his rights."
Elstad's "may reasonably" language
does not require appellate courts reviewing a grant of
suppression to reverse if the court can reweigh the facts in
a way that may warrant a conclusion that denying the motion
was possible. Our function in this case is to
review the trial court's actions for an abuse of
discretion. We must examine the video evidence to determine
if it renders certain facts or circumstances indisputable,
but are not to act as if the trial court proceedings were
just a tryout. See Montanez, 195 S.W.3d at 109
(citing and quoting Anderson, 470 U.S. at
record, we conclude the trial court did not abuse its
discretion by granting Castanedanieto's motion to
suppress his second statement. We affirm the trial
Bridges, J., dissenting.
withdraw my October 2, 2019 dissenting opinion. This is now
my dissenting opinion.
State's appeal involves whether the trial court properly
granted appellee's motion to suppress a second videotaped
oral statement to police. Appellee presented two arguments to
the trial court supporting suppression: (1) appellee's
first confession to police was involuntary because he did not
understand his Miranda rights; therefore, his second
confession was tainted; and (2) officers violated his Sixth
Amendment right to counsel by conducting the second
interview. Because the record establishes sufficient
attenuating circumstances between the confessions to remove
any alleged taint, the trial court abused its discretion by
suppressing appellee's second confession. Accordingly, I
would reverse the trial court's order and remand for
further proceedings. I respectfully dissent from the majority
was arrested on August 10, 2017 for four aggravated robberies
arising from two criminal episodes involving different
victims. He was indicted on three charges in which he
allegedly exhibited a handgun while in the course of
approximately 3:00 a.m. on August 10, 2017, Detective
Thayer advised appellee of his
Miranda rights and conducted a custodial interview.
Detective Thayer then interviewed appellee for approximately
twenty-two minutes. Appellee admitted consuming alcohol,
marijuana, and cocaine prior to the crime spree and claimed
not to remember some details. He admitted to touching a gun
and firing it once in the air, but denied ownership of the
gun or shooting it toward a white truck. He recalled stealing
two cell phones from two women at different apartment
complexes, but he threw them away. At the end of the
interview, Detective Thayer explained appellee would appear
before a judge who would talk to him and explain the charges.
Detective Thayer reiterated appellee could obtain a lawyer.
magistrate arraigned appellee at 7:36 p.m. that evening.
Appellee requested a court-appointed attorney.
August 11, 2017, at 12:21 p.m., the trial court appointed
counsel; however, counsel declined the appointment. The
record does not indicate the time counsel declined the
appointment. Around "dinnertime," Detective
Olegario Garcia transported appellee from jail to the police
station for questioning. Detective Garcia removed
appellee's handcuffs and let him eat food from
McDonald's before the interview. Appellee received
Miranda warnings again and willingly participated in
counsel, who accepted the appointment on August 14, 2017,
filed an omnibus pretrial motion requesting, among other
things, a hearing prior to the introduction of any statements
allegedly made, either orally or in writing, "to
determine the admissibility of ...