Theodore Edward Salinas v. The State of Texas--Appeal from 144th Judicial District Court of Bexar County

MEMORANDUM OPINION
No. 04-06-00593-CR
Theodore Edward SALINAS,
Appellant
v.
The STATE of Texas,
Appellee
From the 144th Judicial District Court, Bexar County, Texas
Trial Court No. 2004CR4156
Honorable Mark Luitjen, Judge Presiding

Opinion by: Alma L. L pez, Chief Justice

 

Sitting: Alma L. L pez, Chief Justice

Sandee Bryan Marion, Justice

Phylis J. Speedlin, Justice

 

Delivered and Filed: September 12, 2007

 

AFFIRMED

A jury found Theodore Edward Salinas guilty of murder and assessed punishment at life in prison. On appeal, Salinas contends that the trial court erred in: (1) admitting his statement into evidence; (2) failing to instruct the jury on the voluntariness of his statement; (3) denying his motion for a mistrial when a police detective referred to the location of Salinas's interview as a "facility," thus allegedly implying that Salinas was in prison at the time he gave his statement; and (4) denying his motion for a mistrial when the prosecutor used the word "rape" in his closing argument in the guilt/innocence phase of trial. We affirm the trial court's judgment.

Background

In February of 2000, Priscilla Nerio was found dead in her apartment. A medical examiner determined that Nerio had been strangled and drowned. Nerio's murder remained unsolved until December of 2003, when homicide detectives were notified that Salinas's DNA matched the DNA on a vaginal swab obtained during Nerio's autopsy. After learning that Salinas was in jail, detectives obtained a search warrant authorizing them to obtain a sample of Salinas's DNA. They arranged a meeting with Salinas at the jail, where they interviewed him and executed the warrant. During the interview, Salinas gave a written statement in which he admitted killing Nerio but stated that it was an accident. After a jury trial, Salinas was convicted of murder. This appeal followed.

Admissibility of Salinas's Statement

Salinas contends that the trial court erred in denying his motion to suppress his statement because the statement was not voluntary, and he did not knowingly, intelligently, and voluntarily waive his rights under Miranda v. Arizona, 384 U.S. 436 (1966), and Article 38.22 of the Texas Code of Criminal Procedure. See Tex. Code Crim. Proc. Ann. art. 38.22 (Vernon 2005). We use an abuse of discretion standard in reviewing a trial court's ruling on a motion to suppress evidence. Balentine v. State, 71 S.W.3d 763, 768 (Tex. Crim. App. 2002). At a suppression hearing, the trial judge is the sole judge of the credibility of the witnesses and of the weight to be given their testimony. Cantu v. State, 817 S.W.2d 74, 77 (Tex. Crim. App. 1991). Therefore, we afford almost total deference to the trial court's determination of historical facts supported by the record, especially when the fact findings are based on an evaluation of the witnesses' credibility and demeanor. Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim. App. 1997). We afford the same level of deference to a trial court's ruling on mixed questions of law and fact when the resolution of those questions turns on an evaluation of credibility and demeanor. Id. We review de novo mixed questions of law and fact that do not depend upon credibility and demeanor. Id.

At the suppression hearing, the trial court heard testimony from Salinas and the two detectives who took Salinas's statement. Detective Robert Moffitt testified that he and Detective George Saidler made contact with Salinas in prison after Saidler received information that Salinas's DNA matched the DNA found on the vaginal swab taken during Nerio's autopsy. Saidler testified that at the beginning of the interview, he read Salinas his rights directly from a form that contained the warnings required by article 38.22 of the Texas Code of Criminal Procedure. Saidler testified that Salinas indicated verbally that he understood his rights. Salinas also signed his name at the bottom of the form and wrote "yes" under a question asking whether he understood his rights. Salinas then agreed to speak with the detectives. Salinas first told the detectives that he was merely friends with Nerio and that he and Nerio did not have a romantic relationship. Upon being confronted with the DNA evidence, however, Salinas admitted that he had sexual intercourse with Nerio, but he denied murdering her. Meanwhile, the detectives handed Salinas a photo of Nerio with her two daughters. Saidler asked Salinas whether he thought Nerio's children had a right to know what happened to their mother. At that point, Salinas admitted that he killed Nerio but stated that it was an accident. The detectives asked Salinas whether he would be willing to give them a written statement, and he said he would.

Moffitt testified that before he began typing Salinas's statement, he read Salinas the warnings required by article 38.22 of the Texas Code of Criminal Procedure, which were typed at the top of each page of the document on which Moffitt planned to type the statement. Salinas stated that he was knowingly, intelligently, and voluntarily waiving his rights. In addition, the paragraph listing Salinas's rights at the top of each page of his statement also stated that Salinas knowingly, intelligently, and voluntarily waived his rights, and Salinas signed each page of his statement. Moffitt stated that he and Saidler made it clear to Salinas throughout the interview that he was free to end the interview at any time. After Moffitt finished typing Salinas's statement, he asked Salinas to review the statement and make any necessary changes. Moffitt told Salinas to start reading the document aloud but then allowed Salinas to read the rest of the document to himself. Saidler testified that he asked Salinas if he had read the statement, and Salinas said he had. Moffitt testified that Salinas did not make any changes to the statement. At that point, the detectives brought in two civilian witnesses from the prison facility and asked Salinas in the presence of the witnesses if he had been advised of his rights and if he had waived those rights. Salinas said that he had, and Salinas and the witnesses signed each page of the statement. At the conclusion of the interview, the detectives took a sample of Salinas's DNA. The record shows that the interview lasted approximately two hours.

Salinas testified that one of the detectives read him his rights off of a form at the beginning of the interview and that he signed the form. He also testified that one of the detectives read him his rights again before he gave his written statement. However, he testified that he did not fully understand his rights until after he had given his statement and gone back to his prison unit, where other inmates explained his rights to him. He testified that he had been awake for seventeen hours at the time he gave his statement because he had just finished working in the prison kitchen when he was asked to meet with the detectives. He stated that one of the detectives told him twice to read through his written statement when it was finished but that he read only the first page and then just stared at the rest of the pages because he was tired and "just wanted to get out of there." He acknowledged that neither of the detectives threatened him, but he stated that he "felt threatened." When asked if the detectives coerced or pressured him, he stated that they kept asking him questions and "kept on nagging." He testified that he did not ask the detectives to leave and did not ask for a lawyer. He stated that he signed each of the pages of the written statement.

We determine the voluntariness of a statement by examining the totality of the circumstances. Creager v. State, 952 S.W.2d 852, 856 (Tex. Crim. App. 1997). A confession will not be considered involuntary absent police coercion causally related to the confession. Colorado v. Connelly, 479 U.S. 157, 164 (1986); Alvarado v. State, 912 S.W.2d 199, 211 (Tex. Crim. App. 1995); Walker v. State, 842 S.W.2d 301, 303 (Tex. App.-Tyler 1992, no writ). The ultimate question is whether the defendant's will was "overborne" by police coercion. Creager, 952 S.W.2d at 856. In answering this question, we may consider various relevant factors, including the length of detention, incommunicado or prolonged detention, denying a family access to a defendant, refusing a defendant's request to telephone a lawyer or family, and physical brutality. Nenno v. State, 970 S.W.2d 549, 557 (Tex. Crim. App. 1998), overruled on other grounds, State v. Terrazas, 4 S.W.3d 720 (Tex. Crim. App. 1999).

There is no evidence in this case of any of the factors listed in Nenno. The entire meeting between the detectives and Salinas lasted only about two hours. During that time, both detectives read Salinas his rights, and Salinas did not ask for a lawyer or to stop the interview. The detectives did not threaten him or use any physical force against him. Absent any evidence of coercive actions on the part of either of the detectives, we cannot say that the trial court abused its discretion in determining that Salinas's will was not overborne by police coercion.

Salinas also contends that his statement does not comply with article 38.22 of the Texas Code of Criminal Procedure (1) because he did not knowingly, intelligently, and voluntarily waive his rights as required by that section. See Tex. Code Crim. Proc. Ann. art. 38.22, 2 (Vernon 2005). The record shows that both detectives read Salinas the warnings required by article 38.22 and that he indicated verbally and in writing that he understood his rights and agreed to waive those rights. Nevertheless, Salinas argues that a combination of fear, lack of sleep, and ignorance of the law caused him to sign the written statement against his will. He argues that he did not understand his right not to incriminate himself until it was later explained to him by another inmate. However, Salinas offers no evidence of mental impairment that would explain why he did not understand his rights despite the fact that they were repeatedly read to him. He argues that he had not slept for seventeen hours before the interview, but there is no evidence that he asked the detectives to stop the interview or to postpone it until he was better rested. See Barney v. State, 698 S.W.2d 114, 121 (Tex. Crim. App. 1985). Both detectives testified that Salinas appeared lucid and did not appear to be under the influence of drugs, alcohol or anything else that would affect his ability to understand. See id. In addition, the record shows that Salinas was not subjected to a lengthy interrogation, as the interview lasted only about two hours. See id.

Considering the totality of the circumstances, we find that the evidence supports the trial court's finding that Salinas gave his statement voluntarily after he was repeatedly informed of his rights and after he knowingly, intelligently, and voluntarily waived those rights. Accordingly, we overrule Salinas's first issue.

Jury Charge

Salinas contends that the trial court erred in failing to include in the jury charge an instruction on the voluntariness of his statement. Salinas concedes that he did not request an instruction or object to its exclusion in the trial court, but he relies on Almanza v. State, 686 S.W.2d 157 (Tex. Crim. App. 1985), in arguing that the trial court's failure to include the instruction is nevertheless reversible because the error caused "egregious harm." However, the Almanza "egregious harm" standard does not apply when a defensive issue (2) is not properly preserved by a request or objection in the trial court. See Posey v. State, 966 S.W.2d 57, 60 (Tex. Crim. App. 1998). In Posey, the court of criminal appeals held that a trial court has no duty to sua sponte instruct the jury on defensive issues that were not requested by the defendant. Id. at 62. Because Salinas did not request a voluntariness instruction or object to its exclusion in the trial court, he failed to preserve this issue for our review.

 

Motions for Mistrial

In two issues, Salinas contends that the trial court erred in denying his motions for a mistrial when: (1) a police detective used the word "facility" in describing where he interviewed Salinas; and (2) the prosecutor used the word "rape" in his closing argument in the guilt/innocence phase of trial. We apply an abuse of discretion standard in reviewing a trial court's ruling on a motion for mistrial. Wead v. State, 129 S.W.3d 126, 129 (Tex. Crim. App. 2004). We must uphold the trial court's ruling if the ruling was within the zone of reasonable disagreement. Id.

A. Police Detective's Testimony

Before Detective Moffitt testified in front of the jury, the trial court held a hearing on Salinas's motion to suppress his statement. During the hearing, Moffitt testified that he and Detective Saidler interviewed Salinas in a prison facility in which Salinas was incarcerated. At the close of the hearing, the trial court instructed the prosecutor to redact from Salinas's statement any references indicating he was in prison at the time of the statement. When Moffitt later testified in front of the jury, he stated that he and Saidler made arrangements to go "somewhere" to interview Salinas. In describing his preparation of Salinas's written statement, Moffitt stated: "At that point, I began to - I have a form on the - I used one of the computers at the facility and talked to - started talking to him." (emphasis added). A bit later in the testimony, the prosecutor pointed out that there were signatures other than Salinas's on the statement and asked Moffitt whose signatures they were. Moffitt answered: "These are - are staff at the facility." (emphasis added). At that point, defense counsel objected to the use of the word "facility" and moved for a mistrial. After excusing the jury, the trial court instructed Moffitt that he was not to refer to a "facility" or use any other language that could imply that he took Salinas's statement in a prison. Defense counsel reiterated his motion for a mistrial, and the trial court denied the motion.

In order to preserve error for appeal, a defendant should: (1) make a timely objection; (2) request an instruction to disregard; and (3) move for a mistrial if an instruction to disregard is not sufficient to cure the error. Young v. State, 137 S.W.3d 65, 69 (Tex. Crim. App. 2004); Brooks v. State, 642 S.W.2d 791, 798 (Tex. Crim. App. 1982). Even if a party does not request an instruction to disregard, a timely motion for mistrial is sufficient to preserve error if the error is incurable. Young, 137 S.W.3d at 69-70. If the error is curable, however, the party waives error when he fails to request an instruction to disregard. Id. at 70.

Salinas concedes that he did not request an instruction to disregard but argues that Moffitt's repeated use of the word "facility" was incurable because an instruction to disregard would merely have drawn more attention to the implication that Salinas was in prison and thus that he had committed a prior offense. Assuming, without deciding, that Moffitt's reference to a "facility" was a reference to a prior offense, a witness's inadvertent reference to an extraneous offense is generally cured by a prompt instruction to disregard. Rojas v. State, 986 S.W.2d 241, 250 (Tex. Crim. App. 1998); Nobles v. State, 843 S.W.2d 503, 514 (Tex. Crim. App. 1992). An exception exists where the reference was clearly calculated to inflame the minds of the jury or was of such damning character as to suggest it would be impossible to remove the harmful impression from the jurors' minds. Rojas, 986 S.W.2d at 250. Here, Moffitt's use of the word "facility" was at best only an indirect reference to an extraneous offense. We cannot say that such inadvertent, speculative testimony was calculated to inflame the minds of the jury. See id. Accordingly, any harm caused by Moffitt's responses could have been cured by an instruction to disregard. See Kipp v. State, 876 S.W.2d 330, 339 (Tex. Crim. App. 1994) (witness's reference to extraneous offense cured by trial court's instruction to disregard); Nobles, 843 S.W.2d at 514 (witness's statement that defendant said he did not want to go "back to prison" cured by trial court's instruction to disregard); Tennard v. State, 802 S.W.2d 678, 685 (Tex. Crim. App. 1990) (witness's response that he saw defendant when defendant "first got out of the penitentiary" cured by trial court's instruction to disregard). Because Salinas did not request an instruction to disregard, he waived error on this issue. See Young, 137 S.W.3d at 70.

B. Prosecutor's Argument

During closing argument in the guilt/innocence phase of trial, the prosecutor read the following excerpt from Salinas's statement: "[Nerio] panicked and pulled up her pants and told me that she thought it was her boyfriend, Anthony. Then I pulled her pants back down. And this time I was on top of her face-to-face. She was trying to get up or something, and I just put my forearm against her neck. It was like the wrist part of the forearm that was on the front of her throat." Later in closing arguments, the prosecutor referred back to Salinas's statement, stating: "[Salinas] talks about [Nerio] being alarmed and wanting to stop and him continuing. Okay? This is forceful. Forceful sex. We have a word for that [sic] sexual assault and rape is what this amounts to." At that point, defense counsel objected to the use of the word "rape" and moved for a mistrial. The trial court denied the motion.

Proper jury argument must fall within one of four areas: (1) summation of the evidence presented at trial; (2) reasonable deduction from the evidence; (3) answer to opposing counsel's argument; or (4) a plea for law enforcement. Jackson v. State, 17 S.W.3d 664, 673 (Tex. Crim. App. 2000); Jones v. State, 900 S.W.2d 392, 396 (Tex. App.-San Antonio 1995, writ ref'd). Counsel has wide latitude in drawing inferences from the evidence that are reasonable, fair, legitimate, and offered in good faith. Denison v. State, 651 S.W.2d 754, 761-62 (Tex. Crim. App. 1983).

Here, Salinas admitted in his written statement that he pulled down Nerio's pants even though she pulled them up, that he was on top of her, that she tried to get up, and that he put his forearm on her neck, eventually causing her to lose consciousness. We hold that the prosecutor's characterization of the sexual encounter as "rape" was a reasonable deduction from the evidence. See Denison, 651 S.W.2d at 762; Jones, 900 S.W.2d at 397.

Even if the prosecutor's use of the word "rape" had been improper, the trial court could have cured any harm caused by the error with an instruction to disregard. See Shannon v. State, 942 S.W.2d 591, 597 (Tex. Crim. App. 1996) (instruction to disregard generally cures error caused by improper jury argument). Because Salinas did not request an instruction to disregard, he waived error on this issue. See Young, 137 S.W.3d at 70.

Conclusion

We affirm the trial court's judgment.

 

Alma L. L pez, Chief Justice

Do Not Publish

1. Section 2 of article 38.22 of the Texas Code of Criminal Procedure states the following:

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; and

(b) the accused, prior to and during the making of the statement, knowingly, intelligently, and voluntarily waived the rights set out in the warning prescribed by Subsection (a) of this section.

Tex. Code Crim. Proc. Ann. art. 38.22, 2 (Vernon 2005).

2. The court of criminal appeals has treated a challenge to the voluntariness of a statement as a defensive issue. See Mendoza v. State, 88 S.W.3d 236, 239 (Tex. Crim. App. 2002); Muniz v. State, 851 S.W.2d 238, 254 (Tex. Crim. App. 1993).