Opinion filed July 1 8 , 2013



### In The 

# Eleventh Court of Appeals

__________ No. 11

- 11

- 00 356

- CR

__________ SUNNY J. HIGNOJOS, Appellant

V. THE STATE OF TEXAS, Appellee

On Appeal from the 70 th District Court Ector County, Texas Trial Court Cause No. A

- 37,164

M E M O R A N D U M O P I N I O N The jury found Sunny J

. Hignojos , Appellant, guilty of the murder of Jaime
Morales Jr. and assessed his punishment at confinement for forty years

. The trial
court sentenced him in accordance with the verdict of the jury

. 1 We affirm.

1 Appellant was sentenced to serve his punishment in two related cases consecutively to his punishment in this case. In Cause No. A

- 37,159 in the 70th District Court of Ector County, Texas, Appellant was convicted of attempted capital murder and evading arrest or detention, and on appeal in this court, Cause No. 11

- 12

- 00158

- CR, we have this day affirmed the trial court’s judgment. In Cause No. A

- 37,160 also in the 70th District Court of Ector County, Texas, Appellant was convicted of aggravated assault with a deadly weapon, and on appeal in this court, Cause No. 11

- 12

- 00358

- CR, we have this day affirmed the trial court’s judgment.2 Appellant complains that the trial court did not hold an Article 38.22 2 hearing on the voluntariness of his post

- arrest statements to law enforcement
officers and that the trial court erred in admitting those statements during Appellant’s cross examination and through officers’ testimony in rebuttal

. Because the issues are inte rrelated, we will discuss them together.
I. The Evidence at Trial Although Appellant does not challenge the sufficiency of the evidence, we provide the following factual recitation for context in reviewing Appellant’s issues

. Becky Wakefield lived at a trailer on West 26 th Street in Odessa with Jai m e Morales Jr. ; Roger Mundy III; and Raymond Arthur Modisett Jr., the owner of the
trailer

. Wakefield and her friends

— Eddie Palma
, Sam uel Ortiz
, and Natalio
Ortiz

— left one party late one evening to go drink at Modisett’s trailer

. Tony Lujan, Amy Cardona, Trini Dominguez, and Ra mo n Mancha as well as Modisett, Morales, and Mundy were at the trailer when Wakefield and her friends arrived

. A short time later, Palma and Lujan argued over gang “colors” ; Palma was a “blood
, ”
and Lujan was a “crip.” Wakefield asked Lujan to leave
, and he did

. Palma called
Rafael Alvarez Jr., known as “C

. J

. , ” and Appellant to come and get him

. When Alvarez and Appellant showed up
, Appellant had a shotgun with him
, and Alvarez had a .25 caliber pistol

. A pit bull named Snowflake bit Appellant as he came up to the trailer. Appellant threatened to shoot Snowflake
, and Wakefield argued with Appellant about those threats

. Morales came out of the trailer and told Appellant not to shoot Snowflake

. Morales and Alvarez began to argue , and Alvarez tried to “pistol whip”
Morales

. As they fought
, they fell down
, and Morales was on top of Alvarez

. Modisett, Cardona, and Samuel Ortiz testified that Appellant then shot Morales in
the back. Samuel Ortiz
, Wakefield
, and Mancha testified that Appellant also shot

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. art. 38.22 (West 2005).3 Snowflake and also shot each one of them. Mund y said that he hear d shots, came out of the trailer
, and saw Morales on the ground when Appellant shot at him

. Morales died a short time later from the gunshot wound to his back

. After the shootings, Appellant
, Alvarez, and Palma fled in Appellant’s Dodge Ram pickup. Deputy David Escudero was taking a criminal mischief report about a block away from West 26th Street when he heard gunshots

. Deputy Escudero saw a Dodge Ram pickup leaving the area
, and he pursued it. He stopped the pickup on 16th S treet

. Deputy Escudero ordered the driver , Appellant, to turn off the pickup
and get out of it, but Appellant did neither. Instead, Appellant drove away at a high rate of speed
, and Deputy Escudero pursued him at speeds between 90 and
110 m iles per hour . Deputy Escudero said that the backseat passenger shot at him through the recently opened, sliding rear window of the pickup and that he
returned fire. A short time later, the pickup hit a telephone pole g uy wire, flipped over on its side, and crashed

. Appellant and Palma got out of the pickup and ran
away. Another passenger, Alvarez was injured in the wreck and was pinned in the right front passenger seat

. Hunter Lewis , a trooper with the Texas Department of Public Safety, responded to the crash site and assisted in searching for Appellant and Palma

. Trooper Lewis located Appellant in a field a short distance from the wrecked pickup and arrested him. Investigator Diallo Bass completed an investigation and spoke to several witnesses . Although Modisett initially said that Palma was the one who shot Morales, all of the witnesses, including Modisett
, eventually identified Appellant as the one who shot Morales

. Investigators retrieved Appellant’s clothing from him
, a shotgun from his pickup
, spent shotgun shells
near the trailer
, and pistol casings nea r the trailer ; they found more shells and casings in Appellant ’s pickup

. Spent shotgun shells, a pistol, and a spent pistol4 casing also were found along the pursuit route

. The recovered shells and casings matched Appellant’s shotgun and Alvarez’s pistol. Appellant 3 denied shooting anyone and claimed that Palma, who m he said he only knew as E.P., was the shooter. 4 While in custody, Appellant made post

arrest statements to Trooper Lewis
, Sergeant Steven McNeil
, and Investigators Bass and Jones . Those statements were inconsistent with Appellant ’s
trial testi mony

. Appellant asserted that his post

- arrest custodial statements were not voluntary because he was not read his Miranda 5 warnings

. Appellant admitted
that he had been given his Miranda warnings , but he claimed that he had not
received the following warnings from Trooper Lewis:
1. “ right to remain silent ”;

2. “ right to an attorney [to be present during questioning] ” ;

3. “ right to have an attorney appointed for you if you cannot afford

one ” ; and

4. “ anything you say can and will be u sed against you in a court of law

. ”
Appellant also said he received no warnings from anyone else. Trooper Lewis
testified that he gave Appellant his Miranda warnings upon arrest , and Sergeant
McNeil testified that he heard others also give Appellant his Miranda warnings again when Appellant was near Sergeant McNeil’s patrol vehicle. Investigator Jones also read Appellant h is Miranda warnings at the detention center

. Appellant voluntarily spoke to all four officers but denied doing so

.

3 Appellant was advised by defense counsel and admonished by the c ourt about taking the stand and waiving his Fifth Amendment rights; Appellant, nonetheless, chose to testify.

4 Palma was incarcerated a nd did not testify.

5 Miranda v. Arizona , 384 U.S. 436 (1966).5 II. Issues Presented
In his first issue
, Appellant claims that the trial court erred when it did not hold a hearing and find that the statements he made to Trooper Lewis were involuntary and inadmissible

. In Appellant’s second and third issue s , he assert s that the trial court made similar errors when it admitt ed statements that Appellant
made to Investigators Bass and Jones and to Sergeant McNeil.
III. Discussion and Analysis Appellant argues that his unrecorded , post

- arrest statements made to four
law enforcement officers were inadmissible under Article 38.22 of the Texas Code of Criminal Procedure because they were not voluntary and because he did not
receive his Miranda warnings before he made the statements

. The State argues that Appellant received his Miranda warnings multiple times and that Appellant’s
statements were not introduced in its case

- in

- chief, but were used for the impeachment of Appellant and were voluntary. The State also argue s that Appellant waived his voluntariness complaint and that
, even if the trial court erred,

any error was harmless. We use a harm analysis to review a proper Article 38.22 complaint.
Davidson v. State , 25 S.W.3d 183, 18 7 n.4 (Tex. Crim. App. 2000). We review
, under an abuse of discretion standar d
, Appellant’s assertion that the trial court
erred when i t admitt ed the statements that he made to Trooper Lewis, Investigators Bass and Jones, and Sergeant McNeil a s well as their testimony about his

statements. Montgomery v. State , 810 S.W.2d 372, 378 (Tex. Crim. App. 1990).
We defer to the trial court’s factual determinations whe n the credibility and
demeanor of the witnesses are at issue. Guzman v. State , 955 S.W.2d 85, 91 (Tex. Crim. App. 1997). A trial court abuses its discretion when it admit s o r exclud es evidence if its decision lies outside of the zone of reasonable disagreement.6 Green v. State , 934 S.W.2d 92, 101

– 02 (Tex. Crim. App. 1996). We turn ou r attention first to Article 38.22.
Section 3 ( a ) of Article 38.22 provides that oral statements of an accused garnered during custodial interrogation are inadmissible against the accused in a criminal proceeding unless several requirements are met

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. art. 38.22 , § 3 (a) (West 20 05 ). Article 38.22, s ecti on 3(a) states: (a) No oral or sign language statement of an accused made as a result of custodial interrogation shall be admissible against the accused in a criminal proceeding unless:
(1) an electronic recording, which may include motion picture, video tape, or other visual recording, is made of the statement;
(2) prior to the statement but during the recording the accused is given the warning in Subsection (a) of Section 2 above and the accused knowingly, intelligently, and voluntarily waives any right s set out in the warning;
(3) the recording device was capable of making an accurate recording, the operator was competent, and the recording is accurate and has not been altered;
(4) all voices on the recording are identified; and
(5) not later than th e 20th day before the date of the proceeding, the attorney representing the defendant is provided with a true, complete, and accurate copy of all recordings of the defendant made under this article.

When Article 38.22, section 3(a) was first enacted, it included a prohibition on

un recorded custodial statements being used for impeachment, but statutory changes in 1981 did not contain that prohibition ; Article 38.22, s ection 5 , however, remained unchanged . Article 38.22, s ection 5 allows for admission of a voluntary
statement that b ears on the accused’s credibility. Giron v. State , 695 S.W.2d 292,7 294 (Tex. App.

— Houston [1st Dist.] 1985, no pet.) ; Robinson v. State , 681 S.W.2d 288, 289 (Tex. App.

— San Antonio 1984, pet. ref ’ d).
Section 5 of Article 38.22 contains the following provision : Nothing in this article precludes the admission of a statement made by the accused in open court at his trial,

. . . of a voluntary statement, whether or not the result of custodial interrogatio n, that has a bearing upon the credibility of the accused as a witness

. Article 38.22, s ection 3(a) is not applicable to oral statements, even those made post

- arrest , when used to impeach an accused ’s inconsistent statements. Lykins v.
State , 784 S.W.2d 32, 35

– 36 (Tex. Crim. App. 1989); McCoin v. State , 56 S.W.3d 609, 616

– 17 (Tex. App.

— Texarkana 2001, no pet.); Giron , 695 S.W.2d at 294;
Robinson
, 681 S.W.2d at 289 ; and Clark v. State
, 668 S.W.2d 479, 480 (Tex. App.

— Texarkana 1984, no pet.)

. In Lykin s , the Court of Criminal Appeals stated : Every criminal defendant is privileged to testify in his own defense, or to refuse to do so. But that privilege cannot be construed to include the right to commit perjury. Having voluntarily taken the sta nd, petitioner was under an obligation to speak truthfully and accurately, and the prosecution here did no more than utilize the traditional truth

- testing devices of the adversary process. Had inconsistent statements been made by the accused to some third person, it could hardly be contended that the conflict could not be laid before the jury by way of cross

- examination and impeachment.
Lykins
, 784 S.W.2d at 36

. Appellant took the stand on his own volition, despite the warnings provided by the court and after co nferring with his own counsel. Appellant then denied that he made any statements to any officer
, denied telling Trooper Lewis about a third passenger having a shotgun and pistol
, and denied saying anything to Investigators Bass and Jones

. The State was entitled to, and did, challenge the veracity of those statements.8 The State questioned Appellant about what he said to Trooper Lewis in response to the question about where he was sitting in his pickup and who was
with him

. Appellant den ied that he originally told Trooper Lewis that he was in
the bac kseat but
, later
, volunteered to Trooper Lewis that he was the driver. Appellant also denied telling Trooper Lewis that the third passenger had a shotgun and pistol ; Trooper Lewis testified t hat Appellant volunteered that information a s well as the name of the injured passenger

. On further cross

- examination, the State highlighted Appellant’s conflicting statements about k nowing Palma . Appellant
did not describe Palma to Trooper Lewis
, and he denied describing him to Sergeant
McNeil

. Sergeant McNeil testified that Appellant volunteered the injured passenger’s name and also told him that the third passenger was a young Hispanic who fired at Deputy Escudero and then fled the crash scene

. Appell ant denied saying anything to Investigator s Bass and Jones at the
detention center

. The State called both of them as witnesses after Appellant
testified. The State called them as witnesses to impeach Appellant’s testimony. Investigators Bass and Jones te stified that Appellant said he picked up “E

. P

. ” off
the street . “E

. P

. ” had a shotgun and pistol with him. A fter the y drove around Odessa, E

. P

. directed him to the trailer where E

. P

. exited the pickup with the shotgun, shells, a cell phone, and the keys to the pickup . Appellant said that he
remained in his pickup , heard shots, and drove off after E

. P

. got back into the pickup

. Investigators Bass and Jones also testified that Appellant told them that he was stopped by Deputy Escudero ; that he fled at E

. P

. ’s command ; and that
, after the crash, he t urned himself in

. All of this testimony was in response to Appellant ’s testimony that he said nothing in response to any questions by Investigators Bass and Jones.
The trial court did not abuse it s discretion when it allow ed the cross

examination of Appellant and the office rs’ rebuttal testimony to impeach Appellant9 with his prior inconsistent statements. The State had the right to impeach Appellant’s testimony with his prior inconsistent statements a n d marshal evidence that bore on his credibility

. Because Appellant’s post

- arrest custodial statements
affected his credibility following his inconsistent testimony
, Section 3(a) of
Article 38.22 is not applicable, and we need not address the hearing issue

. W e

ove rrule all three of Appellant’s issues

. IV. This Court’s Ruling We affirm the judgment of the trial court

.

TERRY M c CALL
JUSTICE

July 1 8 , 2013 Do not publish. See T EX

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. P. 47.2(b). Panel consists of: Wright, C.J., McCall, J.
, and Willson, J.