NUMBER 13-08-00731-CR

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI - EDINBURG

 

ABRAHAM MAR, Appellant,

v.

THE STATE OF TEXAS, Appellee.

 

On appeal from the 357th District Court

of Cameron County, Texas.

 

MEMORANDUM OPINION

Before Justices Rodriguez, Benavides, and Vela

Memorandum Opinion by Justice Benavides

Appellant, Abraham Mar, appeals his conviction for attempted capital murder for 

shooting a police officer.1 See TEX. PENAL CODE ANN. §§ 19.03 (Vernon Supp. 2009), 

 

1 Mar was also convicted of evading arrest and was sentenced to two years‘ imprisonment in a 

state jail facility and fined $10,000. See TEX. PENAL CODE ANN. § 38.04 (Vernon Supp. 2009). He does 

not challenge that conviction in this appeal.
2

15.01 (Vernon 2003). Mar filed a pre-trial motion to suppress a confession he gave to 

the police, which the trial court denied. Mar then pleaded guilty. The jury assessed 

his punishment at ninety-nine years‘ imprisonment in the Texas Department of Criminal 

Justice‘s Institutional Division and a fine of $10,000. 

By three issues, Mar challenges the trial court‘s ruling on the pre-trial motion to 

suppress, arguing that: (1) the trial court should have suppressed his confession 

because he did not understand his rights and because the police officers continued 

interrogating him after he validly invoked his right to counsel; (2) his confession was 

involuntary because the police made promises to him to induce the confession; and (3) 

the trial court failed to make findings as to the voluntariness of his confession. We 

affirm.

I. BACKGROUND

On June 25, 2008, a Cameron County grand jury indicted Mar for attempted 

capital murder, alleging that Mar shot Carlos Diaz, a Harlingen Police Officer. Mar was 

apprehended in Matamoros, Mexico and was delivered to law enforcement authorities in 

the United States. Mar was then interrogated by Texas Ranger Rolando Castañeda 

and Sergeant Miriam Anderson of the Harlingen Police Department. The interrogation 

was videotaped.

Mar filed a motion to suppress the resulting confession. Mar alleged that his 

confession was obtained in violation of Texas Code of Criminal Procedure article 38.23; 

the Fourth, Fifth, Sixth, and Fourteenth Amendments to the United States Constitution; 

and Article I, Section 9 of the Texas Constitution. See U.S. CONST. amends. IV, V, VI, 

XIV; TEX. CONST. art. I, §§ 9, 10, 19; TEX. CODE CRIM. PROC. ANN. art. 38.22 (Vernon 
3

2005). On November 3, 2008, the trial court held a hearing on Mar‘s motion.

During the hearing, the trial court indicated on the record that it had reviewed the 

videotaped confession. The video is over an hour long. At the beginning of the 

interview, Sergeant Anderson referred to Mar as ―mijo‖ and states to Mar, ―You know 

me.‖ She read Mar his Miranda rights, asked him if he understood them, and had him 

sign and initial a waiver of rights. Mar indicated that he had no questions. 

Initially, Mar told the officers that he had children. Sergeant Anderson reminded 

Mar that she had known him for a long time and knew his mother, and she repeatedly 

referred to him as ―mijo‖ throughout the video. Mar denied knowledge of the shooting. 

Sergeant Anderson stated that they ―were not here to find out what happened,‖ because 

she claimed that they already knew what happened. She told Mar that she was there to 

get his side of the story, to find out why ―it happened,‖ and to help Mar help himself. 

Mar denied knowing what she was talking about and claimed he had been in Matamoros, 

Mexico.

Ranger Castañeda then told Mar that the police knew he was the shooter 

because there was a video from the crime scene. Mar asked if the officers would turn 

off the video of the interview and stated he would talk to them off camera, but the officers 

refused. Ranger Castañeda then said: 

By you telling us what happened it‘s gonna help your case because you 

wanna see your children . . . . Instead of getting life in prison, you 

might—you‘ll get less. I‘m not promising anything, number one, I‘m not 

promising anything. But your cooperation means a lot to the District 

Attorney‘s office. And me personally, I will contact the District Attorney‘s 

office and tell them that you cooperated with us. And the only way that I 

can tell him that you cooperated—cooperated with us, is he has to see 

what you said. We‘re trying to help you Abraham. . . .

Sergeant Anderson explained again that the officers wanted to get Mar‘s side of 
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the story. Mar asked Sergeant Anderson to explain the allegations to him. Sergeant 

Anderson told Mar that a police car camera captured Mar exiting his vehicle and 

grabbing a weapon. She then said that the video showed Mar firing the weapon at the 

police car, injuring a police officer. 

Ranger Castañeda told Mar that he was being charged with attempted capital 

murder, which carried a term of imprisonment of five to ninety-nine years. Mar then 

asked what he could do to avoid getting ninety-nine years. Ranger Castañeda 

answered: ―Where it will help you not get ninety-nine years—The District Attorney‘s 

office, as a matter of fact, they already called me. They want to know if you cooperated. 

Your cooperation—first of all, I can‘t promise you anything, you gotta make that perfectly 

clear.‖ Mar replied, ―Yeah, I know.‖ Ranger Castañeda continued: 

But your cooperation will help you reduce that sentence to the point that 

you might see your little girl and your little boy when they‘re teenagers or 

twenty years old or something. But at least you don‘t have to worry about 

seeing them whey they‘re fifty, sixty, seventy, eighty years old. . . . If I pick 

up the phone and tell the District Attorney‘s office and that Mar did not 

cooperate, what do you think is going to happen? Do you think—we‘re 

going to show that videotape to the jury. . . .

Mar continued to deny that he was the shooter. He claimed that he had been 

arrested on several occasions, but he stated that no charges were ever brought. He 

opined that he was always being blamed for things he did not do. Mar referred to 

himself as a ―victim.‖ He asked why, if the police had enough evidence to convict him, 

did they need a confession? Ranger Castañeda then asked if Mar wanted to spend 

ninety-nine years in prison and stated that he did not want Mar to do that much time. 

Ranger Castañeda stated that if Mar went to prison, his children would grow up being 

raised by their mother as a single parent. He stated he was just trying to keep Mar from 
5

spending ninety-nine years in prison. 

Again, Mar explained that he was always a target of police investigations that 

were unfounded. He gave detailed examples of times he believed he was the victim of 

police harassment. Ranger Castañeda then said that he felt disrespected because the 

videotape showed Mar committing the crime, but he would not admit to it. He stated 

that the officers did not need to talk to Mar—they had enough evidence. But he 

explained that at trial, when he was asked if Mar cooperated, he would tell the jury that 

he gave Mar the chance to tell his side of the story, and Mar lied instead of cooperating.

Later in the video, after more discussion by Mar of how he had been harassed by 

the police, the following exchange occurred:

Ranger Castañeda: The bottom line. Look, I understand what 

you‘re saying, but the bottom line is, there‘s a 

good possibility you could go to prison for the 

rest of your life if you don‘t 

cooperate. . . . Abraham, you are not listening 

at all. You are not listening. Listen to me. 

Listen to me. Cut the crap about being the 

victim. You shot that officer. We got you on 

video. You shot that weapon. We got your 

license plate on the car on the video. We got 

the store video doing the same—showing the 

same thing. So cut the crap about being a 

victim. You‘re not a victim on this one. You 

might have been a victim of the other ones. 

But on this one where I‘m involved, she‘s 

involved, you are a—you‘re not a victim. You 

shot that officer. We wanna know why you 

shot the officer. And if you don‘t wanna tell us, 

we‘ll make sure we tell the District Attorney to 

go ahead and go all the way for ninety-nine 

years. Because I guarantee you, you wanna 

get your high-powered attorney, get him. All 

we have to do is show that videotape to the 

jury, and you are gone. You‘ll never see your 

children again.
6

Mar: I don‘t even have money to get an attorney.

Sergeant Anderson: Be smart.

Ranger Castañeda: You will never see your children again if you 

keep on saying that you‘re a victim. You might 

have been a victim on the other ones. I don‘t 

know. And it sounds like you might have 

been. But the one case that I‘m concerned 

about is this one. You were not the victim. 

You pulled that trigger and shot that officer. 

You‘re lucky that officer isn‘t dead because if 

that officer had been dead, and with that video, 

in eight to ten years you‘d be executed by lethal 

injection in the state of Texas. And I‘ve seen 

people being executed before, and it ain‘t 

pretty. So here is your opportunity to see 

your—at least see your children when you‘re 

old enough to—that you‘re not that old that you 

can still walk and still play or see your 

grandchildren. You make that decision. But 

you have got to understand something right 

now. Look at me. You have got to 

understand something now. We don‘t need 

you to tell us anything. If you wanna go to 

prison for ninety-nine years, go. We‘re gonna 

get you because that video—not because she 

said it or I said it. That video says everything.

 

Mar began talking about how he grew up in a bad neighborhood and explained 

that he was abused as a child. He again claimed that he had been harassed by the 

police and repeatedly accused of crimes, but the charges were later dropped. Sergeant 

Anderson then stated again that this was Mar‘s ―chance‖ to do something for his children 

and to ―see them grow up.‖ 

Mar then asked to talk to the prosecutor to find out what amount of prison time he 

was facing and said he would ―talk‖ after that. He stated he wanted to talk to the 

prosecutor to get an assurance about what would happen to him. Sergeant Anderson 

asked how Mar felt, and he stated he felt ―dead.‖ He stated again that he wanted to talk 
7

to the district attorney or the judge, and he did not ―want to spend any more time with the 

questioning,‖ and the games and reverse psychology. Sergeant Anderson said that 

they were not playing mental games but were trying to give him a chance to tell what 

happened. Mar then stated he understood the police believed they had evidence 

against him, but he wanted to hear what the district attorney had to say. When asked 

what he would say to the prosecutor, Mar said he would ―lace him up on what 

happened.‖ The following exchange then occurred: 

Ranger Castañeda: If I call the DA right now and say, Mr. DA, 

Abraham Mar says he‘ll be up front with us, tell 

us exactly what happened, but he needs to 

know how much time he‘s looking at. And 

you‘ll talk with us.

Mar: Fuck yes. . . . And you‘re making a promise on 

that thing because . . . the DA‘s gonna say how 

much time I‘m gonna get on that, and you know 

that‘s against the law to make a promise.

Ranger Castañeda: No. I can‘t make a promise. The DA can 

make a promise.

Mar: What the DA decides to do, I guess I‘ll talk 

whatever. I‘ll say I‘m not guilty or I‘m guilty. I 

just wanna talk to the DA.

Ranger Castañeda: Ok. If we don‘t bring the DA over here, you‘re 

not gonna talk to us. That‘s fine with 

me. . . . That‘s fine with me. You‘ll go to 

prison for ninety-nine years. So don‘t be trying 

to negotiate with me. Because I don‘t 

negotiate. Either you‘re going to go to prison 

for ninety-nine years, or you have the 

opportunity to go to prison for twenty or thirty 

years. Twenty-five, thirty, forty years. With 

good time you could be out in about twenty-five 

years. Your children will be twenty-five years 

old. . . . And I could call the District Attorney‘s 

office, and he‘s not gonna say well, uh, if he 

talks to us, I‘ll offer him twenty-five years, thirty 
8

years. 

Sergeant Anderson: It doesn‘t work like that mijo.

Ranger Castañeda: It doesn‘t work that way. This is not law and 

order.

Mar: Well I don‘t know. You‘re making it seem like 

law and order.

Ranger Castañeda: This is not law and order. . . . The good thing 

about this case, well the great thing about this 

case, is you‘re busted. You‘re busted bad. I 

never had a case where—you have been 

busted with a video camera. . . . If you tell us I 

shot that car and the reason I shot that car is 

because of this, I can almost tell you you‘re not 

gonna serve ninety-nine years in prison.

Mar: But I‘m gonna serve eighty-seven.

Ranger Castañeda: You‘re not gonna serve eighty-seven years in 

prison, because I‘m gonna go, as a Texas 

Ranger, and she‘s gonna go as a Harlingen 

police sergeant, and say Mar cooperated with 

us. He deserves a lower sentence than 

ninety-nine years. But, we‘re not gonna 

negotiate.

Mar then again referred to his prior arrests and alleged police harassment, and he 

asked Sergeant Anderson to include his arrest history in his file. The following 

exchange occurred about whether Mar could speak to an attorney:

Mar: Alright, is there an attorney around right now?

Sergeant Anderson: Not in here.

Mar: Well could I just talk to an attorney real quick?

Sergeant Anderson: You want to talk to an attorney?

 

Mar: Real quick, just real quick, and boom, after that, 

vamonos. I‘ll tell ya‘ll everything ya‘lll wanna 

know. I just wanna talk to an attorney real 
9

quick and after that I‘ll tell ya‘ll whatever you 

wanna know.

At this point, Sergeant Anderson reached under the table and began packing up 

her things. She muttered, ―Ay mijo. Ok.‖ Ranger Castañeda immediately said, ―You 

do have a right to an attorney; You‘re gonna get that right to an attorney.‖ Mar 

interrupted Ranger Castañeda and began talking again, crying as he spoke. Mar began 

explaining his background and told the officers that he had psychiatric problems. He 

said he felt like the police had been bullying him, and he asked Ranger Castañeda how it 

would make him feel. Ranger Castañeda stated it would make him angry, and asked, 

―And then what happened?‖ Mar claimed that he ―blacked out.‖ Mar stated that he 

was ―going to do the right thing,‖ and he got on his knees in front of Sergeant Anderson. 

He said he had already lost his pride, and he stated that the police officer, although he 

did not identify who, had arrested him on prior occasions. Mar stated he knew he was 

going to prison, and Ranger Castañeda asked if he wanted to go to prison for ninety-nine 

years, and stated that Mar‘s cooperation would help him. Sergeant Anderson stated 

that Mar was ―doing the right thing.‖ Mar indicated that he merely wanted a lesser 

sentence. 

Mar stated he believed the officer had pulled him over on purpose and was trying 

to harass him. He said he blacked out, and he didn‘t know what happened. Ranger 

Castañeda stated that a black out was not going to help Mar. He told Mar that this case 

was different than others because there was a videotape, which would be shown to the 

jury. Ranger Castañeda then stated again, ―The DA‘s gonna get life. Do you wanna 

get life? Or do you wanna get twenty-five, thirty years? We‘re trying to help you.‖ 

Mar then asked to use the phone. Ranger Castañeda stated that if Mar told them what 
10

happened, he could use the phone and have a cigarette. Mar then confessed to 

shooting the police officer.

At the hearing on the motion to suppress, the defense called Ranger Castañeda 

as its first witness. Ranger Castañeda testified that he interviewed Mar on June 26, 

2008. The defense asked whether Ranger Castañeda informed Mar that his 

cooperation would help him get a certain punishment in the case, and the following 

exchange occurred:

[Defense Counsel]: Okay. Now, as the interview progressed, did 

you inform Mr. Mar that his cooperation in the 

interview would help him get a certain 

punishment in his particular case in which you 

were questioning him?

[Ranger Castañeda]: What I did advise him that—I‘m not in the 

position to negotiate or to promise him 

anything. I said that his cooperation could or 

possibly help him in the future, but I am not in 

the position to be making any deals with him. 

I‘m not an attorney.

[Defense Counsel]: Isn‘t it true that you told him that you were going 

to specifically speak to the District Attorney‘s 

Office and that he would not get 99 years, that 

he would get less; isn‘t that true?

[Ranger Castañeda]: I—I did advise him that, but I was utilizing 

deception as an investigative tool at that point; 

and yes, I did tell him that.

[Defense Counsel]: And, in fact, that—you told him that several 

times; isn‘t that correct?

[Ranger Castañeda]: Probably.

. . . .

[Defense Counsel]: Ranger Castañeda, the reason—the reason 

behind your telling Abraham Mar that he would 

get a lesser sentence was, the purpose of that 
11

was to elicit further testimony; isn‘t that true?

[Ranger Castañeda]: If you viewed the whole tape, I talked to him 

about that I‘m not in the position to be 

negotiating with him, that I didn‘t need his 

testimony, just on the videotape of the shooting 

and other evidence, that I didn‘t need him; but I 

was giving him an opportunity to hear his side 

of the story.

[Defense Counsel]: Well, Ranger Castañeda, I know that here you 

assert that you didn‘t need him and that you 

had a video and what not, but your actions, 

your words to him were such that you were 

telling him that he would get a lesser sentence, 

which flies in the face of your assertion now that 

you weren‘t negotiating with him; isn‘t that true?

[Ranger Castañeda]: I wasn‘t negotiating with him. I was not.

[Defense Counsel]: Then explain to this Court why you were 

consistent and persistent on telling him that he 

would receive a lesser sentence.

[Ranger Castañeda]: Like I told you before, I was using deception as 

an investigative tool during my interview. I‘m 

not in a position to be negotiating with the 

district attorney. I‘m not an attorney.

[Defense Counsel]: Well, you did make those assertions; didn‘t 

you?

[Ranger Castañeda]: And if you remember in the beginning of the 

tape I said, ―I cannot promise you anything. I 

could make the recommendations to the District 

Attorney‘s Office.‖

[Defense Counsel]: But isn‘t it true, Ranger Castañeda, that 

everything else that you directed at Mr. 

Abraham Mar was consistent with you 

portraying yourself of [sic] someone of 

authority, a Texas ranger, someone of authority 

that was going to contact the District Attorney‘s 

Office personally; isn‘t that correct? Weren‘t 

those your words?
12

[Ranger Castañeda]: Yeah.

. . . .

[Defense Counsel]: But you don‘t dispute the fact that you told him 

on several occasions that he would be 

receiving a lesser sentence because you were 

going to use your position as a Texas ranger to 

speak to the D.A.‘s Office; isn‘t that true?

[Ranger Castañeda]: I already said that, yes.

On cross-examination, Ranger Castañeda denied promising Mar anything during the 

interview and reiterated that he told Mar that he was not in a position to negotiate with 

the District Attorney‘s Office. 

The defense also questioned Ranger Castañeda about whether Mar invoked his 

right to counsel during the interview:

[Defense Counsel]: In fact, at one point Mr. Abraham Mar advises 

you or informs you that, along the lines that, 

―Do I have a right to talk to an attorney? I‘d 

like to talk to an attorney.‖ Isn‘t that true?

[Ranger Castañeda]: That particular area you‘re talking about, he 

advises that he wants to talk to an attorney and 

that then he will speak to us. And I told him, 

―Yes, you have a right to an attorney. We‘re 

going to get you an attorney.‖ And I 

continued. He waited a few seconds and 

continued and stated words to the effect like, 

―puro chile. I‘m going to tell you the way it is.‖

[Defense Counsel]: Well, isn‘t it true that at the point where he 

requested to speak to an attorney, the 

reaction—his response was more to a [sic] 

reaction from, as you know, because were you 

there [sic]—

[Ranger Castañeda]: Uh-huh.

. . . .
13

[Defense Counsel]: After he made his unequivocal request for an 

attorney, wasn‘t your response one which 

would cause an individual to continue the line of 

questioning?

[Ranger Castañeda]: No. I told him that if he wanted an attorney I 

was going to get him an attorney. We started 

getting our paperwork, getting ready to leave 

when he says that he was going to continue 

talking.

. . . .

[Defense Counsel]: And just to finalize, Ranger Castañeda, you 

don‘t dispute that Abraham Mar unequivocally 

requested guidance and to speak to an 

attorney?

[Ranger Castañeda]: I guess about—excuse me—about an hour into 

the interview he says that he wanted to speak 

to an attorney. And if you listen to the 

videotape, I said, ―You want an attorney. I‘m 

going to get you an attorney.‖

[Defense Counsel]: And is it your testimony that after that request 

was made, and you, you know, and you made 

the statement, you said that you did not make 

any gesture, any remark that would lead a 

person to continue an interrogation or give a 

statement?

[Ranger Castañeda]: Counselor, once he asked for an attorney, as 

far as I was concerned, that interview was over.

On cross-examination, Ranger Castañeda testified that after Mar requested an attorney, 

Ranger Castañeda did not ―ask him another question to elicit a response regarding the 

actual event‖ and that Mar voluntarily initiated the conversation.

The defense then called Sergeant Anderson to testify and questioned her about 

the alleged promises made to Mar. Sergeant Anderson could not recall the exact 

statements made by Ranger Castañeda and referred defense counsel to the videotape. 
14

The defense then questioned Sergeant Anderson about Mar‘s request for counsel:

[Defense Counsel]: During the course of the interview, do you recall 

Mr. Mar making it clear to you and Ranger 

Castañeda that he wanted to consult with an 

attorney?

[Sergeant Anderson]: I believe he made that comment.

[Defense Counsel]: Okay. And that was not honored, was it?

[Sergeant Anderson]: I‘m sorry?

[Defense Counsel]: That request was not honored on the part of 

you and Mr. Castañeda?

[Sergeant Anderson]: I remember getting ready to either clean up or 

walk out when he started talking again.

[Defense Counsel]: Do you recall making a sigh and saying, ―Ay, 

Mijo,‖ like, ―Oh, son.‖ Do you remember doing 

that immediately after he said, ―I want to speak 

to an attorney?‖

[Sergeant Anderson]: I probably did. I don‘t know, sir. It‘s on the 

videotape.

[Defense Counsel]: What was the purpose of you saying, ―Oh, son,‖ 

like implying he was making a mistake?

[Sergeant Anderson]: Oh, I didn‘t say that.

[Defense Counsel]: Well, that‘s—what did you mean by saying, 

―Oh, son,‖ like—

[Sergeant Anderson]: I tend to use that word a lot. I‘ve worked with 

a lot of children and I tend to use that word. 

So I probably did say it.

. . . .

[Defense Counsel]: Once he said, ―I want an attorney,‖ everything 

stopped. That means you don‘t talk to him; 

you don‘t suggest to him anything. Do you 

agree with me on that?
15

[Sergeant Anderson]: Oh, I wasn‘t asking him or telling him anything.

[Defense Counsel]: Well, then why did you say, ―Ay, Mijo?‖

[Sergeant Anderson]: It‘s a form of expression. Like I said, I work 

with a lot of children.

[Defense Counsel]: Yeah, but you agree with me that that was a 

direct comment made to my client with regard 

to his decision not to continue talking to you.

[Sergeant Anderson]: No, sir. I would have to disagree. I believe it 

was just my expression.

[Defense Counsel]: And really, what was the purpose of that 

expression?

[Sergeant Anderson]: I do not—I do that a lot. Like I said, I work with 

a lot of children[,] and I have a tendency to be, I 

guess, motherly.

At the end of the hearing, the trial court denied the motion to suppress, stating on 

the record that:

The Court, as it has previously indicated, the Court had reviewed the 

videotape so it could have a good context of whatever the testimony was 

given. The Court viewed the entire videotape. Based on the Court‘s 

viewing of the tape, the testimony given, the Court will deny the motion to 

suppress.

The trial court did not issue a written ruling on the motion or file findings of fact and 

conclusions of law.

Mar subsequently pleaded guilty to the charges of attempted capital murder and 

evading arrest. Punishment was tried to a jury, who assessed a sentence of 

ninety-nine years‘ imprisonment on the attempted capital murder conviction. The trial 

court certified Mar‘s right to appeal the pre-trial ruling on his motion to suppress. This 

appeal ensued.
16

II. FINDINGS OF FACT AND CONCLUSIONS OF LAW

By his third issue, Mar argues that the trial court failed to make findings as to the 

voluntariness of his confession, as required by ―constitutional and statutory law.‖ Thus, 

Mar asks this Court to remand to the trial court for the entry of findings. 

Mar argues that his right to ―due process‖ and article 38.22, section 6 of the Texas 

Code of Criminal Procedure require the trial court to enter an order stating its findings, 

citing Jackson v. Denno. See 378 U.S. 368, 378-80 (1964) (―A defendant objecting to 

the admission of a confession is entitled to a fair hearing in which both the underlying 

factual issues and the voluntariness of his confession are actually and reliably 

determined.―); see also TEX. CODE CRIM. PROC. ANN. art. 38.22, § 6. Article 38.22, 

section 6 provides:

In all cases where a question is raised as to the voluntariness of a 

statement of an accused, the court must make an independent finding in 

the absence of the jury as to whether the statement was made under 

voluntary conditions. If the statement has been found to have been 

voluntarily made and held admissible as a matter of law and fact by the 

court in a hearing in the absence of the jury, the court must enter an order 

stating its conclusion as to whether or not the statement was voluntarily 

made, along with the specific finding of facts upon which the conclusion 

was based, which order shall be filed among the papers of the cause. . . .

TEX. CODE CRIM. PROC. ANN. art. 38.22, § 6. 

The State argues that Mar waived this complaint by failing to raise it in the trial 

court. We agree. The record does not contain any request from Mar that the trial court 

make these findings or an objection that the trial court issue written findings on the 

motion to suppress. The Texas Court of Criminal Appeals has held that the right to 

findings under article 38.22, section 6 is ―a statutory  ̳right‘ which is forfeited by a party's 

failure to insist upon its implementation.‖ State v. Terrazas, 4 S.W.3d 720, 728 (Tex. 
17

Crim. App. 1999) (citing Marin v. State, 851 S.W.2d 275, 278-79 (Tex. Crim. App. 1993)). 

Additionally, in Terrazas, the Texas Court of Criminal Appeals held that Jackson v. 

Denno does not require a separate order stating findings on the voluntariness of a 

confession. Id. Under these circumstances, Mar has forfeited his third issue on 

appeal, and we overrule it.

III. SUPPRESSION OF THE CONFESSION

Mar argues that the trial court erred by overruling his motion to suppress evidence 

because his confession was obtained in violation of his right to counsel under the Fifth 

and Sixth Amendments. See U.S. CONST. amends. V, VI. By his first issue, Mar 

argues that he did not understand his rights and that the police officers continued 

interrogating him after he validly invoked his right to counsel. By his second issue, Mar 

argues that his confession was involuntary because the police made repeated threats, 

promises, and representations to him to induce the confession. We disagree.

A. Standard of Review

We review a trial court's ruling on a motion to suppress evidence under a 

bifurcated standard of review. Ford v. State, 158 S.W.3d 488, 493 (Tex. Crim. App. 

2005). We do not engage in our own factual review; rather the trial judge is the sole 

trier of fact and judge of credibility of the witnesses and the weight to be given to their 

testimony. State v. Ross, 32 S.W.3d 853, 855 (Tex. Crim. App. 2000); Guzman v. 

State, 955 S.W.2d 85, 89 (Tex. Crim. App. 1997). Trial courts are given almost 

complete deference in determining historical facts. Carmouche v. State, 10 S.W.3d 

323, 327 (Tex. Crim. App. 2000). We review the record to determine whether the trial 

court's ruling is supported by the record and correct under some theory of law applicable 
18

to the case. Armendariz v. State, 123 S.W.3d 401, 404 (Tex. Crim. App. 2003). In the 

case before us, the trial court did not make explicit findings of fact. Under these 

circumstances, we view the evidence in the light most favorable to the trial court's rulings 

and assume that the trial court made implicit findings of fact supported by the record. 

Ford, 158 S.W.3d at 493.

B. Voluntary, Knowing, and Intelligent Waiver

Mar argues that he did not validly waive his right to counsel because his 

comments during the interrogation show that he did not understand that he would be 

provided counsel if he could not afford one. We disagree.

Article 38.22 of the Texas Code of Criminal Procedure prohibits the introduction of 

an interrogation into evidence unless the accused is warned of his Miranda rights and 

unless he knowingly, intelligently, and voluntarily waives those rights. TEX. CODE CRIM.

PROC. ANN. art. 38.22, § 3(a) (Vernon 2005); Miranda v. Arizona, 384 U.S. 436, 444, 

474-75 (1966). ―Waiver is shown as a matter of law with regard to pretrial questioning if 

an accused (1) who has not yet retained or been appointed counsel (2) decides 

voluntarily not to rely on his right to counsel and (3) decides so with the understanding 

that he could remain silent and request a lawyer and that the State could use any 

statement against him.‖ Hunter v. State, 148 S.W.3d 526, 533 (Tex. App.–Houston 

[14th Dist.] 2004, pet. ref‘d). 

At the beginning of the interrogation, Sergeant Anderson informed Mar of his 

rights, including his right to remain silent and to the appointment of counsel, and Mar 

signed a waiver and indicated that he understood all of his rights. Later in the interview, 

the following exchange occurred:
19

Ranger Castañeda: The bottom line. Look, I understand what 

you‘re saying, but the bottom line is, there‘s a 

good possibility you could go to prison for the 

rest of your life if you don‘t 

cooperate. . . . Abraham, you are not listening 

at all. You are not listening. Listen to me. 

Listen to me. Cut the crap about being the 

victim. You shot that officer. We got you on 

video. You shot that weapon. We got your 

license plate on the car on the video. We got 

the store video doing the same—showing the 

same thing. So cut the crap about being a 

victim. You‘re not a victim on this one. You 

might have been a victim of the other ones. 

But on this one where I‘m involved, she‘s 

involved, you are a—you‘re not a victim. You 

shot that officer. We wanna know why you 

shot the officer. And if you don‘t wanna tell us, 

we‘ll make sure we tell the District Attorney to 

go ahead and go all the way for ninety-nine 

years. Because I guarantee you, you wanna 

get your high-powered attorney, get him. All 

we have to do is show that videotape to the 

jury, and you are gone. You‘ll never see your 

children again.

Mar: I don‘t even have money to get an attorney.

We disagree that this exchange necessarily demonstrates that Mar did not 

understand his right to counsel. In context, Mar‘s statement could be interpreted as 

merely a response to the officer‘s challenge to go get a ―high-powered‖ attorney—not as 

an expression indicating that Mar did not understand his right to appointed counsel. The 

trial court was entitled to resolve this fact issue against Mar. Carmouche, 10 S.W.3d at 

327. We overrule this argument. 

C. Initiation of Interrogation After Invocation of the Right to Counsel and to 

Remain Silent

Second, Mar agues that after he invoked his right to counsel and to remain silent, 

the officers initiated further interrogation when they should have terminated it, violating 
20

the Fifth and Sixth Amendments.2 Mar argues that he invoked his right to counsel, and 

the statement by Sergeant Anderson, ―Ay, mijo,‖ demonstrated her ―distress at Abraham 

Mar‘s request . . . which clearly influenced Abraham Mar.‖ Furthermore, Mar argues 

that he did not initiate further communication with the police. Mar argues that although 

he ―continued to vent his frustrations, he did not state he no longer wished to speak to an 

attorney, nor did he recant his request.‖ Rather, the conversation regarding the offense 

was initiated by Ranger Castañeda. The State, on the other hand, argues that Mar 

initiated the further conversation.

―Once  ̳an accused has invoked his right to have counsel present during 

custodial interrogation . . . [he] is not subject to further interrogation by the authorities 

until counsel has been made available,‘ unless he initiates the contact.‖ Montejo v. 

Louisiana, 129 S. Ct. 2079, 2085 (2009) (quoting Edwards v. Arizona, 451 U.S. 477, 

484-85 (1981)). ―For a suspect to  ̳reinitiate‘ communication with authorities, the 

suspect's remarks must  ̳represent a desire . . . to open up a more generalized 

discussion relating directly or indirectly to the investigation.‘‖ Martinez v. State, 275 

S.W.3d 29, 35 (Tex. App.–San Antonio 2008, pet. stricken) (quoting Oregon v. 

Bradshaw, 463 U.S. 1039, 1045 (1983) (plurality op.)). The impetus of the defendant‘s 

remarks must come from the defendant, not from ―police interrogation or conduct that is 

the functional equivalent of interrogation.‖ Id. (citing Moran v. State, 213 S.W.3d 917,

922-23 (Tex. Crim. App. 2007). ―Interrogation‖ includes ―not only . . . express 

 

2 We note that Mar does not argue that, if we find he initiated the contact, the police were required 

to demonstrate a second, valid waiver of the right to counsel; therefore, we do not consider that issue. 

See Cross v. State, 144 S.W.3d 521, 526-27 (Tex. Crim. App. 2004) (citing Oregon v. Bradshaw, 463 U.S. 

1039, 1045-46 (1983) (plurality op.) and holding that Edwards requires proof that, after he reinitiates 

communication with the authorities, the suspect validly waives the right to counsel).
21

questioning, but also to any words or actions on the part of the police (other than those 

normally attendant to arrest and custody) that the police should know are reasonably 

likely to elicit an incriminating response from the suspect.‖ Rhode Island v. Innis, 446 

U.S. 291, 301 (1980); see Moran, 213 S.W.3d at 922-23. The Supreme Court‘s 

definition of interrogation focuses ―primarily on the perceptions of the suspect, rather 

than the intent of the police.‖ Innis, 446 U.S. at 301. ―In determining whether 

interrogation occurred, we do not look at statements made by the police in a vacuum; 

rather, we view them in light of the circumstances of the interaction between the suspect 

and the police on the occasion in question.‖ Martinez, 275 S.W.3d at 35.

It is undisputed that Mar invoked his right to counsel by asking for an attorney. 

Immediately after Mar requested to speak to an attorney, Sergeant Anderson reached 

under the table to retrieve the waiver of rights that Mar had signed and moved her chair 

back from the table, apparently packing up her things to leave. As she did this, she 

muttered, ―Ay mijo. Ok.‖ Ranger Castañeda immediately said, ―You do have a right to 

an attorney; You‘re gonna get that right to an attorney.‖ 

Mar argues that Sergeant Anderson made an impermissible comment on his 

request for counsel by making the comment, ―Ay, mijo.‖ Mar argues that this 

constituted interrogation because it influenced him to confess. We disagree. 

Sergeant Anderson referred to Mar as ―mijo‖ throughout the video. She agreed 

with Mar‘s counsel at the hearing on the motion to suppress that this statement means, 

―son.‖ She testified that it was merely an expression she uses because she deals with 

children often. But more importantly, immediately after she made this comment, she 

began packing her things to leave, and within seconds, Ranger Castañeda told Mar that 
22

he would get an attorney. Mar immediately began talking again. Under the 

circumstances, the trial court was entitled to find that Sergeant Anderson‘s comment was 

not coercive and did not constitute interrogation, based on the totality of the interactions 

between Mar and the officers. See Innis, 446 U.S. at 301 (finding that defendant was 

not interrogated where the ―conversation was, at least in form, nothing more than a 

dialogue between the two officers to which no response from the respondent was 

invited.‖); Martinez, 275 S.W.3d at 35. 

Mar relies on Ochoa v. State, where the Texas Court of Criminal Appeals held 

that a thirty-to-forty-minute conversation about marital problems, children, and other 

matters, after which the defendant confessed, rendered the confession inadmissible. 

573 S.W.2d 796, 800 (Tex. Crim. App. 1978). We note, however, that the officer in that 

case expressly admitted that he engaged in the idle conversation with the defendant as a 

way to ―calm and relax him and to  ̳get on his good side,‘ and to thus get appellant to 

make a statement.‖ Id. This case is substantially different. Here, Sergeant 

Anderson merely said, ―Ay, mijo,‖ and then Ranger Castañeda immediately told Mar he 

would get him an attorney. 

Additionally, focusing on the defendant‘s perspective rather than the intent of the 

police, Mar did not testify at the hearing on the motion to suppress. There is no 

evidence in the record supporting his argument that, from his perspective, this statement 

by Sergeant Anderson influenced his decision to initiate further communication with the 

police. See Moran v. State, 213 S.W.3d 917, 923 (Tex. Crim. App. 2007) (finding 

significant that the defendant never testified that officer‘s comment that he had spoken to 

other people caused him to re-initiate conversation with the police and incriminate 
23

himself). 

Next, Mar argues that he did not initiate further communication, but rather, Ranger 

Castañeda reinitiated the interrogation. When Ranger Castañeda told Mar he would 

get him an attorney, Mar immediately interrupted him and began talking again, crying as 

he spoke. Mar began explaining his background and told the officers that he had 

psychiatric problems. He said he felt like the police had been bullying him, and he 

asked Ranger Castañeda how it would make him feel. Ranger Castañeda stated it 

would make him angry, and asked, ―And then what happened?‖ Mar points out that 

Ranger Castañeda did ask a question before Mar gave a confession, and he argues that 

before that question, Mar merely discussed his background with the officers. We hold 

that Mar‘s statements constituted an attempt to ―open up a more generalized discussion 

relating directly or indirectly to the investigation.‖ Martinez, 275 S.W.3d at 35-36

(quoting Bradshaw, 463 U.S. at 1045)).

Throughout the interview, the police told Mar that they did not need to know what 

happened, but they just needed to know why. From the beginning, Mar insisted that he 

had been harassed by the police on numerous occasions. When he finally confessed, 

this was the reason he gave for shooting Officer Diaz. Thus, it is disingenuous for Mar 

to now argue that he was only discussing his background. Accordingly, we hold that 

Mar‘s right to counsel was not violated. See id.

Mar also briefly argues that the interrogation violated his Fifth Amendment right to 

remain silent. See U.S. CONST. amend. V. Mar argues that during the interrogation, 

he stated that he did not ―want to spend any more time with the questioning,‖ and this 

was an invocation of his right to remain silent, which should have terminated the 
24

interview. The State counters that this was not an unequivocal and clear invocation of 

the right to remain silent because the context shows that Mar wanted to begin 

confessing. We agree with the State. 

At the time that Mar made this statement, he was requesting to speak to the 

district attorney, and he expressly stated that he would talk to the district attorney and 

―lace him up on what happened.‖ An interrogating officer is not required to stop his 

questioning unless the suspect's invocation of rights is unambiguous. Ramos v. State, 

245 S.W.3d 410, 418 (Tex. Crim. App. 2008). The officer is not required to ask clarifying 

questions, and ―[i]f the suspect's statement is not an unambiguous or unequivocal

request [to terminate the interview or to invoke the right to silence], the officers have no 

obligation to stop questioning him.‖ Davis v. United States, 512 U.S. 452, 461-62 

(1994); see Berghuis v. Thompkins, 130 S. Ct. 2250, 2260 (2010) (―If an accused makes 

a statement concerning the right to counsel ―that is ambiguous or equivocal‖ or makes no 

statement, the police are not required to end the interrogation, ibid., or ask questions to 

clarify whether the accused wants to invoke his or her Miranda rights.‖). ―Ambiguity 

exists when the suspect's statement is subject to more than one reasonable 

interpretation under the circumstances.‖ Luna v. State, 301 S.W.3d 322, 325 (Tex. 

App.–Waco 2009, no pet.). The trial court implicitly found that Mar‘s statement was 

ambiguous, and considering the context, we agree. Mar did not state that he no longer 

wished to speak to law enforcement personnel. Rather, he stated that he wanted to 

hear from the district attorney about how much time he was facing, and then he would 

tell the district attorney what happened. We hold this is not a clear and unequivocal 

invocation of the right to remain silent. See Williams v. State, 257 S.W.3d 426, 
25

434 (Tex. App.–Austin 2008, pet. ref‘d) (concluding that accused‘s request to ―terminate 

everything‖ was ambiguous because, in context, ―appellant appeared frustrated by his 

detention and was attempting to determine whether he had been arrested.‖); Hargrove v. 

State, 162 S.W.3d 313, 319 (Tex. App.–Fort Worth 2005, pet. ref‘d) (holding that 

accused‘s statement that he wanted to ―terminate it‖ was ambiguous and did not require 

the officer to stop questioning); see also Davis v. State, No. AP-74393, 2007 WL 

1704071, at *6 (Tex. Crim. App. June 13, 2007) (not designated for publication) (holding 

right to remain silent was not unambiguously asserted where defendant asked to 

terminate the interview to go home to see his mother, where the court found the request 

could be construed as ―a desire to continue the interview once his concern about his 

mother had been satisfied.‖). We hold that Mar initiated further conversation with the 

officers, and the confession did not violate his right to counsel or to remain silent under 

the Fifth or Sixth Amendments. Accordingly, we overrule Mar‘s first issue. 

C. Promises by Law Enforcement

Mar argues by his second issue that his confession was rendered involuntary by 

promises from law enforcement. Specifically, he argues that, on numerous occasions 

throughout the interrogation, Ranger Castañeda told him he would speak to the district 

attorney on his behalf and that Mar would not get a sentence of ninety-nine years if he 

cooperated. While Mar acknowledges that Ranger Castañeda also stated he could not 

make any promises, Mar argues that this type of ―deception‖ rendered his statement 

involuntary. We disagree.

A statement is involuntary for due process purposes when there is official, 

coercive conduct such that any statement obtained thereby was unlikely to have been 
26

the product of an essentially free and unconstrained choice. Alvarado v. State, 912 

S.W.2d 199, 211 (Tex. Crim. App. 1995); see also Valdez v. State, No. 13-04-468-CR, 

2005 WL 1953187, at *1-3 (Tex. App.–Corpus Christi Aug. 11, 2005, no pet.) (mem. op., 

not designated for publication). A confession is rendered involuntary by promises by 

law enforcement when the promises are (1) positive, (2) of some benefit to the 

defendant, (3) made or sanctioned by someone in authority, and (4) of such an influential 

nature that a defendant would speak untruthfully in response thereto. Sossaman v. 

State, 816 S.W.2d 340, 345 (Tex. Crim. App. 1990), abrogated on other grounds by

Graham v. State, 994 S.W.2d 651, 656 (Tex. Crim. App. 1999). 

The third element requires that the officer either have authority to make the 

promise or appear to have such authority. See Johnson v. State, 68 S.W.3d 644, 

654-55 (Tex. Crim. App. 2002); Henderson v. State, 962 S.W.2d 544, 564-65 (Tex. Crim. 

App. 1997). In Johnson, the Texas Court of Criminal Appeals found that the promises 

made by the police officers did not render the defendant‘s confession involuntary 

because the officers ―plainly told appellant that the police could make no guarantees‖ 

and ―could only relay information to the court and prosecutor.‖ 68 S.W.3d at 654-55; 

see also Henderson, 962 S.W.2d at 565 (―Because appellant knew Napier had no 

authority, she could not have been improperly induced by any alleged promises.‖).

Here, Ranger Castañeda clearly and unequivocally stated to Mar that he did not 

have authority to make any promises with respect to the sentence that Mar would 

receive, and Mar acknowledged as much. Initially, Ranger Castañeda told him that he 

might get less time in prison by cooperating, but he qualified that by stating, ―I‘m not 

promising anything, number one, I‘m not promising anything. But your cooperation 
27

means a lot to the District Attorney‘s office. And me personally, I will contact the District 

Attorney‘s office and tell them that you cooperated with us.‖ 

Ranger Castañeda told Mar that by talking with the police and cooperating, it 

might help him avoid a ninety-nine year sentence. He immediately said, however, ―I 

can‘t promise you anything, you gotta make that perfectly clear.‖ Mar replied, ―Yeah, I 

know.‖ Later in the interview, Mar asked to speak to the District Attorney and stated: 

―And you‘re making a promise on that thing because . . . the DA‘s gonna say how much 

time I‘m gonna get on that, and you know that‘s against the law to make a promise.‖ 

Ranger Castañeda clearly stated, ―I can‘t make a promise. The DA can make a 

promise.‖ Under these circumstances, we conclude that the trial court did not err by 

impliedly finding that Mar was aware that Ranger Castañeda did not have the authority to 

promise a lower sentence. See id. Therefore, Mar has not established the third 

element of the Sossaman test, and we overrule his second issue.

IV. CONCLUSION

Having overruled all of Mar‘s issues, we affirm.

________________________

GINA M. BENAVIDES,

Justice

Do not publish.

TEX. R. APP. P.47.2(B)

Delivered and filed the

6th day of January, 2011.