Rene Aguilar v. The State of Texas--Appeal from 290th Judicial District Court of Bexar County

MEMORANDUM OPINION

No. 04-06-00246-CR

Rene AGUILAR,

Appellant

v.

The STATE of Texas,

Appellee

From the 290th Judicial District Court, Bexar County, Texas

Trial Court No. 1994-CR-3374

Honorable Sharon MacRae, Judge Presiding

Opinion by: Rebecca Simmons, Justice

Sitting: Alma L. L pez, Chief Justice

Sandee Bryan Marion, Justice

Rebecca Simmons, Justice

Delivered and Filed: January 2, 2008

AFFIRMED

A jury convicted Appellant Rene Aguilar of attempted murder, and the trial court sentenced him to fifteen years confinement in the Institutional Division of the Texas Department of Criminal Justice. On appeal, Aguilar asserts that the trial court erred in failing to conduct a hearing on the voluntariness of his statement and in failing to include a jury instruction on the voluntariness of the statement in the jury charge. We affirm the judgment of the trial court.

Factual Background

On April 9, 1994,1 Aguilar, a landscaper, was watching a boxing match in an apartment with some of his coworkers, including his supervisor, Jose Israel Granados. After the match was over, an argument ensued but there was conflicting testimony as to the parties involved. Apparently, Aguilar argued with one of the Granados brothers either Jose Armando or Jose Israel. At some point, both Granados brothers exited the apartment and Aguilar followed. All three reconvened in the apartment parking lot.

There was testimony that, while in the parking lot, Aguilar possessed a firearm and Jose Israel a machete. Aguilar shot Jose Armando and Jose Israel caused an injury to Aguilar s head with the machete. Aguilar fled to a gas station, where he was detained and taken to the hospital. Aguilar testified that he received about ten or twelve stitches as a result of the injury to his head. He was charged with attempted murder by proxy while in the hospital.

Aguilar testified in his own defense at trial. During cross-examination, Aguilar stated he did not recall having a conversation with Detective Robert Moffitt during his hospital stay. As a result, on rebuttal, the State recalled Moffitt. Moffitt testified that he had a conversation with Aguilar the day after the incident at the hospital. Because Aguilar did not speak English and Moffitt did not speak Spanish, Moffitt testified that he asked Deputy Larry Pommerening to translate the conversation. Both Moffitt and Pommerening testified about the conversation. On appeal, Aguilar asserts that the trial court (1) failed to conduct a hearing on the issue of whether he voluntarily rendered his statements to Moffitt and (2) failed to instruct the jury that the jury should disregard his statement if it found the statement was not voluntary.

Hearing

In Jackson v. Denno, 378 U.S. 368 (1964), the Supreme Court held that a defendant is entitled to a separate hearing, in the absence of the jury, focused solely on the issue of the voluntariness of his confession. Id. at 394. Such a hearing must be an adequate evidentiary hearing productive of reliable results and a proceeding that is separate and apart from the body trying guilt or innocence. Id. Absent such a hearing, the defendant is entitled to a new hearing on the voluntariness issue, but not necessarily a new trial. Id.

Shortly after the State recalled Moffitt, the trial court stopped the examination, had the jury removed from the court room and stated I need to hear the circumstances of this conversation. Outside the presence of the jury, the trial court conducted an evidentiary hearing in which the following transpired:

[Prosecutor]: Yes, ma am. And I think under Section 5 of 38.22, because he has testified, I believe that statements - - and I don t believe Section 5 concerns itself as to whether or not they were the product of custodial or not custodial.

The Court: It doesn t care.

[Prosecutor]: It doesn t care. And he has placed his credibility at issue. And I feel that for that reason, the statements to Detective Moffitt should be admissible.

. . . .

The Court: Okay, Mr. Garza, let me ask you this. As far as his argument and his suggestion about why this is admissible, I m leaning in his direction. You are correct when you say that voluntariness is the issue. If you want to talk to him about - - if you want to cross-examine the witness about it, this would be the time to do it. And then if you want to develop that further.

[Defense]: Okay.

Moffitt testified that he had Pommerening read Aguilar his rights directly off the SAPD Form 66-E. Moffitt further testified that he told Pommerening to ask Aguilar if he understood

his rights and if he waived those rights. According to Moffitt, Pommerening talked to Aguilar in Spanish and turned to him and stated yes, he said he would. Defense counsel cross-examined Moffitt on whether Aguilar waived his rights prior to divulging any statements. Thereafter, the State called Pommerening. On cross-examination, Defense counsel questioned Pommerening solely on his ability to recall the events during his translation of the conversation between Moffitt and Aguilar. Immediately following the testimony the court conversed with defense counsel:

The Court: I asked if you wanted to put on evidence regarding the voluntariness of your client s statement or otherwise.

[Defense]: No, Judge.

The Court: All right, Well, I [am] inclined to let them put on this evidence. So, I know you will want to object. State your objections.

[Defense]: Your Honor, I have to object based on the fact that the interpreter, the only person who could testify as to whether or not he voluntarily waived his rights, has just testified that he does not recall that. There is no showing that Section 5 that Mr. Tocci is referring to is applicable based on what the Court just heard Detective Pommerening testify about. We have to object that the Court would allow him to - - Detective Moffitt to proceed based on what Deputy Pommerening has just informed us that he doesn t recall about the voluntariness.

Aguilar claims that the foregoing hearing conducted outside the presence of the jury was not a hearing on the voluntariness of Aguilar s statement to Moffitt. Aguilar refers to the trial court s statements at the end of the hearing as an indication that the court did not consider whether his statements were rendered voluntarily. Specifically, the trial court stated:

All right. Well, I m going to find that this statement is admissible, that based upon what Detective Moffitt said, he told the defendant his rights, yes, he was under arrest and based upon what Mr. Pommerening said, that he had never done - - while he doesn t specifically recall the defendant himself and the incident, he has translated on many occasions for various officers and that he has never falsified a translation so that it would appear to be something that it wasn t.

I find that to be truthful and I find that to be applicable on the 10th of April, 1994, to the defendant while he was in the hospital. He did give him the warnings that were required by 38.22, and whether or not - - and clearly he was in custody, but whether or not he was in custody and whether or not this was a voluntary statement, it is still admissible under the provision cited to me previously by the State s counsel for purposes of impeaching the defendant s credibility. And that is the purpose for which I am allowing it.

However, the trial court filed written findings of fact and conclusions of law that specifically concluded the statement was voluntary. The trial court s pertinent findings and conclusions read as follows:

9. It appears, from the record that Detective Moffitt began the interview after he observed Detective Pommerening read the Miranda warnings to the defendant, and after the defendant s oral waiver to Detective Pommerening who, in turn informed Detective Moffitt of that waiver, as well as obtaining an assessment of defendant s lucid condition.

. . . .

2. The defendant, at the time of the oral statement, was mentally competent and aware of what he was doing and willingly initiated the conversation with Detectives Pommerening and Moffitt.

3. Based on the foregoing, the Court concludes that the statement was voluntarily made by the defendant and is admissible as a matter of law and fact.

Clearly, the trial court held a hearing outside the presence of the jury regarding Aguilar s statements. The evidence presented during the hearing and the findings of fact and conclusions of law indicate that, at this hearing, the trial court addressed whether Aguilar s statement was voluntarily made. When asked whether he wanted to put on evidence regarding the voluntariness of the statement, defense counsel declined. Accordingly, we overrule Aguilar s first point of error.

Jury Instruction

In his second point of error, Aguilar asserts the trial court erred in refusing to give the jury instructions on the voluntariness of his statement. Such instructions, however, are not required if the defense fails to raise the issue of voluntariness before the jury. Vasquez v. State, 225 S.W.3d 541, 545-46 (Tex. Crim. App. 2007). In order to properly raise the issue of voluntariness, the defense must introduce evidence from which a reasonable jury could conclude that the statement was not voluntarily made. Id.

The only evidence the defense raised was that Pommerening could not remember whether he read Aguilar the Miranda warnings or whether Aguilar voluntarily waived his rights. Indeed the only objection that Aguilar made relates to Pommerening s inability to recall whether Aguilar waived his rights. However, the Miranda warnings are not required when the confession is only used to impeach the defendant s testimony. Tex. Code Crim. Proc. Ann. art. 38.22 5. Thus, Pommerening s inability to recall whether Aguilar voluntarily waived his rights is no evidence that Aguilar s statement to Moffitt was involuntarily rendered.

Moreover, there was no evidence of police brutality, false promises, or coercion, and no reason to doubt the trustworthiness of Moffitt s testimony. No evidence was presented that Pommerening inaccurately translated Moffitt s statements to Aguilar or that Pommerening had a motive to mislead Moffitt or distort the conversation between Moffitt and Aguilar. Defense counsel questioned Moffitt as to whether he knew what type or amount of medication Aguilar was on at the time and whether it was possible that either Aguilar s head injury or his medication could have affected his cognitive abilities. Moffitt provided the following response:

Those are possibilities. I don t believe that the medication nor the wound played a part in his response. He was sitting up in the bed, he was coherent, lucid and he was readily responsive to the questions that Deputy Pommerening posed to him. He did not appear to me to be under the - - although I m sure he had some pain medication for the injury, he did not appear to be under the influence, so to speak.

. . . .

No, sir. But generally, the hospital will not allow us to come in and interview anyone if there s any reason why they believe that the person is not able to speak to us. So, the hospital did tell us he was alert, coherent and available for us to come and talk to him.

The fact that some medications or a head injury could, in general, affect an individual s cognitive ability is no evidence that Aguilar s cognitive ability was diminished at the time of his conversation with Moffitt and Pommerening. Such possibility, in itself, is mere speculation or conjecture, none of which would be sufficient to allow a reasonable jury to conclude that Aguilar s statements were involuntary. See Hooper v. State, 214 S.W.3d 9, 15 (Tex. Crim. App. 2007) (stating juries are not permitted to come to conclusions based on mere speculation or factually unsupported inferences or presumptions ).

There was no evidence to show that Aguilar s medications, if any, or head injury affected his ability to voluntarily render his statements in question. As a result, Aguilar failed to raise the issue of whether his statement to Moffitt and Pommerening was voluntary. Based on the evidence before the jury, we are unable to hold that a reasonable jury could have concluded that Aguilar s statements were involuntarily made. Accordingly, the trial court was not required to give a jury instruction. We overrule Aguilar s second point of error.

Conclusion

Because the record indicates that the trial court held a hearing on whether Aguilar s statements to Detective Moffitt were given voluntarily and Aguilar failed to introduce evidence that his statements to Moffitt were involuntarily made, we overrule Aguilar s points of error and affirm the judgment of the trial court.

Rebecca Simmons, Justice

DO NOT PUBLISH

1Aguilar forfeited his bail bond in May of 1994, left the country and returned to Dallas, Texas a few years later. Apparently, Aguilar was arrested in 2005 on an unrelated matter and transferred to Bexar County to address the charges in this case.