IN THE COURT OF CRIMINAL APPEALS

 OF TEXAS

NOs. PD-0253-21, PD-0254-21, PD-0255-21

THE STATE OF TEXAS

v.

KEVIN CASTANEDANIETO, Appellee

ON STATE=S PETITION FOR DISCRETIONARY REVIEW

FROM THE FIFTH COURT OF APPEALS

DALLAS COUNTY

KEEL, J., delivered the opinion of a unanimous Court.

O P I N I O N

Appellee was arrested for aggravated robbery in the early morning hours of 

August 10, 2017. He gave two confessions to two detectives in separate interviews over 

the next 48 hours. The State sought to introduce only the second confession, but the trial 

court granted Appellee’s motion to suppress it. On appeal to this Court previously we 

held that the court of appeals erred in resolving the appeal on a coercion theory because 

the State did not have an opportunity to develop a complete factual record about whether 
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coercion occurred in the first interview. State v. Castanedanieto, 607 S.W.3d 315, 330 

(Tex. Crim. App. 2020) (Castanedanieto II); State v. Castanedanieto, 631 S.W.3d 131, 

137 (Tex. App.—Dallas 2019) (Castanedanieto I). We remanded to the court of appeals 

to address the theories of law presented to the trial court. But the court of appeals again 

decided the case using a coercion theory. State v. Castanedanieto, Nos. 05-18-00870-

CR, 05-18-00871-CR, 05-18-00872, 2021 WL 972901, at *7 (Tex. App.—Dallas March 

16, 2021) (mem. op., not designated for publication) (Castanedanieto III). 

We granted review to consider whether the court of appeals defied the ordinarily 

applicable rules for examining a waiver of a defendant’s rights by applying the “cat out 

of the bag” theory to a claim of unknowing waiver. The State asks us to clarify the 

applicability of the “cat out of the bag” doctrine while Appellee asks us to address the 

merits of his claims. We will remand to the court of appeals again to address the 

arguments Appellee made in the trial court, namely, whether Appellee understood his 

rights when he gave his second confession and whether his Sixth Amendment right to 

counsel was violated by the interrogation he underwent after invoking his right to counsel 

at his arraignment. See Sotelo v. State, 913 S.W.2d 507, 510 (Tex. Crim. App. 1995) 

(“[T]he proper disposition of a petition for discretionary review that correctly asserts that 

the lower court has failed to consider a complaint as to the propriety of its ultimate 

disposition is for this Court, in the exercise of its supervisory authority, to remand the 

cause to the court of appeals to reach a ‘decision’ on that question in the first instance.”). 

I. Castanedanieto II
Castanedanieto–Page 3

We previously held that neither Appellee’s nor the State’s theories presented at the 

suppression hearing provided the State an adequate opportunity to develop a complete 

factual record on the coercion theory. Castanedanieto II, 607 S.W.3d at 328–330. The 

theory depended on a finding of coercion at the first interview, which had no relevance to 

Appellee’s Sixth Amendment claim because arraignment was the key factor for that 

claim, and the first interview occurred before arraignment. Id. at 327–28. So the Sixth 

Amendment claim did not put the State on notice to develop facts relevant to the coercion 

theory. Id. 

We then decided that Appellee’s argument that his lack of knowledge of his rights 

carried over to the second interview did not involve a “traditional ‘taint’ analysis.” Id. at 

328–29. It would have been different “if Appellee’s claim had been that [the first 

detective] coerced his participation in the first interview.” Id. at 329. In that case the 

State would have had an incentive to show that no coercion attended the first interview, 

and if it did, and any taint was attenuated by circumstances that intervened between the 

first and second interviews. Id.

We also rejected Appellee’s contention that the State raised the coercion theory 

through the second detective’s testimony that he did not threaten Appellee and his 

statements appeared to be voluntary. Id. at 329–30. Since these types of questions are 

commonly elicited by prosecutors at suppression hearings this was not enough to create 

defense theories of law applicable to the case. Id. at 330. The defense did not challenge 

the accuracy of that testimony, so the State had no reason to believe that the detective’s 
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uncontroverted testimony of “no coercion” would implicate a coercion theory for 

suppression. Id. 

We remanded the case to the court of appeals to address the theories of law that 

Appellee presented to the trial court. Id. 

II. Castanedanieto III

On remand the court of appeals determined that under the totality of the 

circumstances Appellee’s waiver of his rights in the first interview was not made 

knowingly and intelligently. Castanedanieto III, 2021 WL 972901, at *6. Then it used 

a taint analysis to conclude that the trial court could have made a reasonable inference 

that the second interview involved an effort to undermine Appellee’s rights, citing a case 

describing the two-step interrogation technique. Id. (citing Carter v. State, 309 S.W.3d 

31, 41 (Tex. Crim. App. 2010). It stated that because the second detective reminded 

Appellee of his first interrogation and confession and suggested Appellee may have more 

to tell this time around, the trial court had “sufficient basis to conclude [Appellee’s] 

second confession was motivated, at least in part, by so-called ‘cat out of the bag’ 

thinking.” Id. at *7. The court of appeals concluded that nothing in the second 

interview video indisputably demonstrated that Appellee was not motivated in part by 

“cat out of the bag” thinking and affirmed the grant of suppression by the trial court. Id.

III. Analysis

Two questions must be answered to determine whether a suspect has knowingly, 

intelligently, and voluntarily waived his Miranda rights: (1) was the relinquishment of 
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the rights voluntary “in the sense that it was the product of a free and deliberate choice 

rather than intimidation, coercion, or deception[,]” and (2) was the waiver made with 

“full awareness of both the nature of the right being abandoned and the consequences of 

the decision to abandon it.” Joseph v. State, 309 S.W.3d 20, 25 (Tex. Crim. App. 2010)

(quoting Moran v. Burbine, 475 U.S. 412, 421 (1986)). Courts focus on conduct that 

informs the suspect’s understanding and comprehension or lack thereof when analyzing 

whether a waiver was made with full awareness of the nature of the rights and the 

consequences of abandoning them. See id. at 27 (analyzing relevant facts in determining 

whether the waiver was made with full awareness). Evidence of intimidation, coercion, 

or psychological pressure properly fall within the voluntariness category to the extent that 

it shows whether the suspect understood his rights and the consequences of abandoning 

them. See id. at 26 (stating that there was no evidence of intimidation or coercion and no 

psychological pressure applied when the appellant responded to some questions with “no 

comment” when addressing whether the wavier was given voluntarily and addressing 

awareness separately). 

A court may properly conclude that a suspect has waived his Miranda rights only 

if the “totality of the circumstances reveal both an uncoerced choice and the requisite 

level of comprehension[.]” Moran, 475 U.S. at 421 (internal quotations and citations 

omitted). But unless a defendant “presents evidence that raises a voluntariness 

question[,]” the prosecution is not put to its burden of controverting the involuntariness of 

a statement. State v. Terrazas, 4 S.W.3d 720, 725 (Tex. Crim. App. 1999). 
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Appellee argued in the trial court that he did not understand the Miranda and 

Article 38.22 warnings and that his lack of understanding carried over to the second 

interview. The trial court implicitly found that he did not understand the warnings 

relative to the second statement. The question for the court of appeals was whether that 

finding was supported by the record. See State v. Lujan, 634 S.W.3d 862, 866 (Tex. 

Crim. App. 2021) (noting that trial court’s finding that Lujan was misled to believe that 

her statement would not be used against her would be upheld if supported by the 

evidence).

The court of appeals cited circumstances relevant to the issue of Appellee’s 

knowing waiver of his rights, like his education and background and his responses to the 

warnings he was given. See Fare v. Michael C., 442 U.S. 707, 725 (1979) (holding that 

“juvenile’s age, experience, education, background, and intelligence” and his “capacity to 

understand the warnings” were relevant considerations in determining whether he 

knowingly waived them). But it did not apply those circumstances to decide whether 

they supported the trial court’s implicit finding that Appellee did not knowingly waive 

his rights. It applied them instead to issues that were not raised in the trial court, 

namely, cat-out-of-the-bag and two-step-interrogation technique. Castanedanieto III, 

2021 WL 972901, at *6–7.

IV. Conclusion 

The court of appeals erred when it failed to address whether Appellee understood 

his Miranda and Article 38.22 rights. We reverse its judgment and remand the case to it
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for further proceedings consistent with this opinion. 

Delivered: April 20, 2022

Do Not Publish