Galindo, Maria Cristina v. The State of Texas--Appeal from 41st District Court of El Paso County

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COURT OF APPEALS

EIGHTH DISTRICT OF TEXAS

EL PASO, TEXAS

 
MARIA CRISTINA GALINDO,

Appellant,

 

v.

 

THE STATE OF TEXAS,

 

Appellee.

 

 

 

 

No. 08-01-00230-CR

 

Appeal from the

 

41st District Court

 

of El Paso, Texas

 

(TC# 20000D01903)

 
MEMORANDUM OPINION

This appeal arises from a jury conviction for capital murder. The State did not seek the death penalty. Punishment was assessed as mandatory confinement for life. Appellant, Maria Galindo, argues two points on appeal: (1) The trial court erred in denying a motion to suppress the confession and (2) the state engaged in prosecutorial misconduct. We affirm the judgment of the trial court.

I. SUMMARY OF THE EVIDENCE

Appellant placed an emergency call on March 9, 2002, reporting that her child, ten-month old Jose Jr., had vomited, was not breathing properly and was failing to respond to her. This phone call was made after Appellant had first called her husband, who told her to call emergency services and that he was on his way home. Firemen arrived first, followed by paramedics. The time between the call and the paramedic-response was six minutes. The paramedics in attempting to render medical aid, found the baby cold to touch, lifeless, bluish-purple in color and presumed dead.

Testimony from one of the attending paramedics indicated medical conditions termed "modeling" and "distension" had transpired. This testimony indicated the modeling, a condition occurring after death and resulting in coagulation and pooling of blood in certain areas due to gravity, and the distention, which is swelling, were very distinctive. Further testimony provided Appellant showed no apparent emotion at the hospital, while the bereaved father cried and held the infant. Testimony provided that the medical conditions modeling, distension, and coldness to touch, transpire after a period of time. Intubation of the victim, i.e., a process for dislodgment of airway obstructions using a small suction tube, resulted in large amounts of food, vomit, and fluid being extracted. Further attempts at resuscitation at the hospital were unsuccessful.

The record shows that Appellant gave police three statements. The first statement occurred on March 9, 2000 at approximately 4:40 p.m., a second statement on March 10, 2000 at around 5 p.m., and a third statement on March 10, 2000. Prior to each statement, Appellant was advised of her Miranda rights. Appellant made a motion to suppress the three statements. After a pre-trial hearing, the trial court overrruled Appellant's motion to suppress.

The State presented evidence that the police did not attempt to coerce a statement, nor did the Appellant display a lack of lucidity or drug-induced behavior. Appellant's verbal statements, spoken in Spanish, were memorialized in English by one detective; and the testimony was then re-affirmed by another officer. This second officer would orally translate the written English statements into Spanish for Appellant's benefit.

Appellant's third statement to the police was made after being placed under arrest, due to the unexplained injuries revealed in the autopsy. This last statement began by stating she loved her child very much, but had problems and needed help. Appellant revealed that when the victim had cried three days prior, on Monday, March 6, 2000, she had "slapped him on the back of the head." Appellant continued that on Wednesday, March 8, 2000, she had struck the infant on the mouth "like a karate chop." On the day of Jose Jr.'s death, Thursday, March 9, 2000, Appellant offered an admission that when the child began crying after finishing his bottle and lentils, she had placed her hand over the victim's mouth and kept it there for "one or two minutes." Appellant then testified that the child stopped crying and "he fell asleep." These statements were provided by Appellant prior to trial and read into the record by Detective Andrea Baca, as part of her testimony as the investigating officer. The detective was cross-examined on the content of Appellant's statements.

Chief Medical Examiner for El Paso County, Dr. Juan Contin, performed the first autopsy upon Jose Jr. He provided expert medical opinion that indicated he found evidence on the child's corpse that would be consistent with the actions stated in the third confession, specifically, cerebral swelling or edema and aspirated food into the lungs. He stated cause of death as asphyxiation as a result of suffocation. On cross-examination, Dr. Contin testified that Jose Jr.'s head injuries constituted serious bodily injury. On redirect examination, the physician clarified that the brain swelling was consistent with asphyxiation resulting from covering an individual's mouth and nose.

A second expert witness, Dr. Harry Lee Wilson, a pediatric pathologist at Providence Hospital testified. His testimony corroborated the findings of Dr. Contin. To refute the State's expert witness testimony, the defendant brought forth two expert witnesses: Dr. Gretchen Lipke and Dr. Fausto Rodriguez. This was followed by the testimony of the Appellant.

During trial, Appellant was asked by the prosecutor whether she had made statements to her husband, which threatened the life of the child. Appellant denied making any such statement. Appellant's counsel objected, requested a jury instruction to disregard and moved for mistrial. The trial court sustained the objection, provided the requested instruction, and denied the motion for mistrial. The court then provided curative instruction to the jury as follows:

As I explained to you in the beginning of the trial, when I sustain an objection, that means you are not allowed to consider what answers have come immediately before. You are instructed to disregard the question and the answer. Continue.

 

The record shows there was no pre-trial motion in limine concerning the allegation. The trial record is absent any warning from the judge or admonishment of the State for this line of questioning or any other conduct through the proceedings. The State in its closing argument never again makes reference to the statements in question. The jury returned a verdict of guilt for the offense of capital murder. The court subsequently imposed a sentence of life imprisonment.

II. DISCUSSION

In Issue No. One, Appellant asserts that the trial court erred in failing to suppress Appellant's three statements. The standard for reviewing a trial court's ruling on a motion to suppress is bifurcated, giving almost total deference to a trial court's determination of historical facts and reviewing de novo the trial court's application of the law. Guevara v. State, 97 S.W.3d 579, 582 (Tex. Crim. App. 2003)(citing Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim. App. 1997)). Addressing first the issue of facts, this "almost total deference" to a trial court's determination is because of the trial court's exclusive fact-finding role, and the trial court is in an appreciably better position to decide the issue. See Guzman, 955 S.W.2d at 89. This appellate court must leave any factual controversy within the realm of the trial court. This appellate court must view the record evidence and all reasonable inferences in the light most favorable to the trial court's ruling. Romero v. State, 800 S.W.2d 539, 543 (Tex. Crim. App. 1990).

Now turning to the second prong, appellate review of "mixed questions of law and fact" is de novo. See Guzman, 955 S.W.2d at 89. To determine whether a trial court's decision is supported by the record, this court considers evidence adduced at the suppression hearing, because the ruling was based on that evidence, rather than evidence introduced later. See, e.g., Hardesty v. State, 667 S.W.2d 130, 135 n.6 (Tex. Crim. App. 1984). However, this rule is inapplicable where the suppression has been "consensually re-litigated" by the parties during trial on the merits. See, e.g., Rachal v. State, 917 S.W.2d 799, 809 (Tex. Crim. App. 1996). "Where the State raises the issue at trial either without objection or with subsequent participation in the inquiry by the defense, the defendant has made an election to re-open the evidence." Id.

The trial judge is the sole and exclusive trier of fact and judge of the credibility of the witnesses and their testimony. Maxwell v. State, 73 S.W.3d 278, 281 (Tex. Crim. App. 2002). At the pre-trial hearing on the suppression of the statements, testimony established that during the time of the admissions by Appellant, there were no difficulties conversing with her in Spanish. After each of the three statements was taken, the statementswere read back to the Appellant in Spanish. These witnesses testified to the ability and opportunity of the Appellant to correct any of her three statements. This Court cannot determine whether the Appellant or the police officer's testimony is to be given more weight as to admissibility; that is a question to be answered by the trial court. See Bradley v. State, 960 S.W.2d 791, 800 (Tex. App.-- El Paso 1997, pet. ref'd)(holding that on a motion to suppress evidence, the trial judge is the sole and exclusive trier of fact and judge of the credibility of witnesses, including the weight to be given their testimony).

After thoroughly examining the record, we find that Appellant was able to respond to questions in a knowing and intelligent manner. Further, Appellant was given the opportunity to correct her written statements throughout the process. Additionally, in reviewing Appellant's testimony given at trial, via an interpreter, she demonstrated her ability to correct inaccurate statements by both her attorney, (1) and the prosecution. (2) It is clear from the record that Appellant was able to provide all testimony both knowingly and intelligently. The United States Constitution declares that "No person . . . shall be each compelled to give evidence against himself." U.S. Const. Amend. V. Additionally, the Texas Constitution commands that a person "shall not be compelled to give evidence against himself." Tex. Const. art. I 10. However, this right is not self-executing and may be waived if done, knowingly, voluntarily, and intelligently. See Brown v. State, 617 S.W.2d 234, 236 (Tex. Crim. App. 1981). A waiver of the right against self-incrimination is determined from the totality of the circumstances. Castro v. State, 562 S.W.2d 252, 258 (Tex. Crim. App. 1978).

By reviewing the totality of the record, we find that the Appellant was Mirandized, not once or twice, but three separate times, each in her native language prior to each admission.

An accused under the compulsion to make disclosures must assert the right against self-incrimination in a timely manner or consider that right waived. United States v. Kordel, 397 U.S. 1, 10, 90 S. Ct. 763, 768, 25 L. Ed. 2d 1, 9 (1970). Appellant could have invoked such a right, but because she chose to give evidence against herself, she cannot now complain. See id. She was not, within the record presented, compelled to testify. However, there are exceptions to the self-execution of the right against self-incrimination and one of those is found within the custodial setting. See Miranda v. Arizona, 384 U.S. 436, 467, 86 S. Ct. 1602, 1624, 16 L. Ed. 2d 694, 719 (1966). Since the record establishes that Appellant received notice that her statements may be used against her, in accordance with Miranda and Tex. Code Crim. Proc. Ann. art. 38.22 2(b) (Vernon 1979) there is no such exception available to her.

Appellant was further advised that statements she made may be used against her prior to her three admissions; she received a Miranda Card, written in Spanish and which was read to her, followed by her reading the Miranda warning back to the investigating officer. Appellant was further advised of her rights a fourth time by a magistrate after her third statement.

 

It is clear from the totality of the circumstances, the repetition provided by the police in alerting and reminding Appellant of her rights against self-incrimination before and while in the custodial setting, the safeguards mandated in Miranda v. Arizona, supra were more than satisfied. A waiver is sufficient if the accused understands that he or she has the right to remain silent and that anything he or she says can be used against him or her. See Colorado v. Spring, 479 U.S. 564, 574, 107 S. Ct. 851, 857-58, 93 L. Ed. 2d 954, 966 (1987). Finally, Appellant mistakenly asserts that Tex. Code Crim. Proc. Ann. art 38.22 1 (Vernon 2002) (3) indicates the confessions were inadmissable because the confessions were not witnessed by "a person other than a peace officer." We find reliance on the statute misplaced. The basic rules for statutory interpretation require that effect be given to all words and phrases unless to do so would lead to absurd results which the legislature could not possibly have intended. Hayden v. State, 66 S.W.3d 269, 278 (Tex. Crim. App. 2001)(citing Boykin v. State, 818 S.W.2d 782, 785 (Tex. Crim. App. 1991)). We first give effect to the plain meaning of the statute, and "where the statute is clear and unambiguous, the Legislature must be understood to mean what it has expressed, and it is not for the courts to add or subtract from such a statute." Id. at 278-79. The plain meaning would indicate that if the signatory was unable to affix his or her name to the statement; and in lieu, a mark was needed. In such case, "a person other then a peace officer" would have to witness the marking. For these reasons, Appellant's Issue No. One is overruled.

In Issue No. Two, Appellant contends prosecutorial misconduct was committed by the prosecution. During trial, a State's witness was prepared to introduce testimonial evidence concerning an alleged threat against the life of the child by the Appellant to her husband. Prior to the introduction of any of this testimony, Appellant objected and voir dire was conducted on its admissibility. The trial court found that the evidence was inadmissable. The witness was then excused and the jury was summoned. The prosecution later posed a question to the Appellant, as to whether she made an alleged statement, which threatened the life of the victim. Appellant once again objected, requested a jury instruction to disregard and moved for mistrial.

Claims of prosecutorial misconduct are determined on a case-by-case basis. Perkins v. State, 902 S.W.2d 88, 96 (Tex. App.--El Paso 1995), supplemented, 905 S.W.2d 452 (Tex. App.--El Paso 1995, pet. ref'd)(citing Stahl v. State, 749 S.W.2d 826, 830 (Tex. Crim. App. 1988). Cases in which courts have found prosecutorial misconduct have occurred generally when the prosecutor deliberately violated an expressed order of the court and the conduct was so blatant as to border on contempt of court. Stahl v. State, 749 S.W.2d at 831. Appellant must preserve error by (1) making a timely and specific objection, (2) requesting an instruction that the jury disregard the matter, and (3) move for a mistrial. Tex. R. App. P. 33.1; Cook v. State, 858 S.W.2d 467, 473 (Tex. Crim. App. 1993). In the case at bar, Appellant preserved such error. Appellant began by objecting, and requesting a jury

instruction.

The trial court responded by first sustaining the objection. The trial court then provided curative instruction to the jury, explaining that when an objection is sustained the question offered by the prosecution was to be disregarded. An instruction to disregard will be presumed effective unless the facts of the case suggests the impossibility of withdrawing the impression produced on the minds of the jury. Waldo v. State, 746 S.W.2d 750, 754 (Tex. Crim. App. 1988).

Appellant also moved for mistrial. The denial or granting of mistrial is reviewed under an abuse of discretion standard. Rojas v. State, 986 S.W.2d 241, 250 (Tex. Crim. App. 1998). Equally important is that a trial court abuses its discretion if it grants mistrial despite the availability to cure the defect through a less drastic means. Brown v. State, 907 S.W.2d 835, 839 (Tex. Crim. App. 1995). Generally, a mistrial is only required when the improper evidence is "clearly calculated to inflame the minds of the jury and is of such a character as to suggest the impossibility of withdrawing the impression produced on the minds of the jury." See Hinojosa v. State, 4 S.W.3d 240, 253 (Tex. Crim. App. 1999)(quoting Gonzales v. State, 685 S.W.2d 47, 49 (Tex. Crim. App. 1987))(emphasis added). In all other situations, the jury is presumed to follow the trial court's motion to disregard improperly admitted evidence. Hinojosa, 4 S.W.3d at 253.

In review, the record is devoid of the prosecution violating an order from the trial court, nor can the prosecution's conduct be viewed as contumacious. While the record reflects that prosecution attempted to introduce evidence on two separate occasions with two different witness, in each case Appellant's objections were sustained and inquiry into admissibility occurred outside the presence of the jury. In the first case, no statement as to the substance of the statement was introduced into evidence. In the second occurrence, the jury received appropriate curative instructions to disregard the question from the prosecution. We find that the trial court did not abuse its discretion by sustaining the objection of Appellant, providing curative instruction and denying the motion for mistrial. Appellant's Issue No. Two is overruled.

Having overruled each of Appellant's issues on review, we affirm the judgment of the trial court.

July 31, 2003

_______________________________________

RICHARD BARAJAS, Chief Justice

 

Before Panel No. 2

Barajas, C.J., McClure, and Chew, JJ.

 

(Do Not Publish)

1. See e.g., Appellant was asked by her attorney whether she was married to Jose Gutierrez, Sr.; she corrected that presumption and clarified that he was the child's father. Later, Appellant was asked whether her two older children were going to school; she defined that one was going to school and the other stayed home with her. .

2. See e.g., Appellant was asked whether a certain police officer read her statements back to her; she distinguished that she did not know the police officer by name, but that it was the officer present in court the previous day of trial. Later, Appellant was asked whether she had patted and burped the victim; she clarified that she patted the baby, but did not remember whether or not he had burped.

3. Tex. Code Crim. Proc. Ann. art. 38.22 1 (Vernon 2002). In this article, a written statement of an accused means a statement signed by the accused or a statement made by the accused in his own handwriting or, if the accused is unable to write, a statement bearing his mark, when the mark has been witnessed by a person other than a peace officer.