No. PD-0078-15

In the

Court of Criminal Appeals



No. 14-12-00096-CR

In the Court of Appeals for the Fourteenth District of Texas at Houston



No. 1333231

In the 228th District Court of Harris County, Texas



JOSE VASQUEZ

Appellant

V.

THE STATE OF TEXAS

Appellee



STATE’S BRIEF ON DISCRETIONARY REVIEW



DEVON ANDERSON

District Attorney

Harris County, Texas

ERIC KUGLER

Assistant District Attorney

Harris County, Texas

TBC No. 796910

kugler_eric@dao.hctx.net

1201 Franklin, Suite 600

Houston, Texas 77002

Tel.: 713-755-5826

FAX: 713-755-5809

Counsel for Appellee

ORAL ARGUMENT PERMITTED

PD-0078-15

COURT OF CRIMINAL APPEALS

AUSTIN, TEXAS

Transmitted 5/12/2015 1:03:05 PM

Accepted 5/12/2015 2:19:17 PM

ABEL ACOSTA

CLERK
STATEMENT REGARDING ORAL ARGUMENT

This Court has permitted oral argument in this case.

IDENTIFICATION OF THE PARTIES

Counsel for the State:

Devon Anderson  District Attorney of Harris County

Eric Kugler  Assistant District Attorney on appeal

Eric Devlin  Assistant District Attorney at trial

Appellant or criminal defendant:

Jose Vasquez

Counsel for Appellant:

Mark Kratovil  Assistant Public Defender on appeal

James Stafford; Marcy Kurtz  Counsel at trial

Trial Judge:

Hon. Marc Carter  Presiding Judge
2

TABLE OF CONTENTS

STATEMENT REGARDING ORAL ARGUMENT.................................................1

IDENTIFICATION OF THE PARTIES ....................................................................1

INDEX OF AUTHORITIES......................................................................................3

STATEMENT OF THE CASE...................................................................................5

ISSUES PRESENTED...............................................................................................6

A. The lower court’s majority opinion erred in holding that the appellant 

preserved his two-step interrogation complaint for appellate review. ...................6

B. The lower court’s majority opinion erred in holding that the appellant was 

subject to custodial interrogation prior to receiving and waiving his legal rights.6

C. The lower court’s majority opinion erred in holding that a two-step 

interrogation technique was deliberately employed by the police.........................6

D. The lower court’s majority opinion erred in holding that the appellant was 

harmed by the admission of his statement when there was overwhelming 

evidence of the appellant’s guilt independent of his statement to the police.........6

STATEMENT OF FACTS .........................................................................................6

SUMMARY OF THE ARGUMENT.......................................................................11

ARGUMENT...........................................................................................................11

PRAYER ..................................................................................................................25

CERTIFICATE OF SERVICE AND COMPLIANCE.............................................26
3

INDEX OF AUTHORITIES

CASES

Barfield v. State, 

416 S.W.3d 743 (Tex. App.—

Houston [14th Dist.] 2013, no pet.)......................................................................14

Batiste v. State, 

AP-76,600, 2013 WL 2424134 (Tex. Crim. App. June 5, 2013) 

cert. denied, 134 S. Ct. 1000 (U.S. 2014)..................................................... 14, 18

Carmouche v. State, 

10 S.W.3d 323 (Tex. Crim. App. 2000)................................................................19

Carter v. State, 

309 S.W.3d 31 (Tex. Crim. App. 2010)................................................... 14, 21, 22

Manzi v. State, 

88 S.W.3d 240 (Tex. Crim. App. 2002)................................................................20

Maxwell v. State, 

73 S.W.3d 278 (Tex. Crim. App. 2002)................................................................19

Missouri v. Seibert, 

542 U.S. 600 (2004).............................................................................................14

Nguyen v. State, 

292 S.W.3d 671 (Tex. Crim. App. 2009)..............................................................15

Oregon v. Elstad, 

470 U.S. 298 (1985).............................................................................................21

People v. Delatorre, 

B230591, 2012 WL 909659 (Cal. Ct. App. Mar. 19, 2012).................................23

Phillips v. Bramlett, 

288 S.W.3d 876 (Tex. 2009).................................................................................17

Resendez v. State, 

256 S.W.3d 315 (Tex. App.—

Houston [14th Dist.] 2007)...................................................................................16
4

State v. Hughes, 

272 S.W.3d 246 (Mo. Ct. App. 2008) ..................................................................23

Vasquez v. State, 

397 S.W.3d 850 (Tex. App.—

Houston [14th Dist.] March 28, 2013, pet. granted)..............................................5

Vasquez v. State, 

411 S.W.3d 918 (Tex. Crim. App. 2013)................................................................5

Vasquez v. State, 

453 S.W.3d 555 (Tex. App.—

Houston [14th Dist.] 2014, pet. granted)............................................. 5, 14, 19, 22

STATUTES

TEX. CODE CRIM. PROC. art. 38.22 §3 (West 2010) .......................................... 15, 16

RULES

TEX. R. APP. P. 33.1(a)....................................................................................... 17, 18
5

TO THE HONORABLE COURT OF CRIMINAL APPEALS OF TEXAS:

STATEMENT OF THE CASE

The appellant was charged with the capital murder of Suu Nguyen and 

Aleksander Lobos (CR – 2). He pled “not guilty” to the charge, and the case was 

tried to a jury (CR – 159). The jury found the appellant guilty, and the court 

thereafter assessed punishment at life in prison (CR – 159). The appellant 

appealed, and the court of appeals reversed the conviction, finding that the 

appellant’s statement to the police was the result of a two-step interrogation and 

that he was harmed by the admission of that statement. Vasquez v. State, 397 

S.W.3d 850 (Tex. App.—Houston [14th Dist.] March 28, 2013, pet. granted). This 

Court vacated and remanded for the trial court to make factual findings. Vasquez v. 

State, 411 S.W.3d 918 (Tex. Crim. App. 2013). After the trial court made findings 

supporting the admission of the statement, the court of appeals again reversed the 

conviction in a published case over a strong dissent. Vasquez v. State, 453 S.W.3d 

555 (Tex. App.—Houston [14th Dist.] 2014, pet. granted). This Court granted 

review.
6

ISSUES PRESENTED

A. The lower court’s majority opinion erred in holding that the 

appellant preserved his two-step interrogation complaint 

for appellate review.

B. The lower court’s majority opinion erred in holding that the 

appellant was subject to custodial interrogation prior to 

receiving and waiving his legal rights.

C. The lower court’s majority opinion erred in holding that a 

two-step interrogation technique was deliberately employed 

by the police. 

D. The lower court’s majority opinion erred in holding that the 

appellant was harmed by the admission of his statement 

when there was overwhelming evidence of the appellant’s 

guilt independent of his statement to the police. 

STATEMENT OF FACTS

Walter Gallo was a security guard from Miami; but he was working in 

Houston in 2010 (RR. III – 188-189). One of his friends from high school was 

Luis Ollevera (RR. III – 191, 257-258). Another friend was Walter Martinez, 

whom Gallo had met through his boss, Martinez’s mother (RR. III – 192-193). 

The appellant was a very close friend of Martinez (RR. IV – 35). 

On April 1, 2010, Gallo and Ollevera wanted some marijuana, so Gallo 

called Martinez in order to get one pound of “hydro,” a higher-quality type of 

marijuana (RR. III – 193-195, 263-264). Martinez apparently set up a meeting 

with Suu Nguyen and Aleksander Lobos to acquire the marijuana (St. Ex. 150). 
7

Nguyen drove a Toyota Scion, and Lobos owned an Infiniti G35 (RR. IV – 32) (St. 

Ex. 77). 

When Martinez went to meet Nguyen and Lobos, the appellant and some 

other friends accompanied him (St. Ex. 150). There were two cars parked on the 

street at the meeting place on Carvel Lane, Lobos’s Infiniti and Nguyen’s Scion; 

both Nguyen and Lobos were sitting in the Scion (St. Ex. 59-78, 150). The 

appellant was carrying a revolver in his waistband (St. Ex. 150). At some point 

during the transaction, the appellant pulled out his revolver, pushed open the 

Scion’s door, and shot both Nguyen and Lobos (St. Ex. 150) (RR. V – 52). The 

appellant was not sure whether he emptied the gun or not (St. Ex. 150) (RR. V –

52). The appellant or his accomplices then stole the marijuana and the Infiniti G35 

(RR. III – 224, 269-270) (RR. V – 52, 55) (St. Ex. 35-38). 

Lobos sustained two gunshot wounds (St. Ex. 108) (RR. IV – 156). The first 

bullet entered near the base of his skull, caused extensive disruption and 

hemorrhaging to his brain, and exited through the top of his forehead (St. Ex. 108) 

(RR. IV – 58, 157-160). The second bullet entered on the upper right side of his 

chest, perforated his right clavicle, right lung, and left rib, and caused bleeding 

around his heart (St. Ex. 108) (RR. IV – 163-165). One bullet also grazed his right 

hand (St. Ex. 108) (RR. IV – 165). No drugs were detected in his system (St. Ex. 

108). Nguyen suffered two gunshot wounds (St. Ex. 109). One was to the back of 
8

his head; the bullet sent a cone of bone fragments through his brain (St. Ex. 109) 

(RR. IV – 138-142). The gun was fired anywhere from two inches to four feet 

from Nguyen’s head (RR. IV – 142-144). The second bullet went through his right 

shoulder blade, perforated his right lung, fractured his third rib, and was lodged in 

his pericardial sac (St. Ex. 109) (RR. IV – 145-147). There was a small amount of 

cocaine metabolite in Nguyen’s blood, but it would not have been affecting his 

behavior at the time of the murder (RR. IV – 183). 

Joe Christie lived near the intersection of Baneway and Carvel Lane (RR. III 

– 161). When he heard the gunshots, he rolled off his bed, grabbed his AR-15 

assault rifle, and headed outside to provide assistance (RR. III – 162-163). When 

he got outside, he saw a Toyota Scion parked at the end of the block with its hazard 

lights on (RR. III – 164, 301-303). He also saw a man stumbling toward the bayou 

(RR. III – 164). Christie jumped in his pickup truck and drove down to the Scion 

(RR. III – 165). He noticed that the vehicle had been shot up with bullets and that 

there were two dead bodies inside, so he drove back home to call 911 (RR. III –

165-166). On the way back to his house, Christie saw a number of people running 

on the street and trying to hide underneath cars that were parked in driveways (RR. 

III – 167-168). The people ran into Martinez’s house on Carvel Lane (RR. III –

168-169) (St. Ex. 6). Christie saw there was an Infiniti G35 parked in the 

driveway, and the garage door was open (RR. III – 169). 
9

After the shooting, the appellant ran down along the bayou, pulled out the 

gun, and threw it away (St. Ex. 150). He then allegedly took a turn on Boone 

Street, ran to a gas station, and called a friend (St. Ex. 150). Meanwhile, Martinez 

told Gallo to be at his house off of the bayou on Carvel Lane at around 11:00 p.m. 

that evening (RR. III – 199, 262, 264). He also told Gallo to enter the house 

through the back yard (RR. III – 201-202, 265). 

Gallo and Ollevera entered Martinez’s house through the back door as 

instructed, and they saw about ten guys, including the appellant, who appeared to 

be “hyped up,” jumpy, and celebrating (RR. III – 204-205, 211, 219, 261, 266-267, 

305). The appellant stated that he had shot and killed two people for a bag of weed 

(RR. III – 205, 214, 268) (RR. IV – 34-35). The appellant was holding a bag of 

marijuana, and he showed it to Gallo (RR. III – 211, 223, 269). Gallo stated, 

“Y’all murdered these people for that, for that bag?” (RR. III – 225). But Gallo 

also saw the Infiniti G35 inside the garage and learned that the car had been taken 

during the murders (RR. III – 224, 269-270) (St. Ex. 35-38). The appellant did not 

appear to be remorseful over the killings (RR. III – 272). 

Darren Chippi with the Houston Police Department was dispatched to the 

scene after Christie called 911 (RR. III – 300). He saw that Nguyen and Lobos 

were lying dead in the Scion and talked to Christie about what he had seen (RR. III 

– 301-303). There was a lot of blood inside the Scion, and three marijuana bulbs 
10

were in the gearshift console (RR. III – 118, 122). The lead core of a bullet was 

near the gearshift console, and a copper jacket fragment was in the back seat (RR. 

III – 123). Christie pointed out Martinez’s house to the police (RR. III – 170-171). 

Gallo had been inside Martinez’s house for about ten minutes before the 

police arrived (RR. III – 225, 272). He was so paranoid that he jumped the fence 

into the neighbor’s yard and ran away, but he was eventually caught (RR. III –

226-228). Ollevera did the same with the same result (RR. III – 273-275). The 

officers entered Martinez’s house and found a large bag of marijuana on top of the 

living-room sofa (RR. IV – 30). The Infiniti parked in the garage belonged to 

Lobos (RR. IV – 32). A police dog named Rocket was brought to the scene to look 

for the murder weapon (RR. III – 145). He followed a trail down the bayou but 

never found the gun (RR. III – 147-151) (RR. IV – 36-39) (St. Ex. 96-106). 

More than two weeks after the murders, the police tracked the appellant to 

an apartment complex on South Post Oak (RR. IV – 65, 81). They knocked on the 

front door to the apartment, and a woman answered a few minutes later (RR. IV –

68). As the officers entered the apartment, a neighbor yelled that some guys were 

jumping off of the second-story balcony at the back of the apartment (RR. IV –

70). The suspects, including the appellant, started running down Post Oak, but the 

police chased them to a nearby gas station where the appellant was finally detained 

(RR. IV – 70-71). The appellant then gave a videotaped statement to homicide 
11

detective Richard Bolton in which he admitted to shooting both of the victims (St. 

Ex. 150). 

SUMMARY OF THE ARGUMENT

The majority opinion below mistakenly held that the two-step-interrogation 

issue was preserved for appellate review when the trial court thought that the 

appellant was making a different objection. Furthermore, the majority opinion 

failed to defer to the explicit factual findings of the trial court where there was 

evidence in the record that the appellant was not subject to custodial interrogation 

prior to receiving his legal rights. The majority opinion also erred in finding 

deliberate misconduct by the police when there was no support in the record for 

such a conclusion. Finally, the majority opinion erred in holding that the appellant 

was harmed by the admission of his statement to the police when he bragged of his 

crime to numerous friends, showed the fruits of the crime, and ran from the police.

ARGUMENT

The appellant filed a written pre-trial motion to suppress his confession, 

claiming that his statement was taken without a proper warning of his 

constitutional and statutory rights and that he was illegally arrested (CR – 54-55). 
12

The trial court carried the motion with the trial; when Detective Bolton was called 

to testify, the trial court held a hearing outside the presence of the jury at which the 

appellant and Bolton were the only witnesses (RR. IV – 79, 95). The trial court 

apparently believed that the only purpose of the hearing was to address the 

voluntariness of the appellant’s statement (RR. IV – 80-81). 

Detective Bolton testified that the appellant was initially interviewed on 

April 16 and that Bolton was called in to conduct the formal interview that evening 

(RR. IV – 81, 85). Bolton testified that his partner, Investigator Padilla, had 

interviewed the appellant prior to the formal statement and that Bolton had

monitored the interview, although there was conflicting evidence on that issue 

(RR. IV – 86, 87, 89). During the following exchange with the appellant’s 

counsel, Bolton testified that Padilla had given the appellant his legal warnings 

prior to questioning him:

Q. So, there was a time when both individuals were telling you 

they were not involved and didn’t know what you were talking about.

A. The defendants?

Q. Yes.

A. Yes.

Q. That be fair to say?

A. Yes, sir.
13

Q. And when any other officers read them their Miranda 

warnings, you don’t know or if they were read at all ‘cause you 

weren’t there?

A. Yes, I was there. I was in the monitoring room. When they 

entered the room, you know, they read the defendant – and when they 

interviewed Mr. Martinez, they also read him his legal warnings as 

well.

(RR. IV – 87). The trial court found, based on its evaluation of the witnesses’ 

testimony and credibility, that “Bolton credibly testified that Padilla had given the 

defendant his legal warnings prior to questioning him,” and that “any statements 

indicating that Padilla had not given the defendant his legal warnings prior to 

questioning him are not credible.” (CR Supp. – 23). 

Bolton did not start talking to the appellant until 10:00 or 10:30 p.m., and 

did not take the formal videotaped statement until around midnight (RR. IV – 90-

91). He stated that he gave the appellant his legal warnings, and indeed the video 

begins with Bolton stating, “I’m gonna read your rights to you like I did a little 

earlier.” (St. Ex. 150). He testified that the delay in taking the formal interview 

was an effort to build rapport with the appellant (RR. IV – 88). 

The appellant testified during the suppression hearing that the officers never 

read him his legal warnings when they first started talking to him (RR. IV – 97-

98). The appellant further claimed that he repeatedly told the officers that he did 

not want to talk to them (RR. IV – 99). He admitted that he knew his rights 

because he had been placed in a homicide office once before (RR. IV – 99). But 
14

the trial court found that the appellant’s testimony was not credible (CR Supp. –

23-24).

The appellant’s argument on appeal, and the basis for the lower court’s 

reversal, was Missouri v. Seibert, 542 U.S. 600 (2004). See Vasquez, 453 S.W.3d 

at 563 (citing Seibert and Carter v. State, 309 S.W.3d 31, 36–37 (Tex. Crim. App. 

2010)). But the appellant’s two pre-trial motions to suppress made no mention of 

Seibert or “midstream warnings” or a “two-step interrogation.” (CR – 54, 76). See 

Barfield v. State, 416 S.W.3d 743, 749 (Tex. App.—Houston [14th Dist.] 2013, no 

pet.) (citing Batiste v. State, AP-76,600, 2013 WL 2424134, *16 (Tex. Crim. App. 

June 5, 2013) cert. denied, 134 S. Ct. 1000 (U.S. 2014) (“At trial, appellant did not 

make any reference to Seibert, Carter, “two-step questioning,” “question first, 

warn later,” or any other argument that might raise an issue under Seibert.”)). 

It was not until closing argument at the suppression hearing, after the trial 

court had already ruled on the briefed suppression issue, that the appellant first 

mentioned a “two-step interview.” (RR. IV – 105). Even at that point, the 

appellant made no mention of Seibert, and it was clear that the trial court did not 

understand the nature of the objection. Rather, the trial court believed that it was 

merely another aspect of the briefed issue.

The focus of the written suppression motions was the voluntariness of the 

appellant’s statement and the State’s compliance with Article 38.22 of the Code of 
15

Criminal Procedure, which governs the admission of oral statements. See TEX.

CODE CRIM. PROC. art. 38.22 §3 (West 2010). The appellant began his closing 

argument at the suppression hearing by citing Nguyen v. State, 292 S.W.3d 671 

(Tex. Crim. App. 2009), which deals with Article 38.22 but makes no mention of 

Seibert and is not a “midstream warnings” case (RR. IV – 104-105). The trial 

court overruled the appellant’s complaint, and the appellant then claimed that it 

was a “two-step interview.” (RR. IV – 105-106). The trial court responded, 

All right. Only the video statements are admissible. Statements 

that he made that were not videoed are not admissible in the State’s 

case in chief. But any statements that he made outside the video still 

could fall under, you know, 613 impeachment, in the event that he 

should testify. And then he could be impeached on inconsistency 

under 613. Otherwise, they don’t come in. 

All right. So, I guess what I’m doing is I’m granting your 

motion in part. All right. So, any statements that he makes outside the 

video, outside of the Miranda warnings that were stated on the video

do not come in. I’m still leaving it open in the event that it might be 

inconsistent. It could come in for some other purpose.

(RR. IV – 106) (emphasis added). The trial prosecutor then confirmed that he only 

intended to “introduce the officer, circumstances and play the video.” (RR. IV –

107) (emphasis added).

Neither the trial court nor the trial prosecutor understood the nature of the 

appellant’s new Seibert objection, which was being raised for the first time at the 

end of the suppression hearing. The trial court thought that the appellant’s “twostep” objection referred to the fact that some of the interview was videotaped and 
16

some of the interview was not because Article 38.22 requires that the entire 

statement be recorded. See TEX. CODE CRIM. PROC. art. 38.22 §3 (West 2010). 

The trial court’s response focused on the videotape, which is crucial to an 

Article 38.22 Section 3 challenge. See TEX. CODE CRIM. PROC. art. 38.22 §3 (West 

2010) (“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.”). But the presence 

of a videotape is irrelevant in a Seibert analysis. See Carter, 309 S.W.3d at 38 

(“We therefore join numerous state and federal jurisdictions in adopting Justice 

Kennedy’s concurrence in Seibert because it is narrower in scope than the plurality 

opinion and applies only to two-step interrogations involving deliberate police 

misconduct.”).

Furthermore, the trial court believed that it was “granting [the] motion in 

part,” which makes sense in the context of Article 38.22 but makes absolutely no 

sense in the context of a Seibert motion. If there were a violation of Article 38.22, 

then the trial court could suppress that portion of the statement that was 

involuntary or that was not recorded. See, e.g., Resendez v. State, 256 S.W.3d 315, 

327 (Tex. App.—Houston [14th Dist.] 2007) rev’d on other grounds, 306 S.W.3d 

308 (Tex. Crim. App. 2009) (“Because the interrogation of appellant was custodial 
17

from the point after which appellant admitted he shot the complainant, the trial 

court erred in denying appellant’s motion to suppress this part of appellant’s 

statement based on appellant’s failure to receive the required warnings from the 

law enforcement officers or waive his rights.”) (citing TEX. CRIM. PROC. CODE art. 

38.22, § 3). But if there were a Seibert violation, then the entire statement should 

be suppressed. Carter, 309 S.W.3d at 37 (“the interrogation technique used with 

Seibert undermined the goals of Miranda and thus required suppression.”). 

The appellant did nothing to correct the trial court’s mistaken impression 

concerning the nature of the second objection, and the trial prosecutor did not 

recognize it as a veiled Seibert issue. Fortunately, the appellant cannot profit by 

his failure to clarify the issue for the trial court. See TEX. R. APP. P. 33.1(a) (“As a 

prerequisite to presenting a complaint for appellate review, the record must show 

that: (1) the complaint was made to the trial court by a timely request, objection, or 

motion that: (A) stated the grounds for the ruling that the complaining party sought 

from the trial court with sufficient specificity to make the trial court aware of the 

complaint, unless the specific grounds were apparent from the context...”) 

(emphasis added). 

In Phillips v. Bramlett, 288 S.W.3d 876, 882-83 (Tex. 2009), the defense 

counsel objected to closing argument as follows: “Judge, I object to any testimony 

about the propriety of other trials and the verdicts reached by other juries in 
18

Lubbock.” The trial court responded: “This is his argument, and it is not 

testimony.” The defense counsel did not offer any further explanation of his 

objection, and the plaintiffs’ counsel thereafter continued to argue that the jury 

needed to send a message to the doctors of Lubbock without further objection. On 

appeal, the appellant complained about the improper argument. The Texas 

Supreme Court cited Rule 33.1 and agreed that “the asserted error was not 

preserved because the trial court’s response indicated that it did not understand the 

objection, and counsel made no further attempt to clarify the court’s understanding 

or obtain a ruling on his objection.” Phillips, 288 S.W.3d at 883.

In the present case, the appellant never referenced Seibert, Carter, “question 

first, warn later,” or “mid-stream warnings” in either of his written motions to 

suppress or at any time during the proceedings. See Batiste, 2013 WL 2424134, 

*16 (“At trial, appellant did not make any reference to Seibert, Carter, “two-step 

questioning,” “question first, warn later,” or any other argument that might raise an 

issue under Seibert.”). He waited until after the trial court had overruled his 

Article 38.22 argument to finally mention the term “two-step interview.” (RR. IV –

105). But the trial court’s response showed that it mistakenly believed that the 

appellant was still objecting based on Article 38.22. Therefore, the appellant failed 

to object with sufficient specificity to make the trial court aware of the complaint, 

and his sole point of error should have been overruled. See TEX. R. APP. P. 33.1(a); 
19

Phillips, 288 S.W.3d at 883; Vasquez, 453 S.W.3d at 577-580 (Frost, J., dissenting) 

(“Because appellant did not timely raise the ‘question first, warn later’ complaint, 

he failed to preserve error in the trial court, and this court may not reverse the trial 

court’s judgment based on this complaint.”). 

Even if the appellant had properly preserved his appellate complaint, the 

majority opinion nevertheless erred in finding a Seibert violation. As stated 

previously, the trial court made the factual finding that Padilla had given the 

defendant his legal warnings prior to questioning and that any statements to the 

contrary were not credible. (CR. Supp. – 23). The majority opinion erred in failing 

to respect the trial court’s authority to make such findings. Maxwell v. State, 73 

S.W.3d 278, 281 (Tex. Crim. App. 2002) (“At a suppression hearing, the trial 

judge is the sole and exclusive trier of fact and judge of the credibility of the 

witnesses and their testimony.”). 

The court of appeals cited Carmouche v. State, 10 S.W.3d 323 (Tex. Crim. 

App. 2000), in support of its holding that there was “indisputable” evidence to the 

contrary of the trial court’s findings. But the Carmouche court stated that “the 

videotape presents indisputable visual evidence contradicting essential portions of 

Williams’ testimony. In these narrow circumstances, we cannot blind ourselves to 

the videotape evidence simply because Williams’ testimony may, by itself, be read 

to support the Court of Appeals’ holding.” Carmouche, 10 S.W.3d at 332 
20

(emphasis added). In the present case, there was no indisputable visual evidence 

contradicting essential portions of Bolton’s testimony. Therefore, the trial court 

could not have abused its discretion in making the credibility findings based on its 

observations of the witnesses’ credibility and demeanor. See Manzi v. State, 88 

S.W.3d 240, 244 (Tex. Crim. App. 2002) (“Trial courts are the traditional finders 

of fact, and their determinations of historical fact are entitled to deference.”). 

There is no need for this Court to “blind itself” to indisputable visual 

evidence contradicting Bolton’s testimony that Padilla “read the defendant...his 

legal warnings.” (RR. IV – 87). While Bolton’s later testimony may have been 

inconsistent with the cited statement regarding Padilla’s warnings, it was not 

indisputable visual evidence. Rather, it was merely additional testimony subject to 

credibility determinations, and the trial court explicitly found that such testimony 

was not credible (CR Supp – 23). Therefore, Carmouche did not allow the lower 

court to brush aside the trial court’s findings that are based on the trial court’s 

observation of the witnesses’ demeanor and its evaluation of their credibility. 

The majority opinion also failed to respect the trial court’s discretion in 

finding that “any delay in the administration of Miranda warnings was due to an 

effort to build rapport with the defendant rather than to intentionally circumvent 

the protections of Miranda.” (CR. Supp. – 25-26). The central question when 

determining the admissibility of post-Miranda warning confessions made after 
21

Miranda violations is whether the evidence shows that the officer deliberately 

employed a two-step “question first, warn later” interrogation technique to 

circumvent the suspect’s Miranda protections. Carter v. State, 309 S.W.3d 31, 36–

37 (Tex. Crim. App. 2010). Because the question of whether the interrogating 

officer deliberately employed such a technique “will invariably turn on the 

credibility of the officer’s testimony in light of the totality of the circumstances 

surrounding the interrogation,” a factual finding regarding the officer’s credibility 

is entitled to “highly deferential review.” Id., 309 S.W.3d at 40. 

When a two-step questioning tactic has not been deliberately employed, “a 

suspect who has once responded to unwarned yet uncoercive questioning is not 

thereby disabled from waiving his rights and confessing after he has been given the 

requisite Miranda warnings.” Oregon v. Elstad, 470 U.S. 298, 318 (1985). When 

the first statement is unwarned but not coerced, the admissibility of any subsequent 

statement turns on whether it is knowingly and voluntarily made. Id., 470 U.S. at 

309; Carter, 309 S.W.3d at 32. 

In the present case, the only evidence that the appellant was subject to 

custodial interrogation prior to receiving his legal warnings came from the 

appellant’s mouth (RR. IV – 97-98). But the trial court explicitly disbelieved the 

appellant’s testimony at the suppression hearing (CR. Supp. 23-24). See Guzman, 

955 S.W.2d at 89; Ervin, 333 S.W.3d at 213–14 (“Because the trial court found 
22

credible the officers’ testimony that appellant was not in custody ... even if the 

officers erred in their belief that she was not in custody, that error does not amount 

to a deliberate tactic to circumvent Miranda.”). 

The majority opinion concluded, contrary to the trial court’s findings, that 

the fact that the appellant was in custody and gave both statements to officers at a 

police station “indicates that the absence of Miranda warnings before the 

beginning of the interrogation process was not a mistake but rather a conscious 

choice.” Vasquez, 453 S.W.3d at 572. But as this Court has related, “the trial 

judge’s assessment of the interrogating officer’s subjective intent is especially 

important under Justice Kennedy’s approach in Seibert...We therefore adopt the 

position of those federal and state courts that have applied a highly deferential 

review—similar to our Guzman standard—of the question of an officer’s 

subjective ‘deliberateness’ in the ‘question first, warn later’ context.” Carter, 309 

S.W.3d at 40. 

In Seibert, the interrogating officer testified at the suppression hearing that 

he made a “conscious decision” to withhold Miranda warnings, thus resorting to an 

interrogation technique he had been taught: question first, then give the warnings, 

and then repeat the question “until I get the answer that she’s already provided 

once.” Seibert, 542 U.S. at 605-06. That was sufficient to show a deliberate intent 

to circumvent the protections of Miranda. Id. 
23

In the present case, Detective Bolton testified that the delay in taking the 

appellant’s formal interview was an effort to build rapport with the appellant (RR. 

IV – 88). He stated that, “sometimes it’s like hours, you know, just to get – to 

build rapport with the individual. You know, we talk to them about a number of 

things, about family.” (RR. IV – 88). Furthermore, the trial court explicitly found 

that “any delay in the administration of Miranda warnings was due to an effort to 

build rapport with the defendant rather than to intentionally circumvent the 

protections of Miranda.” (CR. Supp. – 25-26). Therefore, any delay in 

administering legal warnings to the appellant in the present case was due to 

permissible rapport-building rather than to the impermissible activity of Seibert.

See, e.g., People v. Delatorre, B230591, 2012 WL 909659, *5 (Cal. Ct. App. Mar. 

19, 2012) (finding no Seibert violation where officer testified that the 

“conversation began, we began talking, a rapport was built, and it wasn’t until 

some facts started to come out that I realized I had forgotten to Miranda.”); State v. 

Hughes, 272 S.W.3d 246, 255 (Mo. Ct. App. 2008) (finding no Seibert violation 

where officers’ pre-waiver questioning was to build a rapport). The trial court’s 

ruling should have been upheld. 

Finally, even if the majority opinion below were correct on the Seibert 

violation, it nevertheless erred in determining that the appellant was harmed by the 

admission of his statement. The evidence supporting the appellant’s guilt, 
24

independent of his recorded statement, was overwhelming. Both Gallo and 

Ollevera testified that the appellant was at Martinez’s house shortly after the 

murder, and the appellant was bragging about having shot and killed two people 

for a bag of weed (RR. III – 204-205, 211, 214, 219, 261, 266-268, 305) (RR. IV –

34-35). The appellant was holding a bag of marijuana; he showed it to Gallo and 

did not appear to be remorseful over the murders (RR. III – 211, 223, 269, 272). 

Furthermore, the appellant fled from the police who were investigating these 

murders (RR. IV – 70-71). Finally, even the appellant’s own witness admitted that 

the appellant had taken the marijuana from Nguyen and Lobos (RR. V – 49-50). 

Thus, it is unlikely that the admission of the appellant’s videotaped statement had 

more than a slight effect on the jury’s verdict, and the majority opinion below erred 

in holding otherwise.
25

PRAYER 

It is respectfully requested that the opinion of the court of appeals should be 

reversed and the conviction affirmed. 

DEVON ANDERSON

District Attorney

Harris County, Texas

/s/ Eric Kugler

ERIC KUGLER

Assistant District Attorney

Harris County, Texas

1201 Franklin, Suite 600

Houston, Texas 77002

(713) 755-5826

kugler_eric@dao.hctx.net

TBC No. 796910
26

CERTIFICATE OF SERVICE AND COMPLIANCE

This is to certify that: (a) the word count function of the computer program 

used to prepare this document reports that there are 5,581 words in it; and (b) a 

copy of the foregoing instrument will be served by efile.txcourts.gov to:

Mark Kratovil

 Assistant Public Defender

Harris County, Texas

1201 Franklin, 13th Floor

Houston, Texas 77002

Mark.kratovil@pdo.hctx.net

Lisa McMinn

State Prosecuting Attorney

P.O. Box 13046

Austin, Texas 78711

Lisa.McMinn@SPA.texas.gov

/s/ Eric Kugler

ERIC KUGLER

Assistant District Attorney

Harris County, Texas

1201 Franklin, Suite 600

Houston, Texas 77002

(713) 755-5826

TBC No. 796910

Date: May 12, 2015