Sanchez, Roberto v. The State of Texas--Appeal from 209th District Court of Harris County

Affirmedand Memorandum Opinion filed July 24, 2003.

In The

Fourteenth Court of Appeals

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NO. 14-02-00144-CR

NO. 14-02-00145-CR

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ROBERTO SANCHEZ, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 209th District Court

Harris  County, Texas

Trial Court Cause Nos. 863,352 & 863,351

M E M O R A N D U M O P I N I O N

Appellant, Roberto Sanchez, was convicted by a jury of murder and aggravated assault and sentenced to 50 and 15 years= imprisonment, respectively. In two points of error, appellant claims the trial court erred in denying his motion to suppress statements obtained during custodial interrogation because (1) they were obtained in violation of the Vienna Convention on Consular Relations and (2) the statements were involuntary.

Appellant was first observed running and looking over his shoulder by off-duty police officer R.J. De La Cruz. At the same time, Officer De La Cruz received a police broadcast regarding a shooting at a nearby location. A police dog was summoned and subsequently pulled the appellant out from underneath a house where he was hiding. The dog tore appellant=s shirt and inflicted several bites. Appellant was transported to police headquarters where he was interrogated by Houston Police Sergeant Xavier Avila.

Avila is assigned to the Homicide Chicano Squad and speaks Spanish fluently. Upon arrival to the interrogation, Avila noticed appellant had no shirt and offered his own for appellant to wear. Avila also retrieved coffee for appellant. He testified appellant did not request any medical treatment or appear to be in pain. Speaking in Spanish, Avila notified appellant of his rights, including the right to remain silent and to an attorney. Appellant indicated his understanding of these rights by initialing a Miranda rights card provided for him in English and in Spanish. Appellant subsequently admitted to shooting at the complainants.

Trial counsel filed two motions to suppress claiming the statements were made involuntarily and in violation of the Vienna Convention. The trial court denied these motions and allowed appellant=s statements into evidence. This appeal followed conviction.

In reviewing the trial court=s decision on a motion to suppress, if the appellant alleges error in the application of the law to the facts, our review is de novo. See Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim. App. 1997). Here, appellant argues that the Court of Criminal Appeals erroneously decided Rocha v. State and asks this court to exclude his confession as a violation of the Vienna Convention. 16 S.W.3d 1, 13 (Tex. Crim. App. 2000). We decline to do so. A>The Vienna Convention on Consular relations grants a foreign national who has been arrested, imprisoned or taken into custody a right to contact his consulate and requires the arresting government authorities to inform the individual of this right >without delay.==@ Id. at 13 (quoting Maldonado v. State, 998 S.W.2d 239, 246-47 (Tex. Crim. App. 1999) (citing Vienna Convention on Consular Relations, April 24, 1963, art. 36(1)(b), 21 U.S.T., 77, 100-101, 595 U.N.T.S. 261, 292 (ratified by the United States on Nov. 24, 1969)).

The Texas Court of Criminal Appeals has ruled the article 38.23(a) exclusionary rule of the Texas Code of Criminal Procedure does not apply to violations of treaties. Rocha, 16 S.W.3d at 18-19; Perez v. State, 25 S.W.3d 278 (Tex. App.CSan Antonio 2000, no pet.). Furthermore, the court concluded, in the absence of contrary instruction from the United States Supreme Court, neither would it enforce Vienna Convention violations under the federal exclusionary rule. Rocha, 16 S.W.3d at 19; Sifuentes v. State, 29 S.W.3d 238, 243 (Tex. App.CAmarillo 2000, no pet.). Therefore, even if Sanchez=s rights under the Vienna Convention were violated, the trial court was correct to deny the motion to suppress. See Perez, 25 S.W.3d at 279-80.

Appellant further contends that the statements should have been suppressed because they were made involuntarily. We find no substantiation for this claim. The trial court is the sole judge of the weight and credibility of the evidence, and the trial court=s finding may not be disturbed on appeal absent a clear abuse of discretion. Miniel v. State, 831 S.W.2d 310, 315 (Tex. Crim. App. 1992). A statement is involuntary only if there was official, coercive conduct of such a nature that any statement obtained thereby was unlikely to have been the product of an essentially free and unconstrained choice by its maker. Alvarado v. State, 912 S.W.2d 199, 211 (Tex. Crim. App. 1995). AAbsent [coercive] police conduct causally related to the confession, there is simply no basis for concluding that any state actor has deprived a criminal defendant of due process of law.@ Id. (quoting Colorado v. Connelly, 479 U.S. 157, 164 (1986)).

The record indicates no coercion by Officer Avila. To the contrary, the record reflects the officer went out of his way to make appellant comfortable. Appellant=s rights were read to him in Spanish and he understood each, indicating his comprehension both orally and in writing. Appellant claims the officer failed to notify him of his right to contact the Mexican Consulate. However, as previously stated, Texas courts have declined to make this an interrogation requirement. Therefore, appellant=s second point of error is overruled.

We affirm the trial court=s judgment.

/s/ Leslie Brock Yates

Justice

Judgment rendered and Memorandum Opinion filed July 24, 2003.

Panel consists of Justices Yates, Hudson, and Frost.

Do Not Publish CTex. R. App. P. 47.2(b).