The State of Texas v. Pedro Sanchez Aviles--Appeal from 13th District Court of Navarro County

IN THE

TENTH COURT OF APPEALS

No. 10-07-00371-CR

The State of Texas,

Appellant

v.

Pedro Sanchez Aviles,

Appellee

From the 13th District Court

Navarro County, Texas

Trial Court No. 29,669-CR

MEMORANDUM Opinion

Aviles was charged with aggravated robbery. See Tex. Penal Code Ann. 29.03(a) (Vernon 2003). The State appeals the trial court s granting of Aviles s motion to suppress evidence. See Tex. Code Crim. Proc. Ann. art. 44.01(a)(5) (Vernon 2006). We affirm.

In the State s two issues, the State contends that the trial court erred in granting Aviles s motion to suppress evidence of Aviles s recorded oral statement.[1] In the State s first issue, the State argues that the taint of Aviles s recorded oral statement is attenuated from his illegal arrest, so that the statement does not constitute inadmissible fruit of the poisonous tree. See Hudson v. Michigan, 547 U.S. 586, 592 (2006); Wong Sun v. United States, 371 U.S. 471, 487-88 (1963); Kothe v. State, 152 S.W.3d 54, 60 (Tex. Crim. App. 2004). In the State s second issue, the State argues that Aviles s recorded oral statement was not inadmissible as a plea discussion pursuant to Texas Rule of Evidence 410. See Tex. R. Evid. 410; Bowie v. State, 135 S.W.3d 55, 59-62 (Tex. Crim. App. 2004).

The job of an appellate court in cases of motions to suppress evidence is to review the decision of the lower court for an abuse of discretion. State v. Dixon, 206 S.W.3d 587, 590 (Tex. Crim. App. 2006) (op. on orig. submission); accord State v. Mechler, 153 S.W.3d 435, 438-39 (Tex. Crim. App. 2005); Montoya v. State, 810 S.W.2d 160, 174 (Tex. Crim. App. 1989); see, e.g., Berry v. State, 442 S.W.2d 713, 715 (Tex. Crim. App. 1969). We view the record in the light most favorable to the trial court s conclusion and reverse the judgment only if it is outside the zone of reasonable disagreement. Dixon at 590; accord Carmouche v. State, 10 S.W.3d 323, 328 (Tex. Crim. App. 2000); see De La Rosa v. State, 658 S.W.2d 162, 167 (Tex. Crim. App. 1983); Montgomery v. State, 810 S.W.2d 372, 391 (Tex. Crim. App. 1991) (op. on reh g). We give almost total deference to a trial court s express or implied determination of historical facts and review de novo the court s application of the law . . . to those facts. Dixon at 590 (citing State v. Ross, 32 S.W.3d 853, 856 (Tex. Crim. App. 2000)); accord Guzman v. State, 955 S.W.2d 85, 88 (Tex. Crim. App. 1997). This is so particularly where the motion is based on the voluntariness of a confession. Delao v. State, 235 S.W.3d 235, 238 (Tex. Crim. App. 2007), cert. denied, 128 S. Ct. 1128 (U.S. 2008). [G]reat deference is accorded to the trial court s decision to admit or exclude such evidence, which will be overturned on appeal only where a flagrant abuse of discretion is shown. Id.

Aviles argues that the State fails to challenge all legal bases for the trial court s ruling. [B]efore we can hold that a trial court erred vi[s- -vis] an evidentiary ruling, it is incumbent upon the party having the burden to prove error on appeal (i.e., the appellant) to negate each potential basis supporting the ruling. In re T.M., 33 S.W.3d 341, 348 (Tex. App. Amarillo 2000, no pet.); see Elam v. State, No. 10-03-00204-CR, 2005 Tex. App. LEXIS 109, at *3 (Tex. App. Waco Jan. 5, 2005, no pet.) (not designated for publication) (mem. op.); McKaine v. State, 170 S.W.3d 285, 291 (Tex. App. Corpus Christi 2005, no pet.).

Aviles s motion to suppress contained as one of its grounds that Defendant s oral statement . . . is inadmissible because it is the product of ineffective assistance of counsel in a prior proceeding. (1 C.R. at 66.) The trial court made written findings of fact and conclusions of law in which the court concluded:

3. Defendant s oral statement . . . was involuntary and inadmissible because it was the fruit of the deficient performance* of counsel that rendered his guilty plea involuntary.

4. Defendant would not have made the oral statement but for [counsel] s advice that he accept the plea bargain and debrief . . . .

____________

* As found by the Texas Court of Criminal Appeals.

(1 Supp. C.R. at 5); see Ex parte Aviles, No. AP-75,616 (Tex. Crim. App. Feb. 14, 2007) (not designated for publication), (1 C.R. at 8). The State s issues do not attempt to negate the trial court s Conclusions Nos. 3 and 4. We cannot say that the trial court erred in granting Aviles s motion. We overrule the State s issues.

Having overruled the State s issues, we affirm.

TOM GRAY

Chief Justice

Before Chief Justice Gray,

Justice Vance, and

Justice Reyna

Affirmed

Opinion delivered and filed April 9, 2008

Do not publish

[CR25]

[1] Aviles argues that the State fails to brief the State s issues adequately. See Tex. R. App. P. 38.1(h). We assume without deciding that the State s issues are adequately briefed.