i 

No. 13-15-00089-CR

* * * * * * * * * * * * * * * * * * * * * * * * * * * * 

IN THE COURT OF APPEALS 

THIRTEENTH DISTRICT 

CORPUS CHRISTI, TEXAS 

* * * * * * * * * * * * * * * * * * * * * * * * * * * * 

ROBERTO SAVEDRA, 

 APPELLANT 

V.

THE STATE OF TEXAS, 

 APPELLEE 

* * * * * * * * * * * * * * * * * * * * * * * * * * * * 

On Appeal from Cause No. 99-4-6124 

in the 24th Judicial District Court 

of Jackson County, Texas 

* * * * * * * * * * * * * * * * * * * * * * * * * * * * 

STATE’S REPLY BRIEF

* * * * * * * * * * * * * * * * * * * * * * * * * * * * 

ROBERT E. BELL 

 District Attorney 

 State Bar Card No. 02086200 

 Jackson County Courthouse 

 115 West Main Street 

 Edna, Texas 77957 

JIM VOLLERS 

 State Bar Card No. 20609000 

 2201 Westover Road 

 Austin, Texas 78703 

 ATTORNEYS FOR THE STATE 

ACCEPTED

13-15-00089-CR

THIRTEENTH COURT OF APPEALS

CORPUS CHRISTI, TEXAS

7/10/2015 1:33:38 PM

CECILE FOY GSANGER

CLERK

 FILED IN 13th COURT OF APPEALS CORPUS CHRISTI/EDINBURG, TEXAS 7/10/2015 1:33:38 PM CECILE FOY GSANGER Clerk
ii

IDENTITY OF PARTIES AND COUNSEL

1. Robert E. Bell

Criminal District Attorney, Jackson County

State Bar Card No. 02086200

Jackson County Courthouse

115 West Main Street

Edna, Texas 77957

Email: ef_mitchell@yahoo.com

Jim Vollers

Attorney at Law

State Bar Card No. 20609000

2201 Westover Road

Austin, Texas 78703

Email: jimvollers@att.net

Attorneys for the State

2. Roberto Savedra

Appellant

3. Ralph R. Martinez 

Attorney at Law 

State Bar Card No.13143600

2900 Woodridge, Suite 202

Houston, Texas 77087

Email: ralis994@aol.com

Attorney for Appellant

4. Honorable Stephen Williams, District Judge

24th Judicial District Court, Jackson County Courthouse

115 West Main Street

Edna, Texas 77957

Email: kwilliams@cscd.net

Trial Judge
iii

TABLE OF CONTENTS

 PAGE

IDENTITY OF PARTIES AND COUNSEL . . . . . . . . . . . . . . . . . ii

TABLE OF CONTENTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iii

INDEX OF AUTHORITIES . . . . . . . . . . . . . . . . . . . . . . . . . . . v

STATEMENT OF THE CASE . . . . . . . . . . . . . . . . . . . . . . . . . . 2

STATEMENT OF FACTS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 

APPELLANT’S ASSIGNMENT OF ERROR NUMBER ONE

(RESTATED). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

 

WHETHER APPELLANT’S STATEMENT TO OFFICER 

PAT BRENNAN AND CONSENTS TO SEARCH AND 

MOVE HIS VEHICLE WERE OBTAINED AS A RESULT 

OF AN ILLEGAL PROLONGED DETENTION

ARGUMENT AND AUTHORITIES . . . . . . . . . . . . . . . . . . . . . . 6

CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14

APPELLANT’S ASSIGNMENT OF ERROR NUMBER TWO

(RESTATED). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15

WHETHER THE SEARCH OF APPELLANT’S VEHICLE 

WAS ILLEGAL FOR FAILURE OF POLICE TO GIVE 

APPELLANT HIS MIRANDA WARNINGS PRIOR TO 

SECURING APPELLANT’S CONSENTS TO SEARCH 

HIS VEHICLE

ARGUMENT AND AUTHORITIES . . . . . . . . . . . . . . . . . . . . . . 15
iv

APPELLANT’S ASSIGNMENT OF ERROR NUMBER THREE 

(RESTATED). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16

WHETHER THE CONSENTS GIVEN BY APPELLANT 

TO SEARCH HIS VEHICLE AND MOVE HIS VEHICLE 

TO ANOTHER LOCATION WERE KNOWINGLY AND 

VOLUNTARILY GIVEN

ARGUMENT AND AUTHORITIES . . . . . . . . . . . . . . . . . . . . . . 16

APPELLANT’S ASSIGNMENT OF ERROR NUMBER FOUR

(RESTATED). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17

WHETHER THE STATEMENTS APPELLANT GAVE TO 

OFFICER PAT BRENNAN WERE INVOLUNTARILY 

OBTAINED IN VIOLATION OF TEXAS CODE OF 

CRIMINAL PROCEDURE ARTICLE 38.21 AND 38.22, 

THE FIRTH AMENDMENT OF THE UNITED STATES 

CONSTITUTION, AND ARTICLE I §10 OF THE 

TEXAS CONSTITUTION

ARGUMENT AND AUTHORITIES . . . . . . . . . . . . . . . . . . . . . 18

CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19

CERTIFICATE OF SERVICE . . . . . . . . . . . . . . . . . . . . . . . . . 20

CERTIFICATE OF COMPLIANCE . . . . . . . . . . . . . . . . . . . . . . 21
v

INDEX OF AUTHORITIES

CASES: PAGE

Gillenwaters v. State, 205 S.W.3d 534, 537 

(Tex.Crim.App. 2006) . . . . . . . . . . . . . . . . . . . . . . . . . 7

Juarez v. State, 758 S.W.2d 772, 781, n.5 

(Tex.Crim.App. 1988) . . . . . . . . . . . . . . . . . . . . . . . . . 13

Kothe v. State, 152 S.W.3d (Tex.Crim.App. 2004) . . . . . . . . 13

Lankston v. State, 827 S.W.2d 907, 909

(Tex.Crim.App. 1992) . . . . . . . . . . . . . . . . . . . . . . . . . 8

Layton v. State, 280 S.W.3d 235 (Tex.Crim.App. 2009) . . . . 7

Neal v. State, 150 S.W.3d 169, 178 (Tex.Crim.App. 2004) . . 8

Rodriguez v. United States, 135 S.Ct. 1609 . . . . . . 9, 10, 12, 13

Schneckloth v. Bustamonte, 412 U.S. 218 . . . . . . . . . . . . 13

Zillender v. State, 557 S.W.2d 515, 517

(Tex.Crim.App. 1977) . . . . . . . . . . . . . . . . . . . . . . . . . 8

TEXAS RULES OF APPELLATE PROCEDURE:

Rule 33.1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

Rule 33.1(a)(1)(A). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

TEXAS RULES OF EVIDENCE:

Rule 103(a)(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7 
1

NO. 13-15-00089-CR

IN THE COURT OF APPEALS

THIRTEENTH DISTRICT

CORPUS CHRISTI, TEXAS

* * * * * * * * * * * * * * * * * * * * * * * * * * * *

ROBERTO SAVEDRA,

APPELLANT

V.

THE STATE OF TEXAS,

APPELLEE

* * * * * * * * * * * * * * * * * * * * * * * * * * * *

On Appeal from Cause No. 99-4-6124

in the 24th Judicial District Court

of Jackson County, Texas

* * * * * * * * * * * * * * * * * * * * * * * * * * * *

STATE’S REPLY BRIEF

* * * * * * * * * * * * * * * * * * * * * * * * * * * *

TO THE HONORABLE JUSTICES OF THE COURT OF APPEALS:

COMES NOW, THE STATE OF TEXAS, appellee herein, and 

files this, its reply brief herein, and would show unto the Court the 

following: 
2

STATEMENT OF THE CASE

Appellant was charged by indictment with possession of 

marijuana in an amount between five and 50 pounds. On February 

17, 2015, appellant waived a jury and was tried before the court 

upon his plea of not guilty. Appellant had filed two motions to 

suppress and they were carried along with the trial. At the 

conclusion of the evidence, the court overruled both motions based 

upon evidence presented at trial and found appellant guilty of 

possession of marijuana and assessed his punishment at six years 

confinement in the Texas Department of Criminal Justice.

STATEMENT OF FACTS

This was a trial before the court conducted on February 17, 

2015, for an offense committed on February 16, 1999. On that date 

Trooper Frank Rios of the Texas Department of Public Safety, while 

on routine patrol, observed appellant driving a 1981 Dodge pickup 

that was pulling a trailer that did not have a front license plate on the 

vehicle, did not have a left outside rearview mirror that was required 

when pulling a trailer, and had a defective muffler that sometimes 

struck the pavement under the pickup R. (Vol. 2, pp. 10-18). When 
3

Trooper Rios made the routine traffic stop, appellant exited the 

vehicle at Trooper Rios’ request and produced a Louisiana driver’s 

license before he was requested to do so (R. Vol. 2, p. 12). Rios 

became suspicious when appellant would not look him in the eye 

when he talked to him and appeared to be more nervous than 

usually occurred for a routine traffic stop for minor violations (R. Vol. 

2, p. 13). Appellant identified the passenger as his wife. Rios asked 

appellant and his wife routine questions such as where they were 

coming from, where they were going and the purpose of the trip. 

Because of appellant’s reactions and the conflict in answers between 

appellant and his wife, Rios became increasingly suspicious that the 

situation involved more than a routine traffic stop (R. Vol. 2, pp. 16-

17). Rios then requested appellant’s consent to conduct a search of 

the vehicle and the trailer. Appellant consented to the search. This 

request and consent occurred only about two or three minutes

maybe four after the initial traffic stop was made (R. Vol. 2, p. 35)

and before Rios had concluded such matters as conducting a routine 

check of the vehicle license and writing a ticket for the offenses he 

observed (R. Vol. 2, pp. 29-34). 
4

When Rios looked under appellant’s vehicle, he noticed two 

non-factory welds on the drive shaft yoke and indications that certain 

bolts connecting the drive shaft had been disturbed. Rios became

suspicious that the drive shaft which was about four inches wide and 

hollow contained contraband, even though when he tapped on it it 

sounded hollow, because of his observation that the bolts had been 

disturbed but the universal joint had not been replaced. He again 

asked appellant’s permission and consent to remove the vehicle to a 

garage because he needed further tools to conduct the search (R. 

Vol. 2, pp. 17-19). Appellant consented and agreed to follow Rios to 

a garage in Ganado. Once he got there, Rios again asked for 

permission to continue the search and appellant granted consent (R. 

Vol. 2, pp. 19-20). Rios then drilled an inspection hole into the drive 

shaft, hit another pipe, continued to drill and found that it contained 

a “green substance that smelled like unburnt marijuana.” Then the 

drive shaft was taken apart and found to contain 9.60 pounds of 

marijuana (R. Vol. 2, p. 21).

After the discovery of the marijuana, appellant was interviewed 

by Sergeant Pat Brennan and told Sergeant Brennan that he, 
5

appellant, actually put the marijuana in the drive shaft (R. Vol. 2, pp. 

23-24). Pat Brennan, who was a sergeant investigator with 

Department of Public Safety Narcotics Service, sponsored the 

introduction of State’s Exhibit 8 which was a taped interview with 

appellant, which was played to the court. This exhibit included 

Brennan’s explanation of appellant’s rights and warnings to appellant 

along with his waiver of his right to counsel and his confession (R. 

Vol. 2, pp. 46-48).

The State further proved that appellant skipped bail on this 

charge. The bond was forfeited and appellant was later arrested for 

a different traffic offense on April 7, 2014 and returned to Jackson 

County for trial (R. Vol. 2, pp. 51-56).

At the conclusion of the evidence, the trial court stated:

“The motion to suppress statements and the motion to 

suppress evidence are denied and I’ve signed the orders 

to that effect. I do find that there was probable cause for 

the stop, that the Trooper received consent for the 

subsequent searches and as to the statement I find it was 

voluntary and that he had been properly admonished.” 

(R. Vol. 1, p. 59)

Prior to this ruling by the trial court, appellant had objected to 

State’s Exhibit 8 only on the grounds stated in his pretrial motion (R. 
6

Vol. 1, p. 47) and in his argument to the court immediately prior to 

the ruling which might be construed as objections (R. Vol. 2, pp. 58-

59). 

APPELLANT’S ASSIGNMENT OF ERROR NUMBER ONE 

(RESTATED)

WHETHER APPELLANT’S STATEMENT TO OFFICER PAT 

BRENNAN AND CONSENTS TO SEARCH AND MOVE HIS 

VEHICLE WERE OBTAINED AS A RESULT OF AN ILLEGAL 

PROLONGED DETENTION.

ARGUMENT AND AUTHORITIES

As set forth in his Assignment of Error Number One, appellant’s

complaint is that appellant’s consents to search and his statement to 

Officer Brennan were tainted by “an illegal prolonged detention.” 

Examination of this record reveals that this issue was not preserved 

for review. 

Appellant filed two motions to suppress in this cause. One, 

titled “Motion to Suppress Statements,” containing five allegations, 

none of which mention that his statement was tainted by “an illegal 

prolonged detention” resulting from a traffic stop. In his motion 

titled “Motion to Suppress Evidence,” appellant alleged that he was 
7

“illegally stopped by officers” and the traffic stop and seizure was 

made in violation of the Fourth Amendment of the United States 

Constitution.” Nowhere does it suggest that there was an “illegal 

prolonged detention.” 

Rule 33.1 of the Texas Rules of Appellate Procedure specifically 

provides that as a prerequisite to presenting a complaint for appellate 

review the record must show that “the complaint was made to the 

trial court by a timely request, objection, or motion” that stated the 

grounds for the ruling that the complainant 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;” and the trial court ruled on the request, objection or 

motion, either expressly or implicitly.

It was pointed out in Layton v. State, 280 S.W.3d 235 

(Tex.Crim.App. 2009), “In order to preserve an issue for appellate 

review, a timely and specific objection is required. TEX.R.APP. 

P. 33.1(a)(1)(A); TEX.R. EVID. 103(a)(1); Gillenwaters v. State, 205 

S.W.3d 534, 537 (Tex.Crim.App.2006). A specific objection is 

necessary to inform the trial judge of the issue and basis of the
8

objection, and to allow the judge a chance to rule on the issue at 

hand. Neal v. State, 150 S.W.3d 169, 178 (Tex.Crim.App.2004), 

citing Zillender v. State, 557 S.W.2d 515, 517 (Tex.Crim.App.1977). 

As we stated in Lankston v. State, 827 S.W.2d 907, 909 

(Tex.Crim.App.1992), ‘all the party has to do to avoid the forfeiture 

of a complaint on appeal is to let the trial judge know what he wants, 

why he thinks he is entitled to it, and to do so clearly enough for the 

judge to understand him at a time when the trial court is in a proper 

position to do something about it.’” (280 S.W.3d 239). This record 

fails to reveal that appellant voiced any further objection in the bench 

trial in this cause that would indicate to the trial judge that his 

request for relief was based upon the illegality of a “prolonged 

detention.” He simply did not let the trial judge know what he 

wanted and why he thought he was entitled to it clearly enough for 

the judge to understand him at the time when the trial court was in a 

position to do something about it. It is therefore respectfully 

submitted that this point of error was not preserved for review.

Even if this Court feels that this issue has been preserved, it is 

clearly without merit. 
9

It appears that the manner in which the issue is presented 

herein the main issue to be decided is whether or not appellant was 

subjected to an improperly prolonged detention after a proper traffic 

stop. Appellant relies rather strongly upon Rodriguez v. United 

States, 135 S.Ct. 1609. The State respectfully submits that 

Rodriguez is inapplicable because the court clearly states that the 

question presented in that case was “whether the Fourth Amendment 

tolerates a dog sniff conducted after completion of a traffic stop.” 

(Emphasis added). In Rodriguez the facts relied upon by the 

Supreme Court revealed that a traffic stop was made at 12:06 a.m. 

and by 12:27 or 12:28 a.m. the officer had finished explaining the 

warning to Rodriguez and had given him back the documents 

obtained from him. At that point Rodriguez had all of his documents 

back and a copy of the written warning and the officer had gotten all 

of the reasons for the stop out of the way. Nevertheless, he did not 

consider Rodriguez “free to leave,” although justification for the 

traffic stop was out of the way, the officer asked Rodriguez for 

permission to walk his dog around the vehicle. Rodriguez said no. 

The officer then instructed Rodriguez to turn off the ignition, exit the 
10

vehicle and stand in front of the patrol car to wait for a second officer 

to arrive. Rodriguez complied and at 12:33 another deputy sheriff 

arrived and the dog was lead twice around Rodriguez’s vehicle. The 

dog alerted to drugs and a search of the vehicle was conducted. The 

Supreme Court then concluded that the police may not “routinely” 

extend an otherwise completed traffic stop, absent reasonable 

suspicion, in order to conduct the dog sniff. The court went on to 

note that the court of appeals did not review the determination of 

whether or not the detention of Rodriguez for the dog sniff “was not 

independently supported by individualized suspicion” and went on to 

hold that “the question whether reasonable suspicion of criminal 

activity justified detaining Rodriguez beyond completion of the traffic 

infraction investigation, therefore, remains open for Eighth Circuit 

consideration on remand.” 

From this, it is perfectly clear that if there is a reasonable 

suspicion to suspect that there are other violations, the detention is 

justified. It therefore appears that in the Rodriguez case the 

holding of the court that requires that a traffic stop end “when tasks 

tied to the traffic infraction are – or reasonably should have been –
11

completed” specifically left the question open as to whether a 

reasonable suspicion of criminal activity justified detaining the 

completion of the traffic infraction investigation. In the instant case, 

the officer who made the traffic stop developed a reasonable 

suspicion of criminal activity within a couple of minutes by reason of 

the conduct of appellant and the conflicting answers to questions 

posed between appellant and his wife. When appellant gave his 

voluntary permission for Rios to search his vehicle, Rios was acting 

not only on a reasonable suspicion of criminal activity but also on 

voluntary consent by the owner of the vehicle to conduct a search. 

Then, upon searching the vehicle, Rios concluded, based upon what 

he saw and upon his experience, that there was not only a more 

reasonable suspicion of criminal activity but a reasonable belief by 

Rios that contraband was contained in the drive shaft of the vehicle. 

Since Officer Rios developed a reasonable suspicion of criminal 

activity within two or three minutes after stopping appellant and 

immediately asking appellant for permission to conduct a search, 

which was voluntarily granted by appellant, there was no “routine” 

extension of the traffic stop because Rios was acting both upon his 
12

reasonable suspicion and upon appellant’s voluntary grant of 

permission for Rios to search the automobile. Under these 

circumstances, appellant is certainly misplacing his reliance upon 

Rodriguez, supra. It should be noted that the only evidence that 

appellant’s consent to search was voluntary was offered by the State 

and certainly support the trial court’s finding that appellant 

voluntarily consented to the search. Also, it should be noted that 

allegations in this brief by appellant that he was “continuously 

interrogated” and “aware his wife was interrogated” and “was 

restrained knowing his wife would be arrested” (Brief, p. 15) are

without any support in this record and clearly are simply figments of 

appellant’s imagination. Appellant’s statement in his brief that he 

was “not allowed to consult family or counsel” is also without support 

in this record. 

Appellant also complains that his consent to the searches was 

involuntary because he was given no Miranda warning prior to the 

consent. While there were a number of cases observing that a 

Miranda warning is good police procedure, appellant cites none that 

says that it is necessary in order to make the consent to search 
13

voluntary. As a matter of fact, it has been held that police need not 

inform a person of his right to refuse to consent to a search. 

Schneckloth v. Bustamonte, 412 U.S. 218; Juarez v. State, 758 

S.W.2d 772, 781, n.5 (Tex.Crim.App. 1988). If there is no 

requirement that a person must be warned of his right to refuse to 

consent to a search, there certainly is no requirement that a 

Miranda warning is necessary in order to make a consent to search 

voluntary. Appellant’s assertion that there was an illegal prolonged 

detention is without merit and his reliance upon Rodriguez simply is 

inappropriate. 

Actually this situation is more similar to the situation faced in

Kothe v. State, 152 S.W.3d 54 (Tex.Crim.App. 2004) where the 

court was considering the problem of whether an officer’s continued 

detention was “reasonable” under the circumstances. In addressing 

the issue the court pointed out that in assessing a legal issue, the 

appellate court should give great deference to the trial court’s 

findings of historical fact; however, questions involving legal 

principles and the application of law to established facts are properly 

reviewed de novo. Thus, in deciding whether the officer’s continued 
14

detention was “reasonable” under the specific circumstances, the 

court would review the trial court's factual findings in the light most 

favorable to its ruling, but decide the issue of “reasonableness” as a 

question of Fourth Amendment law under Supreme Court precedent,

viewing the totality of the circumstances in the light most favorable 

to the trial court's factual findings. It concluded that the officer’s 

decision to return to his vehicle and simply wait a few minutes for the 

warrant-check results before releasing the defendant was 

“reasonable” as a matter of substantive Fourth Amendment law. 

Here the officer was acting reasonably as a matter of substantive 

Fourth Amendment law by delaying release of appellant based upon 

appellant’s voluntary consent to search the vehicle as well as the 

officer’s reasonable suspicion that a criminal act was being 

committed by appellant.

CONCLUSION

Since there was no illegal detention, there is simply no 

necessity to examine whether or not the consent to search and 

voluntariness of his statement were impacted by an illegal detention. 
15

This assignment of error is not supported by the record or the 

legal authority relied upon and is without merit. 

APPELLANT’S ASSIGNMENT OF ERROR NUMBER TWO 

(RESTATED)

WHETHER THE SEARCH OF APPELLANT’S VEHICLE WAS 

ILLEGAL FOR FAILURE OF POLICE TO GIVE APPELLANT HIS 

MIRANDA WARNINGS PRIOR TO SECURING APPELLANT’S 

CONSENTS TO SEARCH HIS VEHICLE.

ARGUMENT AND AUTHORITIES

While appellant complains only of the failure to give Miranda

warnings in his point of error, he argues also that consent by 

appellant to search his vehicle was improper because of an extended 

investigation after a traffic stop of matters not involved in the traffic 

stop. First of all, it is noted that this second contention is not within 

the scope of appellant’s assignment of error, and neither of these 

contentions are preserved for review because appellant made no 

specific objection to these issues in the trial court.

Since the issue of preservation of these errors and the 

substance of appellant’s arguments have been addressed in the 

argument and authorities under Appellant’s Assignment of Error 

Number One, the State simply adopts its answer to Appellant’s 
16

Assignment of Error Number One as its response to the Assignment 

of Error Number Two. 

As shown in the previous argument and authorities, Appellant’s 

Assignment of Error Number Two is without merit and should be 

overruled.

APPELLANT’S ASSIGNMENT OF ERROR NUMBER THREE 

(RESTATED)

WHETHER THE CONSENTS GIVEN BY APPELLANT TO SEARCH 

HIS VEHICLE AND MOVE HIS VEHICLE TO ANOTHER 

LOCATION WERE KNOWINGLY AND VOLUNTARILY GIVEN.

ARGUMENT AND AUTHORITIES

Again, it is respectfully submitted that this record does not 

contain specific objections, either in his motions to suppress or the 

trial to the issues which he argues in this assignment of error. The 

argument and authorities offered by the State under Appellant’s 

Assignment of Error Number One on this issue are adopted herein as 

a response to the allegations contained in Assignment of Error 

Number Three. 

If the Court feels that this issue has been preserved for review, 

it is respectfully submitted that the trial judge’s finding that “the 
17

Trooper received consent for the subsequent searches” (R. Vol. 2, p. 

59) carries with it the implicit finding by the trial court that the 

consents to search given by appellant were voluntary. The only 

testimony admitted on this issue was offered by the State indicating 

that appellant knew and understood what he was doing and 

consented to the searches. Appellant offered absolutely no evidence 

of any sort that the searches were not voluntary. The evidence in 

this cause contains no suggestion whatsoever that the trial judge 

abused his discretion in finding that the consents to search were 

voluntary. 

It is respectfully suggested that this issue is not properly 

preserved for review, and if it had been, the trial court did not abuse 

its discretion in overruling any objection on this issue which might 

have been made by appellant.

APPELLANT’S ASSIGNMENT OF ERROR NUMBER FOUR 

(RESTATED)

WHETHER THE STATEMENTS APPELLANT GAVE TO OFFICER 

PAT BRENNAN WERE INVOLUNTARY OBTAINED IN 

VIOLATION OF TEXAS CODE OF CRIMINAL PROCEDURE 

ARTICLE 38.21 AND 38.22, THE FIFTH AMENDMENT OF THE 

UNITED STATES CONSTITUTION, AND ARTICLE I §10 OF THE 

TEXAS CONSTITUTION.
18

ARGUMENT AND AUTHORITIES

Since this issue is basically the same as that set forth in

Appellant’s Assignment of Error Number Three, the State simply 

adopts the argument and authorities made in Appellant’s Assignment 

of Error Number Three in response to these allegations.

It is respectfully submitted that the question presented by 

appellant was not preserved for appellate review, and if it had been 

properly preserved it is without merit.

Appellant’s primary argument is that his “inability to 

comprehend English and the interviewer Pat Brennan’s inability to 

speak Spanish” made the interview presumptively involuntary to 

support appellant’s contention that this issue was raised. The record 

reveals an unsworn statement by his counsel to the court that 

appellant “keeps speaking to me in Spanish and says he can’t speak 

English” (R. Vol. 2, p. 6), and the unsworn response by appellant 

when asked if he could speak English was “Not too much.” (R. Vol. 

2, p. 6). The record reveals that both the arresting officer and the 

officer who took the statement from appellant testified that appellant 

did understand English and understood the Miranda warnings which 
19

were given. In addition to this, the trial court had the opportunity to 

hear a 15-minute interview in order to judge appellant’s capacity to 

understand exactly what was going on. This record is before this 

Court and it includes the recording which the State feels shows 

appellant’s ability to speak English and his understanding of all that 

occurred. It is respectfully submitted that this evidence certainly 

supports the fact that the trial court did not abuse its discretion in 

determining that appellant did understand English and that his 

confession was voluntary. 

This assignment of error is without merit and should be 

overruled.

CONCLUSION

WHEREFORE, PREMISES CONSIDERED, it is respectfully 

submitted that the record in this cause reveals that appellant’s 

complaints are completely without merit and that the judgment of 

the trial court should be in all things affirmed.
20

Respectfully submitted,

Robert E. Bell

District Attorney

State Bar Card No. 02086200

Jackson County Courthouse

115 W. Main Street

Edna, Texas 77957

/s/ Jim Vollers_______________

Jim Vollers

State Bar Card No. 20609000

2201 Westover Road

Austin, Texas 78703

ATTORNEYS FOR THE STATE

CERTIFICATE OF SERVICE

I hereby certify that on this the 10th day of July, 2014, a true 

and correct copy of the foregoing was served electronically through 

the electronic filing manager on the party listed below:

Ralph R. Martinez, Attorney at Law, 2900 Woodridge, Suite 

202, Houston, Texas 77087, Attorney for Appellant, at 

ralis994@aol.com. 

Robert E. Bell, District Attorney, Jackson County Courthouse, 

115 West Main Street, Edna, Texas 77957, Attorney for Appellee, at 

ef_mitchell@yahoo.com.

Judge Stephen Williams, District Judge, 24th Judicial District 

Court, 115 West Main Street, Edna, Texas 77957, at 

kwilliams@cscd.net.
21

If the email of the party or attorney to be served was not on 

file with the electronic filing manager, the pleading was served by 

email.

/s/ Jim Vollers 

 Jim Vollers

CERTIFICATE OF COMPLIANCE

I certify that this document contains 5,106 words (counting all 

parts of the document).

 /s/ Jim Vollers________________

Jim Vollers

 2201 Westover Rd.

 Austin, Texas 78703

(512) 478-6846

 SBN 20609000

JimVollers@att.net

COUNSEL OF RECORD