Joshua Ramiro Perez v. The State of Texas--Appeal from 175th Judicial District Court of Bexar County

MEMORANDUM OPINION
No. 04-02-00822-CR
Joshua Ramiro PEREZ,
Appellant
v.
The STATE of Texas,
Appellee
From the 175th Judicial District Court, Bexar County, Texas
Trial Court No. 2002-CR-3796
Honorable James E. Barlow, Judge Presiding

Opinion by: Catherine Stone, Justice

Sitting: Catherine Stone, Justice

Paul W. Green, Justice

Karen Angelini, Justice

Delivered and Filed: November 5, 2003

AFFIRMED

A jury found appellant, Joshua Perez, guilty of murder and sentenced him to thirty years confinement in the Texas Department of Criminal Justice, Institutional Division, and fined him ten thousand dollars. On appeal, Perez contends the trial court abused its discretion in admitting his written statement, claiming there was neither a legal arrest warrant, a valid waiver of rights, nor a recording of the custodial statement. In addition, Perez challenges the legal sufficiency of the evidence under article 38.14 of the Texas Code of Criminal Procedure, claiming accomplice witness testimony was not corroborated. We affirm the trial court's judgment.

Background

On April 14, 2002, individuals parked outside the home of Rudy Montolvo and began shooting rapidly at the home, killing a child, Samuel Mendoza, who was inside the house. An arrest warrant was issued for Perez, whereupon Perez contacted the police and agreed to meet Detective John Marshall. Detective Marshall brought Perez to the homicide office and read him his rights from a San Antonio Police Department form. Perez signed the form indicating he understood his rights. Perez initially denied his involvement in the shooting, but after speaking with Detective Tim Angell, he agreed to give Detective Marshall a statement.

Perez filed a pre-trial motion to suppress his written statement, which the trial judge denied. During the trial, Perez's counsel reaffirmed his objection to the admission of the statement, but the trial judge overruled the objection and admitted the statement into evidence.

Admissibility of Written Statement

In his first issue, Perez claims that: (1) he never fully waived his rights before giving the statement; and (2) the police never recorded it as required by statute. (1)

Standard of Review

Generally, the trial court's decision to admit evidence is reviewed under an abuse of discretion standard. See State v. Oliver, 29 S.W.3d 190, 191 (Tex. App.--San Antonio 2000, pet ref'd). During a hearing on a motion to suppress evidence, "the trial court is the sole trier of fact and judge of the credibility of the witnesses and the weight to be given their testimony." State v. Ross, 32 S.W.3d 853, 855 (Tex. Crim. App. 2000). Thus, reviewing courts should give almost total deference to a trial court's findings of fact that are supported by the record, especially those fact findings that are based on an evaluation of credibility and demeanor. Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim. App. 1997); Oliver, 29 S.W.3d at 191. The reviewing court should also give almost total deference to the trial court's application of law to facts that turn on an evaluation of credibility and demeanor. Id. However, when such questions involve law and facts not based on credibility and demeanor, the appellate court may apply a de novo standard of review. Id.

Waiver

For a suspect to make a valid waiver of the Fifth Amendment privilege against self-incrimination, the suspect's waiver must be voluntarily, knowingly, and intelligently made. Miranda v. Arizona, 384 U.S. 436, 444 (1966); see Tex. Code Crim. Proc. Ann. art. 38.22 2(b) (Vernon 1979). Article 38.22 of the Texas Code of Criminal Procedure provides that a defendant's written statement obtained during custodial interrogation is inadmissible unless certain safeguards are observed. Among those safeguards are various warnings that must be given to the defendant before the statement is taken. See Tex. Code Crim. Proc. Ann. art. 38.22 2(a) (Vernon 1979). (2) In analyzing whether a valid waiver of a defendant's rights was made, there are two prongs to look at: (1) the waiver must be voluntary without deception, intimidation, or coercion; and (2) the "waiver must have been made with a full awareness both of the nature of the right being abandoned and the consequences of the decision to abandon it." Colorado v. Spring, 479 U.S. 564, 573 (1987); Murphy v. State, 100 S.W.3d 317, 322 (Tex. App.--San Antonio 2002, pet. ref'd). The reviewing court looks at the totality of the circumstances to determine if both prongs have been met and if the waiver was valid. See Murphy, 100 S.W.3d at 322. Thus, we look to the totality of the circumstances to determine if the rights listed in article 38.22 section 2(a) have been waived. We will conclude that a waiver is valid if it substantially complies with section 2(b) requiring that the accused knowingly, intelligently, and voluntarily waive such rights. Gutierrez v. State, 945 S.W.2d 287, 289 (Tex. App.--San Antonio 1997, no pet.) (citing Garcia v. State, 919 S.W.2d 370, 387 (Tex. Crim. App. 1994)).

Detective Marshall testified that when Perez arrived at the homicide office, Marshall read him his rights from a San Antonio police form, which contained all the requisite rights as listed in article 38.22 section 2(a). In response to a question on the form asking if the witness understood the rights, Perez wrote "yes," then signed, dated, and indicated the time at the bottom of the form. This court has held that as long as the accused understands the basic principles such as the right to remain silent and that whatever he says can be used against him, the waiver is constitutionally adequate. Murphy, 100 S.W.3d at 322 (citing Colorado v. Spring, 479 U.S. 564, 574 (1987)). Both Detectives Marshall and Raymond Roberts testified that as Perez continued to talk with them and deny his involvement in the shooting, he never indicated that he wanted to invoke any of his rights, nor did he ask for an attorney or ask to terminate the questioning. Thus, looking at the totality of the circumstances, Perez made a valid waiver of his rights.

After Perez continued to tell Detectives Marshall and Roberts that he was not involved, Detective Angell spoke with Perez alone briefly. Detective Angell testified that Perez then confessed to his involvement and agreed to give Detective Marshall a statement. Perez repeated and expanded his initial confession to Detective Marshall as Marshall typed it on a computer, stopping in the process to confirm with Perez that he was typing accurately. Detective Marshall testified that Perez read over the statement and made some corrections. At the top of the written statement, the rights from article 38.22 section 2(a) are listed along with language that Perez has knowingly, intelligently, and voluntarily waived his rights. At the conclusion of the statement there is language stating in the first person that it is Perez's statement, and that he has not been threatened nor promised anything for making the statement. Perez signed his name at the bottom of each page of the statement in the presence of two civilian witnesses.

Perez nonetheless argues there is no evidence that he waived his rights and that he could not waive his rights since he was not allowed to see the waiver language until after he gave his statement to Detective Marshall. However, these arguments are refuted by Detective Marshall's testimony that he read Perez his rights and then handed the form with the rights listed on it for Perez to sign before any statement was obtained. In looking at the totality of the circumstances, the trial court could reasonably have determined that there was substantial compliance with article 38.22 section 2(b), and thus a valid waiver. See Gutierrez, 945 S.W.2d at 290.

Recording the Statement

Article 38.22 section 3(a) requires that oral statements be recorded to be admissible against the accused. See Tex. Code Crim. Proc. Ann. art. 38.22 3(a) (Vernon Supp. 2003). When Perez first confessed to Detective Angell and then to Detective Marshall, his statement was not recorded. Therefore, Perez argues that the written statement is inadmissible since the original statement was not recorded according to article 38.22 section 3(a).

This argument is without merit since the written transcription of Perez's oral statement is admissible on its own grounds even if the statutory recording requirement was not met. See Heiselbetz v. State, 906 S.W.2d 500, 512 (Tex. Crim. App. 1995). Law officers are permitted to reduce oral statements to writing as long as the accused voluntarily gives them, and such statements are admissible as long as the warnings appear on the written statement. Id.

In addition, the trial judge made findings of fact and conclusions of law from the pre-trial hearing stating that Perez's statement was made freely and voluntarily, and thus is admissible. Findings of fact made by the trial court on a motion to suppress evidence shall not be disturbed on appeal if the record supports such findings. Garcia v. State, 919 S.W.2d 370, 387 (Tex. Crim. App. 1994). Clearly, from the totality of the circumstances the record supports the conclusion that Perez made a valid waiver of his rights; therefore, the trial court did not err in admitting his written statement into evidence. Perez's first issue is overruled.

Legal Sufficiency of the Evidence

Article 38.14 of the Texas Code of Criminal Procedure requires that the testimony of an accomplice be corroborated by other evidence connecting the accused to the crime before convicting the accused. Tex Code Crim. Proc. Ann. art. 38.14 (Vernon 1979). Perez argues that Detective Marshall obtained an arrest warrant for Perez solely on the basis of accomplice testimony, which in turn led to his conviction. Perez further claims the State never corroborated this accomplice testimony, and thus the evidence convicting Perez was legally insufficient under article 38.14.

Accomplice testimony under article 38.14 only includes in-court testimony of an accomplice. Bingham v. State, 913 S.W.2d 208, 211 (Tex. Crim. App. 1995). In the present case, the alleged accomplices whom Detective Marshall spoke to never testified in court; therefore, there is not any in-court testimony to corroborate under article 38.14. Perez's second issue is overruled.

Conclusion

Overruling Perez's issues, we affirm the judgment of the trial court.

Catherine Stone, Justice

Do Not Publish

1. Perez also claims his statement was derived from an invalid arrest warrant. This argument is addressed under his second issue.

2. No written statement made by an accused as a result of custodial interrogation is admissible as evidence against him in any criminal proceeding unless it is shown on the face of the statement that:

(a) the accused, prior to making the statement, either received from a magistrate the warning provided in Article 15.17 of this code or received from the person to whom the statement is made a warning that:

(1) he has the right to remain silent and not make any statement at all and that any statement he makes may be used against him at his trial;

(2) any statement he makes may be used as evidence against him in court;

(3) he has the right to have a lawyer present to advise him prior to and during any questioning;

(4) if he is unable to employ a lawyer, he has the right to have a lawyer appointed to advise him prior to and during any questioning; and

(5) he has the right to terminate the interview at any time.

Tex. Code Crim. Proc. Ann. art. 38.22 2(a) (Vernon 1979).