Resendez, Angel v. The State of Texas--Appeal from 182nd District Court of Harris County

State=s Motion for Rehearing Overruled; Reversed and Remanded; Opinion of November 28, 2006 Withdrawn and Substitute Majority and Concurring Opinions filed August 30, 2007

State=s Motion for Rehearing Overruled; Reversed and Remanded; Opinion of November 28, 2006 Withdrawn and Substitute Majority and Concurring Opinions filed August 30, 2007.

In The

Fourteenth Court of Appeals

____________

NO. 14-05-00098-CR

____________

ANGEL RESENDEZ, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 182nd District Court

Harris County, Texas

Trial Court Cause No. 960,399

S U B S T I T U T E M A J O R I T Y O P I N I O N

We overrule the State=s motion for rehearing, withdraw our previous opinion, and issue this substitute opinion in its place.

Appellant, Angel Resendez, pleaded guilty to the murder of Amanda Garza, and the trial court assessed punishment at ninety-nine years= confinement in the Texas Department of Criminal Justice, Institutional Division. Appellant appeals his conviction in one point of error. He asserts the trial court abused its discretion by denying the motion to suppress his unwarned videotaped confession to murder. The issue in this case is whether appellant was in custody during his interrogation on September 2, 2003, thus triggering his right to Miranda[1]warnings. Because we conclude appellant was in custody, we reverse and remand for a new trial.

Factual and Procedural Background

On August 30, 2003, appellant and a group of friends, including complainant Amanda Garza, drank a considerable amount of alcohol at a nightclub. That night, after the nightclub closed, the group went to a hotel and continued drinking. Appellant called his friend, Steve Perez, because appellant and Garza needed a ride home.[2] By the time Perez arrived, Garza was extremely intoxicated and got into the backseat of Perez=s car. Perez asked appellant for permission to have sex with Garza, and appellant approved. Perez asked appellant to drive them to appellant=s house, and then Perez would take Garza home. Perez then climbed into the backseat and proceeded to have sex with Garza. After several minutes, Garza began screaming and striking Perez, and she told appellant to pull over and let her out, which he did. By this time, appellant was near his home. Garza got out of the car, began to walk away, and shouted obscenities at Perez, threatening to report the assault to the police.

The exact sequence of events following Garza=s exit from the vehicle is unclear because appellant gave two different statements to police regarding the events that evening. In the first statement, appellant claimed he insisted on walking Garza to his home, but Perez did not want her to tell anyone what happened. Perez followed appellant and Garza in the car for a few feet, got out of the car, and shot Garza once in the head. Perez threatened to shoot appellant and told appellant to get in the car. Perez then shot Garza three more times. Appellant claimed to have no prior knowledge of a gun in the car. In the second statement, however, appellant claimed he did know about the gun because Perez told appellant to remove the gun from the glove compartment and place it under the seat, so that if they were stopped by police on the way home, the police would not see the gun when they retrieved their proof of insurance. In the second statement, appellant described his actions after Garza got out of the car: he got angry; Afreaked;@ grabbed the gun from under the seat; and shot Garza once in the head. Perez then took the gun from appellant and shot Garza three more times. Appellant later claimed he changed his story the second time because he was being threatened by Perez and Perez=s friends and thought that if he took partial responsibility for what happened, his family would be protected.

Appellant gave his first videotaped statement on August 31, 2003. Prior to this first videotaped statement, police gave appellant Miranda warnings. After the first statement, appellant agreed to stage a recorded phone conversation with Perez.[3] Police then became suspicious of appellant=s involvement because Perez implicated appellant in the shooting. On September 2, appellant agreed to take a polygraph test, which he took and failed. At this point, he was questioned and videotaped a second time, and he eventually confessed to shooting Garza with the first of the four shots fired. During the second videotaped statement, appellant was not given any Miranda warnings. Appellant was arrested sometime later that day for Garza=s murder.

Appellant twice moved to suppress his second unwarned statement, once on September 19, 2003, and again on October 29, 2004. After filing the second motion to suppress but before his trial, appellant testified against Perez at Perez=s trial on November 3, 2004. Appellant testified about what he said to police in his two statements. Appellant testified that the reason he changed his story and admitted shooting Garza was because he felt threatened by Perez, but his first statement was factually correct.

At the suppression hearing on November 8, appellant argued his second statement should be suppressed because it was not given voluntarily and police did not give him Miranda warnings preceding a custodial interrogation. The State argued in response that Miranda warnings were not required because the interrogation was not custodial, and the statement was given voluntarily. Perez=s and appellant=s trials both took place in the same trial court and were presided over by the same judge. At appellant=s suppression hearing, the trial court took judicial notice of appellant=s testimony in Perez=s trial, specifically that he did not hear appellant testify the statement was not given voluntarily. The trial court denied appellant=s motion to suppress. Appellant then pleaded guilty and agreed to a pre-sentence investigation (PSI). After reviewing the results of the PSI and victim impact testimony, the trial court assessed punishment at ninety-nine years= confinement.

Discussion

I. Waiver

As a preliminary matter, the State contends appellant waived his right to appeal the trial court=s denial of the motion to suppress appellant=s second videotaped statement when appellant pleaded guilty. We disagree. Both bargaining and non-bargaining defendants can appeal rulings on written, pre-trial motions and jurisdictional issues. Monreal v. State, 99 S.W.3d 615, 620 (Tex. Crim. App. 2003); see Tex. R. App. P. 25.2. A valid waiver of appeal, whether negotiated or non-negotiated, will prevent a defendant from appealing without the consent of the trial court. Monreal, 99 S.W.3d at 622. In determining whether defendants should be bound to their waivers of appeal, a court first must determine whether the waiver is valid, which requires a finding that the waiver was knowingly, voluntarily, and intelligently made. Id. at 621. However, a waiver of a right to appeal is invalid, and therefore not made knowingly, voluntarily, and intelligently, if it is entered before the defendant is aware of the consequence of his plea. See Tufele v. State, 130 S.W.3d 267, 270 (Tex. App.CHouston [14th Dist.] 2004, no pet.).

Here, appellant twice filed a written pre-trial motion to suppress his second videotaped statement. After the trial court denied appellant=s motion, appellant pleaded guilty. When making his plea, appellant signed a plea form which purportedly waived his right to appeal. The context of that form implies there was an agreement as to punishment, which there clearly was not; rather, appellant only agreed to have punishment evidence presented to the trial court via a PSI report. Further, the trial court certified appellant=s right to appeal and noted this is not a plea bargain case. See Alzarka v. State, 90 S.W.3d 321, 324 (Tex. Crim. App. 2002) (holding a trial court that certifies a defendant=s right to appeal directly contradicts and rebuts any presumption raised by the terms of the boiler-plate language in a plea form signed by the defendant and reflects the defendant did not waive appeal). Appellant did not knowingly, voluntarily, and intelligently waive his right to appeal because punishment had not yet been assessed. Thus, appellant has not waived his right to appeal the point of error he raises in this appeal.

 II. Miranda Warnings Required During Custodial Interrogation

In appellant=s argument on the merits, he contends the trial court erred in denying his motion to suppress his second videotaped statement. Appellant makes multiple arguments in support of his contention.

A. Standard of Review

When reviewing a trial court=s suppression ruling, we give almost total deference to the trial court=s determination of historical facts that the record supports. Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim. App. 1997). We afford the same degree of deference to a trial court=s ruling on mixed questions of law and fact when the resolution of the ultimate question turns on an evaluation of credibility and demeanor of witnesses. Id. We review de novo mixed questions of law and fact when the resolution of the issue does not turn on an evaluation of credibility and demeanor. Id. During a suppression hearing, the trial court is the sole judge of the credibility of witnesses and the weight to be given their testimony. Wyatt v. State, 23 S.W.3d 18, 23 (Tex. Crim. App. 2000). We must sustain the trial court=s ruling if it is reasonably supported by the record and is correct on any theory of law applicable to the case. Villareal v. State, 935 S.W.2d 134, 138 (Tex. Crim. App. 1996).

We will not disturb the trial court=s findings if they are supported by the record. Id. If the trial court does not make explicit findings of fact, we will assume the trial court made implicit findings of fact that support its ruling as long as those findings are supported by the record. Montanez v. State, 195 S.W.3d 101, 106 (Tex. Crim. App. 2006).

During the suppression hearing, appellant=s counsel argued to the trial court appellant may have voluntarily gone to the police station to talk to police, but at some point while there, his interrogation turned custodial and was no longer voluntary, requiring police to give appellant Miranda warnings. Appellant=s counsel argued that after appellant took and failed a polygraph examination, he was interrogated at some length. Then, appellant and police moved to another room where the second videotaped statement was made, which appellant contends only contains questions geared toward verifying the earlier confession. The parties then argued to the trial court whether it should consider appellant=s prior testimony in Perez=s trial, specifically where the prosecutor asked appellant if his statement was given freely and voluntarily, whether he was shown the exit door of the room, or whether he was offered drinks or coerced by police. The trial court took judicial notice of appellant=s testimony from Perez=s trial and made it part of the record in this case. No further discussion occurred about the statement allegedly given during the period in between the polygraph examination and the second videotaped statement, and no other evidence was admitted during the hearing. The trial court denied the motion to suppress, stating it did not recall hearing any testimony by appellant that his confession was not voluntarily made.

B. Judicial Notice of Prior Testimony

In the issue raised before this court, neither party addresses in their appellate briefs whether the trial court=s decision to take judicial notice of appellant=s prior testimony in Perez=s trial was appropriate. The parties only ask this court to consider whether appellant=s confession was voluntary or custodial without regard to Miranda warnings. Because no other evidence was admitted at the suppression hearing, we first consider whether the trial court correctly took judicial notice of appellant=s prior testimony.[4]

During the suppression hearing, the trial court declared it was using appellant=s prior testimony in Perez=s trial to rule on whether to grant or deny appellant=s motion to suppress. The parties presented no other evidence at the hearing. During Perez=s trial, appellant was only partially represented by counsel, and from the record of his testimony at the prior proceeding, which was included in our appellate record, appellant would not re-enter the courtroom after a break in testimony because his counsel was not present. The trial court then instructed the bailiff to bring appellant into the courtroom to continue his testimony regardless of whether his trial counsel was present because appellant was a witness during that proceeding. Appellant did not make a complaint on the record at Perez=s trial or during his trial for this offense, but that decision by the trial court, coupled with the court=s decision to take judicial notice of the same testimony, is problematic.

Texas Rule of Evidence 201 governs the trial court=s ability to take judicial notice of adjudicative facts not subject to reasonable dispute. See Tex. R. Evid. 201(b); Garza v. State, 996 S.W.2d 276, 279 (Tex. App.CDallas 1999, pet. ref=d). A judicially noticed fact is not subject to reasonable dispute if it is either (1) generally known within the territorial jurisdiction of the trial court or (2) capable of accurate and ready determination by resorting to resources whose accuracy cannot reasonably be questioned. Tex. R. Evid. 201(b). A trial court may take judicial notice of its own orders, records, and judgments rendered in cases involving the same subject matter and between practically the same parties. Wilson v. State, 677 S.W.2d 518, 523 (Tex. Crim. App. 1984). A court, however, may not take judicial notice of records of another court. Turner v. State, 733 S.W.2d 218, 222 (Tex. Crim. App. 1987). We decide this issue based on whether appellant=s prior testimony was capable of accurate and ready determination by resorting to resources whose accuracy cannot reasonably be questioned. We make this determination in light of the trial court=s pronouncement that it did not hear appellant, during his prior testimony, deny the fact that his second statement was voluntary.

The issue of whether it is appropriate for a trial court to take judicial notice of testimony from another defendant=s criminal trial in order to resolve an issue in a later trial is complex. The Dallas Court of Appeals held in Garza v. State that a trial court erred when taking judicial notice of testimony from a co-defendant=s separate trial, which was used to determine whether evidence in the defendant=s trial was admissible, because the facts judicially noticed were not capable of accurate and ready determination. 996 S.W.2d at 279B80. In Garza, the facts judicially noticed were vigorously disputed by the defendant at his trial. Id. at 280. Judicial notice of facts should be justified by a high degree of indisputability, and because the facts at issue here were not of that character, the trial court erred in taking judicial notice of the testimony from which those facts were derived. See id.

Assertions made by an individual, even under oath, are generally not the type of facts capable of accurate and ready determination by a source whose accuracy cannot reasonably be questioned. Id. at 279B80. The facts necessary to support a motion to suppress evidence are not facts a trial court should judicially notice. See Alvarez v. State, No. 03-01-00532-CR, 2002 WL 463278, at *1 n.1 (Tex. App.CAustin March 28, 2002, pet. ref=d) (not designated for publication) (reasoning in part facts necessary to support a motion to suppress evidence should be easily determinable with certainty). While a court may take judicial notice of the existence of the testimony in a co-defendant=s trial, a court may not take judicial notice of the truth of the factual content of that testimony because its accuracy can reasonably be questioned. See Jackson v. State, 139 S.W.3d 7, 21 (Tex. App.CFort Worth 2004, pet. ref=d) (holding a court may judicially notice the existence of an affidavit in its file, but it may not take judicial notice of the truth of the factual contents contained therein). In fact, an outcome of the suppression hearing should have been a determination of the facts and circumstances surrounding appellant=s second videotaped statement to police, and had the court made such a determination, that determination would have shed light on the accuracy of the factual content of appellant=s prior testimony. Moreover, a fact is not capable of accurate and ready determination simply because a trial judge remembers a witness testified to the fact at trial. Garza, 996 S.W.2d at 280 (citing Wilson v. State, 677 S.W.2d 518, 524 (Tex. Crim. App. 1984) (holding the Afunction of judicial notice is not coextensive with the personal knowledge of the individual judge@)). Similarly in a civil context, this court has held prior testimony may not be used in a later trial unless that testimony is admitted into evidence at the later trial. Villarreal v. Sw. Distrib. Co., No. 14-95-00135-CV, 1996 WL 460195, at *2 (Tex. App.CHouston [14th Dist.] Aug. 15, 1996, no writ) (not designated for publication); Traweek v. Larkin, 708 S.W.2d 942, 946B47 (Tex. App.CTyler 1986, writ ref=d n.r.e.) (rejecting trial court=s judicial notice of testimony from another trial).

Here, the facts the trial court utilized to determine whether appellant=s second statement was made while he was in custody are disputed by appellant. Contrary to the State=s assertion on rehearing, appellant did not treat his prior testimony as if it had been admitted into evidence in this case, and appellant did in fact object to the trial court=s taking

judicial notice of his prior testimony.[5] The testimony the trial court judicially noticed was inherently swayed towards the viewpoint of opposing parties at Perez=s trial. At Perez=s trial, appellant was questioned by the prosecutor, who was the same prosecutor trying appellant=s case. Appellant was also questioned by Perez=s attorney, who, of course, was seeking to present appellant=s testimony in a light most favorable to Perez. Appellant did not have an opportunity to present the facts in the light most favorable to himself at Perez=s trial.

Appellant=s prior testimony did not contain adjudicative facts capable of accurate and ready determination that may have been used by the trial court to decide whether appellant=s second statement was voluntary or whether appellant was in custody and Miranda warnings were required. For the reasons stated, we hold the trial court erred in taking judicial notice of appellant=s testimony at Perez=s trial for the purpose of ruling on appellant=s motion to suppress.

C. Custodial Interrogation

Appellant argues that he was in custody when his second videotaped statement was made, and therefore, the police were required to give him Miranda warnings. See Miranda v. Arizona, 384 U.S. 436, 444, 86 S. Ct. 1602, 1612, 16 L. Ed. 2d 694 (1966). Article 38.22 of the Texas Code of Criminal Procedure prohibits the use of an oral statement of an accused made as a result of custodial interrogation unless an electronic recording is made of the statement, Miranda warnings are given, and the accused knowingly, intelligently, and voluntarily waives any rights set out in the warnings. Tex. Code Crim. Proc. Ann. art. 38.22 ' 3(a)(1)B(2) (Vernon 2005). No warnings are found anywhere in the transcript of appellant=s second videotaped statement, and the State concedes no warnings were given. Therefore, the admissibility of appellant=s second statement rests upon whether all or part of the second interview was a custodial interrogation.

A person is in Acustody@ if, under the circumstances, a reasonable person would believe that his freedom of movement was restrained to the degree associated with a formal arrest. Dowthitt v. State, 931 S.W.2d 244, 254 (Tex. Crim. App. 1996). The Areasonable person@ standard presupposes an innocent person. Id. Moreover, the subjective intent of law enforcement officials to arrest is irrelevant unless that intent is somehow communicated or otherwise manifested to the suspect. Id. The Court of Criminal Appeals has recognized four factors relevant to determining custody:

(1) probable cause to arrest,

(2) subjective intent of the police,

(3) focus of the investigation, and

(4) subjective belief of the defendant.

Id. However, under Stansbury v. California, 511 U.S. 318, 321B24, 114 S. Ct. 1526, 1528B30, 128 L. Ed. 2d 293, 298B99 (1994), factors (2) and (4) have become irrelevant except to the extent that they may be manifested in the words or actions of law enforcement officials. Dowthitt, 931 S.W.2d at 254. The custody determination must be made on an ad hoc basis, after considering all of the objective circumstances. Id. at 255. Station house questioning does not, in and of itself, constitute custody. Id. Further, custody does not occur merely because the suspect submits to and fails a polygraph test. Id. However, the mere fact that an interrogation begins as noncustodial does not prevent custody from arising later; a consensual inquiry can escalate into custodial interrogation. Id.

The Court of Criminal Appeals has outlined at least four general situations which may constitute custody: (1) when the suspect is physically deprived of his freedom of action in any significant way, (2) when a law enforcement officer tells the suspect that he cannot leave, (3) when law enforcement officers create a situation that would lead a reasonable person to believe that his freedom of movement has been significantly restricted, and (4) when there is probable cause to arrest and law enforcement officers do not tell the suspect that he is free to leave. Id. Concerning the first three situations, Stansbury teaches that the restriction upon freedom of movement must amount to the degree associated with an arrest as opposed to an investigative detention. Concerning the fourth situation, Stansbury instructs that the officers= knowledge of probable cause be manifested to the suspect. Id. Such manifestation can occur if information substantiating probable cause is related by the suspect to the officers. Id. Furthermore, situation four does not automatically establish custody; rather, custody is established if the manifestation of probable cause, combined with other circumstances, would lead a reasonable person to believe that he is under restraint to the degree associated with an arrest. Id.

Our custody analysis begins with a review of the objective circumstances. The complainant Amanda Garza was killed and found dead in the early morning hours of Sunday, August 31, 2003. The complainant was last seen with appellant and Perez shortly before she was killed. The complainant=s body was found near appellant=s home. On the day the complainant was killed, police officers located appellant and asked to speak with him. Appellant agreed and gave his first statement that he was present with Perez when Perez shot the complainant. After investigating appellant=s first statement, the police officers asked appellant to take a polygraph test, which he took and failed. The police officers then wanted to question appellant further. Appellant agreed and started answering questions again, in what became his second statement.

During this interrogation, appellant stated for the first time that he was the first one to shoot the complainant, firing at her one time. At no time during this interrogation did the law enforcement officers tell appellant that he was free to leave. The record reflects that the interrogation lasted twenty-three minutes and that the officers asked appellant if he wanted to use the restroom at the end of the interrogation. The State concedes on appeal that appellant was arrested shortly after this second interrogation during which he admitted shooting the complainant. Although not reflected by the record that was before the trial court when it ruled on the motion to suppress, appellant=s trial counsel conceded during the suppression hearing that appellant was offered something to drink.

During the second interrogation, appellant stated for the first time that he was the one who first shot the complainant. He did not assert that he shot the complainant accidentally or otherwise indicate facts that would arguably remove criminal liability. When appellant made these statements, there was probable cause to arrest appellant, yet the law enforcement officers did not tell appellant that he was free to leave. As noted by the Dowthitt court, the officers did not have to tell appellant that there was probable cause based on this statement by appellant; it is enough that the information substantiating probable cause is related by the suspect to the officers. Dowthitt, 931 S.W.2d at 255B57. Therefore, this case falls under the fourth situation described in Dowthitt. Id. (stating and holding that statements by suspect creating probable cause are sufficient to trigger the fourth situation, without requiring that officers advise the suspect they believe there is probable cause); Ruth v. State, 645 S.W.2d 432, 436 (Tex. Crim. App. 1979) (same); Xu v. State, 100 S.W.3d 408, 413B15 (Tex. App.CSan Antonio 2002, pet. ref=d) (same); Fielder v. State, 991 S.W.2d 70, 81B83 (Tex. App.CSan Antonio 1998, no pet.) (same); State v. Zamora, no. 14-96-00744-CR, 1997 WL 428470, at *2B4 (Tex. App.CSan Antonio July 23, 1997, no pet.) (same) (not designated for publication); contra State v. Rodriguez, 986 S.W.2d 326, 329 (Tex. App.CEl Paso 1999, pet. ref=d) (stating that suspect=s statements creating probable cause are not enough and requiring that law enforcement officers reveal to suspect that they have probable cause based on suspect=s statements).

Presuming for the sake of this analysis that appellant was innocent, he still knew that the complainant had been killed and found dead near appellant=s home, in the early morning hours of Sunday, August 31, 2003. The complainant=s dead body was found shortly after she was seen getting into a car with appellant and Perez. On the day the complainant was killed, police officers located appellant and asked to speak with him. Appellant gave his first statement that he was with Perez when Perez shot the complainant. After investigating appellant=s first statement, the police officers asked appellant to take a polygraph test, which he took and failed. Appellant then agreed to answer more questions, and during this second interrogation, appellant stated for the first time that he was the first one to shoot the complainant, shooting her one time. The existence of probable cause, the officer=s failure to tell appellant that he could leave, and these other circumstances would lead a reasonable person in appellant=s position to believe that he was under restraint to the degree associated with an arrest after admitting that he was the first one to shoot the complainant. See Dowthitt, 931 S.W.2d at 255B57 (holding that circumstances showed interrogation became custodial after appellant admitted he was present during the murders, giving rise to probable cause and citing favorably the Ruth court=s determination that the interrogation in Ruth had become custodial); Ruth, 645 S.W.2d at 436 (concluding that suspect=s statement to officer that he shot the complainant created probable cause and made the interrogation custodial from that point on); Xu, 100 S.W.3d at 413B15 (concluding that suspect=s statement to officer that he grabbed the complainantCwho had been strangledCby the throat created probable cause and made the interrogation custodial from that point on); Fielder, 991 S.W.2d at 81B83 (concluding that suspect=s agreement with officer=s description of events, which indicated that suspect murdered the complainant, created probable cause and made the interrogation custodial from that point on); Zamora, no. 14-96-00744-CR, 1997 WL 428470, at *2B4 (concluding that suspect=s statement that she shot the complainant created probable cause and made the interrogation custodial from that point on).

Because the interrogation of appellant was custodial from the point after which appellant admitted he shot the complainant, the trial court erred in denying appellant=s motion to suppress this part of appellant=s statement based on appellant=s failure to receive the required warnings from the law enforcement officers or waive his rights. See Tex. Crim. Proc. Code Ann. art. 38.22, ' 3; Ruth, 645 S.W.2d at 436; Xu, 100 S.W.3d at 413B15; see also Wilkerson v. State, 173 S.W.3d 521, 527 n.16 (Tex. Crim. App. 2005) (noting the purpose for the prophylactic measures mandated by Miranda was to mitigate the inherent coerciveness of station house interrogations).

Having determined that the trial court erred in denying appellant=s motion to suppress, we must decide whether this error is reversible. See Tex. R. App. P. 44.2. The error in this case violated appellant=s federal constitutional rights. See Xu, 100 S.W.3d at 415. Further, the Court of Criminal Appeals has stated that appellate courts are not to speculate as to an appellant=s reasons for pleading guilty or as to whether appellant would have pleaded guilty if a motion to suppress had been granted. See McKenna v. State, 780 S.W.2d 797,799B800 (Tex. Crim. App. 1989); Kraft v. State,762 S.W.2d 612, 613B15 (Tex. Crim. App. 1988). As long as the evidence that should have been suppressed Awould in any measure inculpate the accused,@ this court must presume that the trial court=s denial of appellant=s motion to suppress influenced appellant=s decision to plead guilty and is reversible error. See McKenna, 780 S.W.2d at 799B800; Kraft,762 S.W.2d at 613B15. Because some of the statements made by appellant after the interrogation became custodial were Ain any measure@ inculpatory, we presume the trial court=s erroneous denial of appellant=s motion to suppress influenced appellant=s decision to plead guilty. Therefore, the error is reversible.

Accordingly, we reverse the trial court=s judgment and remand for a new trial consistent with this opinion.

/s/ John S. Anderson

Justice

Judgment rendered and Substitute Majority and Concurring Opinions filed August 30, 2007.

Panel consists of Justice Anderson, Edelman and Frost. (Frost, J., concurring.)

Publish C Tex. R. App. P. 47.2(b).

[1] Miranda v. Arizona, 384 U.S. 436, 444, 86 S. Ct. 1602, 1612, 16 L. Ed. 2d 694 (1966).

[2] Perez was with the group at the club but did not make it to the hotel afterwards, either because he was tired or because he got separated from the group.

[3] The exact content of any audiotaped conversations and their value to police is unclear. Appellant claims he gave multiple tapes to police on which Perez admitted shooting Garza. The State alleges appellant turned over only one tape, which contains no clear admissions by Perez that would clear appellant of any involvement.

[4] Appellate courts in Texas have broad discretion to address unassigned error in criminal cases. Carter v. State, 656 S.W.2d 468, 469 (Tex. Crim. App. 1983). AOnce jurisdiction of an appellate court is invoked, exercise of its reviewing functions is limited only by its own discretion or a valid restrictive statute.@ Id.; see also Rezac v. State, 782 S.W.2d 869, 870 (Tex. Crim. App. 1990); Guardiola v. State, 20 S.W.3d 216, 224 (Tex. App.CHouston [14th Dist.] 2000, pet. ref=d) (addressing unassigned error where fundamental fairness and considerations of due process require the court to do so). An appellate court may be obligated to assign error and request briefing when addressing novel constitutional issues, but many, if not most, errors prompting sua sponte appellate attention need not be assigned. Pena v. State, 191 S.W.3d 133, 136 (Tex. Crim. App. 2006).

[5] We find the following statements by appellant=s trial counsel adequate to preserve error regarding the taking of judicial notice of appellant=s testimony at Perez=s trial:

[counsel]: Simply because Mr. Resendez testified at Mr. Perez= trial, I don=t think that we should be bootstrapped to say, therefore, the fact that you were not Mirandized[,] there may have been some question with regard to the voluntariness of your confession, therefore, we are simply going to overrule your motion and allow the confession in.

* * *

[The Court]: As I recall, I can take judicial notice. I tried the case. There was never any complaint that this defendant made on the stand or the officers that he had any problem with about any issue or whether he was there freely, voluntarily, they coerced him, threatened him or promised him anything. I didn=t hear any testimony of that whatsoever, so I will deny your Motion to Suppress Mr. Resendez= statement.

[counsel]: Just for purposes, obviously for the record, we will take exception for purposes of appeal on this.