Frank Jose Trejos v. State

Opinion issued May 24, 2007

In The

Court of Appeals

For The

First District of Texas

NO. 01-05-00646-CR

FRANK JOSE TREJOS, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 400th District Court

Fort Bend County, Texas

Trial Court Cause No. 37404

O P I N I O N

Appellant, Frank Jose Trejos, appeals a judgment convicting him of the murder

of Maria Barrientos, his mother-in-law. See Tex. Pen. Code Ann. § 19.02 (b)(1)

(Vernon 2003). Appellant pleaded not guilty to the jury. The jury found him guilty

and assessed punishment at 45 years in prison. In seven issues, appellant contends

that the trial court erred (1) by granting the State's motion to shuffle the venire panel

because the motion was untimely after voir dire had commenced, (2) by granting the

State's motion to amend the indictment to add the name of the complainant on the day

of trial, (3) by admitting his statements that he made to police officers, (4) by

admitting testimony concerning the findings of cadaver dogs because there was no

showing of the reliability of the dogs or, alternatively, the probative value of the

testimony was outweighed by its prejudicial effect or the danger of confusing the

issues, and (5) by denying his motion for instructed verdict because "the State failed

to prove corpus delicti ." We conclude that the State's motion to shuffle was timely

because it was made before the State began its voir dire. We also conclude that the

trial court's amendment of the indictment to add the name of the complainant on the

day of trial was harmless error. Further, we conclude that the trial court did not err

by admitting appellant's statements to officers, by admitting the evidence regarding

the cadaver dogs, or by denying appellant's motion for instructed verdict. We

therefore affirm.

Background

In 1994, appellant and his wife live withed Maria Barrientos, his mother-in-law. On June 10, 1994, after she was paid for her work as a nanny, Maria left work

at 5:00 p.m., and was never seen again. According to her employer, she was not ill

and she did not quit. The next day, when Margarita Torres called Maria's house to

speak with her, appellant told her that that Maria left because she was angry with him

for not mowing the lawn.

Four days after Maria was last seen, appellant reported to the police that she

was missing, but neither he nor his wife helped Maria's friends post missing persons

fliers, nor did they make any other attempts to find her. Detective Glenn White of the

Sugar Land Police Department was assigned to Maria's case two days after the report

was filed. His investigation did not reveal any activity with her work or church.

Maria's bank account had a small balance remaining and there was no activity in that

account, even though Maria did not have much money. And although she was known

to take her bible with her everywhere, Detective White found it in her house.

On June 29, the Houston Police Department Crime Laboratory processed

Maria's house. Testing revealed a "presumptive test for blood" on adult footprints

in the kitchen and the hallway and on a towel in the bathroom. (1) The towel was sent

to the Department of Public Safety ("DPS") for follow-up testing, but the test showed

that there was no "apparent blood." (2) The following day, Maria's car, with the keys

still in the ignition, was found abandoned less than two miles from her ex-husband's

house. Maria's purse was in the car. A presumptive test showed the presence of

possible blood on the floormats in the back floorboard of the car.

In July 1994, appellant, who appeared casual and nonchalant, met with police

officers to discuss Maria's disappearance. According to appellant, he last saw Maria

asleep at her house, when he and his wife left the house at around 9:30 or 10:30 p.m.

on Friday, June 10. Appellant reported that, when he and his wife returned to the

house, the door to the house was ajar, Maria's car was missing, and Maria was gone.

Appellant laughed when asked what was the last thing he heard Maria say. When

asked where he went on the evening of June 10, appellant gave detailed directions

rather than stating a general destination. Appellant also stated that Maria had mopped

her kitchen floor. However, the floor was being re-tiled and was concrete. Also,

everywhere that appellant said that Maria had mopped "presumptively tested

positive" for blood.

In November 2001, seven years after Maria disappeared, Detective White asked

DPS Sergeant Enrique Muniz for assistance in the investigation. On November 7,

Sergeant Muniz, Detective White, and other officers went to appellant's apartment.

They told appellant that they wanted to talk to him about the case and that he was not

under arrest, and they asked him to come to the Sugar Land Police Department.

Appellant agreed. Because he did not have a car, appellant rode with Muniz in an

unmarked pickup truck. Once at the Department, appellant and the officers went into

an office in a temporary, portable building because the Department was being re-modeled. Detective White told appellant that he was free to leave. Appellant then

gave a statement that was recorded on audio tape. On the tape, appellant

acknowledged that he had been read his " Miranda warning" (3) before the recording

started. (4)

In his statement, appellant said that he was angry with Maria for nagging him.

When she "came up in [his] face" he struck her with his fist. She fell to the kitchen

floor. Maria was bleeding and "freaking out," so appellant choked her. After Maria

was dead, appellant and his wife took her to the bathroom and placed her in the tub.

Appellant's wife cut Maria's wrists to try to make it look like she committed suicide,

but the wounds did not bleed. Appellant and his wife put Maria's body in the trunk

of their car and dumped her body in a ditch.

It took less than one hour for appellant to make this statement. When he was

done, appellant waited in the lobby. He was not arrested, nor was he told that he

could not leave. Sergeant Muniz told Detective White that appellant had confessed

to killing Maria. Detective White took a second recorded statement from appellant

later that evening. He also read appellant the warnings in article 38.22 of the Texas

Code of Criminal Procedure. See Tex. Code Crim. Proc. Ann. art. 38.22, § 3(a)

(Vernon 2005) . Appellant acknowledged that he had received these warnings by

initialing next to each warning on a form. This statement also took appellant less than

one hour to make. When it was done, appellant went with other detectives to show

where he and his wife had disposed of Maria's body.

Appellant returned to the police department around 1:00 a.m. He and his wife

were told that they were free to leave. Appellant, however, agreed to give a third

recorded statement. Detective White began reading the article 38.22 warnings to

appellant, but appellant finished them, quoting them to Detective White. After this

last statement, appellant left with his wife.

That afternoon, appellant drove himself to the Sugar Land Police Department

and spoke with Detective White again. This conversation was also recorded.

Appellant then went with Detective White to Maria's house to clarify some of the

details of the murder. Appellant demonstrated what had occurred. This walkthrough

of the crime scene was videotaped.

On November 9, 2001, police officers took two dogs trained to detect the scent

of cadavers to the location where appellant said that he and his wife had dumped

Maria's body. The two cadaver dogs and their handlers worked the area

independently of one another so that they would not influence each other. Both dogs

alerted within five or six feet of one another, at the spot that appellant had indicated

he had placed the body. Although an excavation was performed, no remains were

found.

On December 23, 2002, a grand jury indicted appellant for Maria's murder.

The indictment read,

The duly organized Grand Jury of Fort Bend County, Texas, presents in

the District Court of Fort Bend County, Texas, that in Fort Bend County,

Texas, Frank Jose Trejos, hereafter styled the Defendant, heretofore on

or about June 11, 1994, did then and there

Paragraph A

intentionally and knowingly cause the death of an individual, MARIA

BARRIENTOS, by CHOKING HER.

Paragraph B

intentionally and knowingly cause the death of an individual, by A

MANNER AND MEANS UNKNOWN TO THE GRAND JURY.

Appellant was arrested on December 30, 2002.

On the day of trial, the venire was seated in the courtroom. The trial court

asked the prospective jurors various questions. Each question was followed by

silence in response. The trial court asked if anyone knew appellant, and one member

of the venire raised his hand in response to the question. Immediately before the

State began its voir dire, the State requested a jury shuffle. Appellant's counsel

objected that the request was untimely because the trial court had already asked many

voir dire questions that were of the type likely to be helpful to the parties. The trial

court overruled the objection and granted the State's request for a jury shuffle.

After the completion of voir dire, appellant moved to strike paragraph B of the

indictment, alleging that it was void because the second manner and means paragraph

did not include the complainant's name, Maria Barrientos . The State then verbally

requested that the indictment be amended to add Maria's name. Over appellant's

objection, the trial court allowed the amendment by handwriting "Maria Barrientos"

into paragraph B of the indictment.

Jury Shuffle

In his first issue, appellant asserts that the trial court erred by allowing a shuffle

of the venire "after voir dire had effectively commenced." Under article 35.11 of the

Texas Code of Criminal Procedure, a party is entitled, upon timely demand, to have

the jury panel for the case shuffled. Tex. Code Crim. Proc. Ann . art. 35.11 (Vernon

2006). A shuffle has the effect of randomly reordering the names of prospective

jurors on the jury list. Montez v. State , 975 S.W.2d 370, 371 (Tex. App.--Dallas

1998, no pet.). A motion to shuffle is untimely if presented after voir dire has

commenced. Davis v. State , 782 S.W.2d 211, 214 (Tex. Crim. App. 1989).

Determination of when voir dire has commenced depends on whether the trial

is a capital trial in which the State is seeking the death penalty or a non-capital trial. (5)

In a non-capital case, as here, a motion to shuffle is timely as long as the motion is

made before the State actually starts questioning the jurors in its portion of the voir

dire. DeLeon v. State , 731 S.W.2d 948, 949 (Tex. Crim. App. 1987) ; Williams v.

State , 719 S.W.2d 573, 577 (Tex. Crim. App. 1986). Regardless of the length or

detail of the trial court's questions to the venire panel in a non-capital case, the

bright-line rule is that the motion to shuffle the venire is timely when it is made

before the State begins questioning the potential jurors. See Williams , 719 S.W.2d

at 577 (holding motion to shuffle venire timely although for forty minutes, "the trial

judge introduced herself and made introductory remarks, identified the attorneys,

pointed out the appellant and his co-defendant, Raymond Jackson, discussed the

division of offenses into felonies and misdemeanors, gave examples of felonies of the

first, second and third degree and the applicable penalties, discussed capital murder

and its penalties and the high fines now available in cases of 'drug trafficking,' read

the instant indictment to the panel, told them the offense was formerly known as

aggravated rape, discussed jury strikes, the order of trial, the charge, jury

deliberations, verdicts, and referred to certain principles as presumption of innocence,

burden of proof, reasonable doubt, etc.").

The State's motion to shuffle was timely in this non-capital case because it was

made before the State began its voir dire. See DeLeon , 731 S.W.2d at 949 ; Williams ,

719 S.W.2d at 577 . We hold that the trial court did not err by granting the State's

motion to shuffle the jury panel.

We overrule appellant's first issue.

Amendment of Indictment

In his second issue, appellant challenges the trial court's grant of the State's

motion to amend the indictment on the day of trial. Specifically, appellant contends

that, because the original indictment failed to include the complainant's name in the

second paragraph of the indictment, the second paragraph was void. Appellant also

asserts that allowing the State to amend the indictment on the day of trial had a

substantial and injurious effect that harmed him. The State contends that appellant

waived his right to challenge the indictment by not filing a pre-trial motion attacking

the indictment and, in the alternative, that if the amendment was error, it was

harmless.

A. Indictment Not Void

On the day of trial, appellant objected that the indictment was void because it

did not include Maria's name in the second paragraph. "An indictment is a written

instrument presented to a court by a grand jury that charges a person with the

commission of an offense." Duron v. State , 915 S.W.2d 920, 921 (Tex.

App.--Houston [1st Dist.] 1996) (citing Tex. Const. Art. V, § 12(b)), aff'd , 956

S.W.2d 547 (Tex. Crim. App. 1997). However, the Court of Criminal Appeals has

recognized that "[s]ome defects . . . render the instrument a non-indictment." Duron

v. State , 956 S.W.2d 547, 550 (Tex. Crim. App. 1997) (citing Cook v. State , 902

S.W.2d 471, 478 (Tex. Crim. App. 1995)) (explaining that "those defects [are] of the

type that would make it impossible for the defendant to know with what offense he

had been charged."). In Duron , the court held that "a written instrument is an

indictment or information under the Constitution if it accuses someone of a crime

with enough clarity and specificity to identify the penal statute under which the State

intends to prosecute, even if the instrument is otherwise defective." Id. at 550-51.

The pertinent statute here is the charge of murder in the Texas Penal Code. In

Texas, a person commits the offense of murder if he "intentionally or knowingly

causes the death of an individual." Tex. Pen. Code Ann. § 19.02 (b)(1). The

complainant's name is not a statutory element of the criminal offense. Fuller v.

State , 73 S.W.3d 250, 253 (Tex. Crim. App. 2002) (holding that "[s]tate law does not

define the victim's name as a substantive element of the offense by, for example,

defining the offense as 'injury to an elderly individual named Olen M. Fuller.'");

Rodriguez v. State , 137 S.W.3d 758, 761 (Tex. App.--Houston [1st Dist.] 2004, no

pet.) (holding that "[s]tate law does not define the victim's name as a substantive

element of the offense by, for example, defining the offense as 'endangerment of a

child under 15 named Alexander Rodriguez.'"). The second paragraph of the

indictment, which states that appellant "intentionally and knowingly cause[d] the

death of an individual by a manner and means unknown to the grand jury" includes

all of the elements of the offense, and thus the failure to include Maria's name does

not make it void. See Tex. Pen. Code Ann. § 19.02 (b)(1); Fuller , 73 S.W.3d at 253 ;

Rodriguez , 137 S.W.3d at 761 .

B. Waiver by Appellant

The State contends that we should hold that appellant waived his right to

challenge the indictment because he failed to object to the indictment prior to trial.

See Duron , 915 S.W.2d at 922 ; Tex. Code Crim. Proc. Ann. art. 1.14(b) (Vernon

2005). In Duron , this Court stated that "all defects of form and substance [in an

indictment] are waived if the defendant does not object before the date on which the

trial begins." Id. The issue here is not whether appellant properly challenged the

indictment. The issue is whether the trial court properly amended the indictment on

the day of trial. We conclude that appellant did not waive his right to challenge the

State's amendment of the indictment on the day of trial.

C. Amendment of Indictment

After appellant objected that the indictment was void due to its failure to name

Maria in the second paragraph, the State requested that the court amend the second

paragraph of the indictment to add Maria's name. Appellant objected and the trial

court overruled appellant's objection to the amendment. According to the Code of

Criminal Procedure, a motion to amend the indictment made on the day of trial, as

here, can only be granted "if the defendant does not object." See Tex. Code Crim.

Proc. Ann . art. 28.10(b) (Vernon 2006). (6) Because appellant objected to the State's

motion to amend the indictment on the day of trial, it was error for the trial court to

grant the amendment. See id. We must determine whether the trial court's erroneous

ruling under article 28.10 of the Code of Criminal Procedure is harmless error under

Rule 44.2(b) of the Texas Rules of Appellate Procedure. See Wright v. State , 28

S.W.3d 526, 531-32 (Tex. Crim. App. 2000); Flores v. State , 139 S.W.3d 61, 65-66

(Tex. App.--Texarkana 2004, pet. ref'd); Valenti v. State , 49 S.W.3d 594, 598 (Tex.

App.--Fort Worth 2001, no pet.).

Under Rule 44.2(b), we are required to disregard errors, defects, irregularities,

or variances that do not affect the accused's substantial rights. Tex. R. App. P.

44.2(b). An error affects a substantial right "when the error had a substantial and

injurious effect or influence in determining the jury's verdict." King v. State , 953

S.W.2d 266, 271 (Tex. Crim. App. 1997). If looking at the record as a whole, it

appears the error "did not influence the jury, or had but a slight effect," we must

consider the error harmless and allow the conviction to stand. Johnson v. State , 967

S.W.2d 410, 417 (Tex. Crim. App. 1998). To determine whether the trial court's

error affected a substantial right, we examine the possible outcomes had the

indictment not been erroneously amended. The critical inquiry requires consideration

of whether the indictment, as written, informed the defendant of the charge against

him sufficiently to allow him to prepare an adequate defense at trial, and whether

prosecution under the original indictment would subject the defendant to the risk of

being prosecuted later for the same crime. Gollihar v. State , 46 S.W.3d 243, 248

(Tex. Crim. App. 2001) (quoting United States v. Sprick , 233 F.3d 845, 853 (5th Cir.

2000)).

Appellant asserts that his substantial rights were prejudiced because the trial

court allowed the State to correct a void indictment denying him the right to proceed

to trial on the indictment returned by a grand jury. As we note above, the indictment

here was not void. See Tex. Pen. Code Ann. § 19.02 (b)(1); Fuller , 73 S.W.3d at

253 ; Rodriguez , 137 S.W.3d at 761 . The indictment originally charged that appellant

"intentionally and knowingly cause[d] the death of an individual, by a manner and

means unknown to the grand jury." The amendment added the complainant's name,

Maria Barrientos, after the word "individual" to state that appellant "intentionally and

knowingly cause[d] the death of an individual, Maria Barrientos, by a manner and

means unknown to the grand jury." The amended indictment that includes Maria's

name charges the same statutory offense as was charged in the original indictment.

See Tex. Pen. Code Ann. § 19.02 (b)(1) ; see Flowers v. State , 815 S.W.2d 724,

728-29 (Tex. Crim. App. 2001). Further, paragraph A of the indictment charged

appellant with the same crime, murder, and specifically named Maria. Paragraph A

states that appellant did "intentionally and knowingly cause the death of an

individual, MARIA BARRIENTOS, by CHOKING HER." The second paragraph,

paragraph B, which is the subject of appellant's complaint here, followed the first

paragraph, paragraph A, by also charging that appellant did "intentionally and

knowingly cause the death of an individual." We cannot conclude that appellant's

"substantial rights" were prejudiced by the failure to specifically name Maria in the

second paragraph when the first paragraph of the same indictment charges the same

offense with different manner and means of committing the offense. We note further

that the trial court offered to give appellant an additional ten days to prepare for trial,

but appellant opted not to accept the court's offer. See Tex. Code Crim. Proc. Ann .

art. 28.10(a) . We cannot conclude that appellant's substantial rights were prejudiced

under these circumstances.

We hold that the trial court erred by allowing the State to amend the indictment

on the day of trial, but that the error was harmless because the first paragraph of the

indictment charged the same offense with a different manner and means against the

same person.

We overrule appellant's second issue.

The Audio-Taped Statement

In his third issue, appellant contends that the trial court erred by admitting the

audio-taped statement that he gave to Sergeant Muniz, which he claims was a result

of custodial interrogation and was inadmissible because it failed to comply with

article 38.22 of the Code of Criminal Procedure.

A. Motion to Suppress Standard of Review

In reviewing the trial court's ruling on a motion to suppress evidence, we apply

a bifurcated standard of review. Carmouche v. State , 10 S.W.3d 323, 327 (Tex. Crim.

App. 2000); Blake v. State , 125 S.W.3d 717, 722 (Tex. App.--Houston [1st Dist.]

2003, no pet.). We give almost total deference to the trial court's determination of

historical facts that depend on credibility, while we conduct a de novo review of the

trial court's application of the law to those facts. Carmouche , 10 S.W.3d at 327 . If,

after a hearing on a motion to suppress, the trial court does not file findings of fact,

as here, we view the evidence in the light most favorable to the trial court's

determination and we assume that the trial court made implicit findings of fact in

support of its determination if those findings are supported by the record. State v.

Gray , 158 S.W.3d 465, 467 (Tex. Crim. App. 2005) (quoting State v. Ross , 32 S.W.3d

853, 855-56 (Tex. Crim. App. 2000)). We will uphold the determination by the trial

court if it is correct on any theory of law applicable to the case. Id.

B. Article 38.22

The Code of Criminal Procedure provides requirements that must be followed

for a custodial statement to be admitted in evidence at trial. See Tex. Code Crim.

Proc. Ann. art. 38.22, § 3(a); Woods v. State , 152 S.W.3d 105, 116 (Tex. Crim. App.

2004) . However, the restrictions in the Code of Criminal Procedure apply only to

statements "made as a result of custodial interrogation." See Tex. Code Crim. Proc.

Ann. art. 38.22, § 3(a); Woods , 152 S.W.3d at 116 . (7) Thus, appellant's statement is

admissible even if it does not comply with the conditions in the Code of Criminal

Procedure if appellant was not in custody when it was made. See Tex. Code Crim.

Proc. Ann. art. 38.22, § 3(a); Woods , 152 S.W.3d at 116 .

The central dispute here concerns whether appellant was in custody when he

made the audio taped statement. "A person is in 'custody' only 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 reasonable person standard

presupposes an innocent person. Id. 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 determination of custody must be made on an ad hoc basis, after

considering all of the (objective) circumstances." Id. at 255 . Stationhouse

questioning does not, in itself, constitute custody. Id. However, the mere fact that

an interrogation begins as noncustodial does not prevent custody from arising later;

police conduct during the encounter may cause a consensual inquiry to escalate into

a custodial interrogation. Id.

There are four general situations that 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 through third situations, the restriction

upon freedom of movement must amount to the degree associated with an arrest as

opposed to an investigative detention. Id. The first through the third situations are

not presented here. The sole question before us is whether, during the encounter with

appellant when he gave his statement at the police station, probable cause to arrest

appellant developed during the course of the encounter, which is the fourth situation.

Id.

Concerning the fourth situation, the officers' knowledge of probable cause

must be manifested to the suspect; such manifestation could occur if information

substantiating probable cause is related by the officers to the suspect or by the suspect

to the officers. Id. Moreover, the fourth situation does not automatically establish

custody. Id. Rather, custody is established in the fourth situation 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.

In Dowthitt , the Court of Criminal Appeals held that "custody" began when Dowthitt

admitted to his presence during the murders because "a reasonable person would have

realized the incriminating nature of the admission," and other factors were present

that "involv[ed] the exercise of police control" over him. Id. at 257 . These other

factors included a lengthy interrogation lasting over 12 hours from the time he first

appeared at the police station to the time he made the incriminating statement, police

officers accompanying him to the restroom, and police officers ignoring his requests

to see his wife. Id.

The United States Supreme Court addressed the question of "custody" in the

context of a stationhouse interrogation in Beheler and Mathiason . California v.

Beheler , 463 U.S. 1121, 1124-25 , 103 S. Ct. 3517, 3519-20 (1983); Oregon v.

Mathiason , 429 U.S. 492, 495 , 97 S. Ct. 711, 714 (1977). In Beheler , the suspect

voluntarily accompanied the police to the station, talked for less than 30 minutes, and

was permitted to return home. 463 U.S. at 1122 , 103 S. Ct. at 3518 . The Court held

that this interview was not custodial. Id. at 1125 , 103 S. Ct. at 3520 . In Mathiason ,

the suspect came voluntarily to the police station, was immediately informed that he

was not under arrest, participated in a 30-minute interview, and left the police station

without hindrance. 429 U.S. at 493-94 , 97 S. Ct. at 713 . The Court likewise held

that interview to be non-custodial. Id. at 495 , 97 S. Ct. at 714 ; see also Meek v. State ,

790 S.W.2d 618, 622 (Tex. Crim. App. 1990) (finding no custody when suspect came

to station voluntarily at time of his own choosing, was allowed to step outside

building and go unaccompanied to his car during interviews, and "a few hours" later

was allowed to leave unhindered after statements were completed); Turner v. State ,

685 S.W.2d 38, 41-43 (Tex. Crim. App. 1985) (finding no custody when witness who

was not suspect was contacted by police, voluntarily went to police station to make

a statement, and was immediately read warnings when he made statement that caused

police to suspect him); Dancy v. State , 728 S.W.2d 772, 777-79 (Tex. Crim. App.

1987) (finding no custody when suspect voluntarily came with police to station,

voluntarily answered questions, gave hair samples, allowed police to take his shoes

to run print comparisons, and was arrested at conclusion of 38-minute interview).

Although a statement made by a person is sufficient to establish probable

cause, the statement is not custodial if the court determines based on other factors that

the person was not under arrest. Garcia v. State , 106 S.W.3d 854, 858-59 (Tex.

App.--Houston [1st Dist.] 2003, pet. ref'd). Garcia, the defendant, was not in

custody when he voluntarily went to the police department, and after he was told that

he could leave, he voluntarily gave a videotaped statement. Id. at 858 . Garcia made

an admission establishing probable cause during his statement, which took 30

minutes. Id. at 858-598 . We held that, although his statement was sufficient to

establish probable cause, other factors showed that Garcia was not under arrest. Id.

Only two officers were with Garcia, and neither was armed. Id. at 858 . After the

statement, Garcia was taken to a visitor's room where he was left, unguarded, with

his girlfriend. Id. at 859 . Nothing prevented Garcia from simply leaving the police

department. Id. We held that "a reasonable person in [Garcia's] position would not

believe that he was restrained to the degree associated with a formal arrest." Id.

At the hearing on the motion to suppress, Sergeant Muniz, Detective White,

and appellant testified. The testimony of Sergeant Muniz and Detective White shows

that on the afternoon of November 7, 2001, Sergeant Muniz, Detective White, and

other officers went to appellant's apartment. When the officers arrived at the

apartment, they found small children there, unaccompanied by adults. After a short

while, appellant arrived at the apartment. Detective White, who had been assigned

to Maria's case since 1994, knew appellant and introduced Sergeant Muniz. Sergeant

Muniz acknowledged that he "probably could have told" appellant something to the

effect that the children could be taken away if they were being left abandoned.

However, Sergeant Muniz denied making any threat to call CPS about the unattended

children at the apartment or making any threats concerning appellant's children.

Sergeant Muniz was in plain clothes with his police identification displayed.

Detective White told appellant that they would like to speak with him. Detective

White told appellant that they just wanted to talk to him about Maria's "missing

person case." Appellant agreed to go to the Sugar Land Police Department to give

an interview. Appellant's mother remained at the apartment with the children.

Because he did not have a car to drive, appellant rode with Sergeant Muniz in

an unmarked pickup truck, where they made small talk on the way to the police

station. Appellant rode in the front seat of the truck, without any handcuffs. On the

drive to the police station, appellant's wife was called to let her know that appellant

was at the police station. She also agreed to come to the police station after work that

day to give a statement.

At around 5:00 p.m., they arrived at the Sugarland Police Department, which

was undergoing remodeling, and entered a small office in a portable building.

Sergeant Muniz explained that when he began speaking with appellant, appellant was

not in custody and was free to leave. Only Sergeant Muniz and appellant were

present during the interview. Sergeant Muniz explained that he never threatened

appellant "with anything," did not make any promises to him, and that appellant

voluntarily agreed to give a statement. Sergeant Muniz read appellant the warnings

set out in article 38.22 of the Code of Criminal Procedure, even though Muniz

believed that was not required because appellant was not in custody. See Tex. Code

Crim. Proc. Ann. art. 38.22, § 3(a) . Appellant waived his rights and agreed to talk

to the Sergeant, who interviewed appellant for about 15 or 20 minutes. Appellant

quickly admitted to being involved with Maria's death. Appellant told Sergeant

Muniz that he wanted to give a statement because he had "a premonition that Ms.

Barrientos' ghost came and visited him one night and said two men wanted to come

talk to him, and he wanted to get it off his chest, he wanted to come through with the

truth."

After this, Sergeant Muniz began recording appellant's statement. The

recording began at 5:38 and ended at 5:58. On the tape, appellant acknowledged that

he had been read " Miranda warnings." When the interview finished, appellant asked

Sergeant Muniz if he was going to be arrested. Sergeant Muniz told him "not yet, not

at that time." After the taped interview, appellant sat in the lobby of the building that

had the front door wide open, where he sat by himself, before his wife came to the

station in her car. Sergeant Muniz said that appellant did not ask for an attorney.

Sergeant Muniz did offer to get appellant some cigarettes.

Appellant's testimony was considerably different from the police officers'

testimony. Appellant said that Sergeant Muniz told him "you have to come with me"

to the Police Department. Appellant claims that Sergeant Muniz told him that if he

did not come to the Department, he could lose his kids because Sergeant Muniz

would call Child Protective Services to tell them that appellant had abandoned his

children. Appellant testified that he asked Sergeant Muniz if he needed a lawyer, but

was told that he did not need one because "[w]e're just going to be chatting."

Claiming that he did not understand the rights Sergeant Muniz read to him, appellant

related that he spoke to the police officers due to his worry that he might lose his

children.

After the hearing, the trial court ruled that the statements to Sergeant Muniz

and Detective White were admissible because the "statements were not the result of

custodial interrogation." The trial court did not file findings of fact regarding its

rulings. Appellant contends that he was in custody at the point that he admitted to

Sergeant Muniz his role in Maria's death, and that Sergeant Muniz considered

appellant a suspect and did not tell appellant that he was free to leave. We conclude

that appellant's statements made during the initial interview by Sergeant Muniz that

acknowledged his involvement in the murder of Maria provided sufficient probable

cause to arrest him. See Dowthitt , 931 S.W.2d at 257 . However, we conclude that

the other circumstances present, when viewed in a light most favorable to the trial

court's ruling, are sufficient to show that he was not in custody. Although appellant

rode with a police officer to the station, the record shows that the police car was an

unmarked vehicle and that appellant chose to ride with the officer because he did not

have a car. The record also shows that although appellant's rights were not read to

him while the audio tape was recording his statement, appellant acknowledged that

he had previously been read his " Miranda warnings" and Sergeant Muniz testified

that appellant waived his rights. The record also shows that appellant's interview was

short in length, lasting only 15 or 20 minutes, from the time he got to the police

station to the time he made the admissions about his involvement in the murder.

Additionally, appellant was only interviewed by one police officer, who was in plain

clothes, and in an office-like setting. Further, appellant was not threatened in any

way, was not promised anything, and voluntarily made the statement, according to the

Sergeant. Appellant was told that he was not under arrest after he made the statement

to Sergeant Muniz, and he sat in a lobby with an open front door.

The facts here are unlike the lengthy 12-hour period involved in Dowthitt ,

which included other circumstances that showed that Dowthitt was in custody. See

Dowthitt , 931 S.W.2d at 256 . Instead, the situation here is more like Garcia , which

held that Garcia was not in custody, despite his statements that gave the officers

probable cause to arrest him. See Garcia , 106 S.W.3d at 858-59 . We hold that

although appellant's statements were sufficient to establish probable cause to arrest

him, the other circumstances present would not "lead a reasonable person to believe

that he is under restraint to the degree associated with an arrest." See Dowthitt , 931

S.W.2d at 254 ; Garcia , 106 S.W.3d at 859 . We further hold that because the

statement was not made while appellant was in custody, it did not need to comply

with article 38.22 of the Code of Criminal Procedure, and thus the trial court did not

err by admitting the statement. See Tex. Code Crim. Proc. Ann. art. 38.22, § 3(a);

Woods , 152 S.W.3d at 116 .

We overrule appellant's third issue.

Subsequent Statements to Police Officers

In his fourth issue, appellant asserts that his subsequent statements made after

the audio-taped statement to Sergeant Muniz were inadmissible as "fruits of the

poisonous tree" and should not have been admitted.

After Sergeant Muniz recorded appellant's statement, he told Detective White

that appellant had confessed. Within a short time, perhaps five minutes, Detective

White sat down with appellant, interviewing him and preparing a written statement.

This interview took from 30 minutes to an hour. At the end of this time, appellant

signed the written statement, which had been typed by Detective White.

Immediately after signing the statement, appellant left with other officers to

show them where he and his wife had dumped Maria's body. He was gone for

approximately four hours. He arrived back at the police department around 1:00 a.m.

Appellant gave an additional statement to Detective White that was recorded with an

audio tape.

After the second statement, Detective White asked appellant to return late in

the morning or in the early afternoon of that same day, November 8, 2001. Appellant

voluntarily returned and gave a third statement to Detective White beginning at 1:06

p.m. This third statement was also recorded by audio tape.

An appellant waives a ground for appeal if that point is not raised before the

trial court. See Martinez v. State , 17 S.W.3d 677, 682-83 (Tex. Crim. App. 2000)

(citing Tex. R. App. P. 33.1). To preserve a complaint for appeal, the objection at trial

must conform with the grounds asserted in the appeal. See id. ; Wade v. State , 164

S.W.3d 788, 792-93 (Tex. App.--Houston [14th Dist.] 2005, no pet).

Here, appellant's written motion to suppress and his arguments to the trial court

concerning the motion to suppress are premised on the contention that he was not

properly informed of his rights before the statements were made and that he was in

custody when the statements were made. On appeal, appellant contends for the first

time that the statements to Detective White "were 'the product of the fruits of the

poisonous tree' of SGT. MUNIZ'S prior acts." Appellant urges this Court to apply

the four-factor "attenuation of the taint" analysis of Brown v. Illinois , 422 U.S. 590 ,

95 S. Ct. 2254 (1975). Because this basis for the objection to the three statements

given to Detective White was not raised before the trial court, appellant has not

preserved this complaint for appeal. See Martinez , 17 S.W.3d at 683 . We hold that

appellant waived his complaint about the subsequent statements given to Detective

White. See Williams , 17 S.W.3d at 682-83 ; Wade , 264 S.W.3d at 792-93 . (8)

We overrule appellant's fourth issue.

Reliability of Expert Testimony Regarding Cadaver Dogs

In his fifth issue, appellant asserts that the trial court erred by admitting

testimony that the cadaver dogs alerted on the scent of human remains because the

evidence was not shown to be reliable .

A. Standard of Review and Rules for Determination of Reliability

A trial court's decision to admit or exclude scientific testimony is reviewed for

an abuse of discretion and a reviewing court will uphold the decision if it is within

the zone of reasonable disagreement. Sexton v. State , 93 S.W.3d 96, 99 (Tex. Crim.

App. 2002). A trial court abuses its discretion when it acts without reference to any

guiding rules or principles. Montgomery v. State , 810 S.W.2d 372, 380 (Tex. Crim.

App. 1990).

Rule 702 of the Texas Rules of Evidence allows a qualified expert to provide

evidence about a subject that requires specialized knowledge. Tex. R. Evid. 702. In

assessing admissibility under Rule 702, the trial court must "determine whether the

testimony is sufficiently reliable and relevant to help the jury in reaching accurate

results." Kelly v. State , 824 S.W.2d 568, 572 (Tex. Crim. App. 1992). In Kelly , the

Court of Criminal Appeals set forth a three-prong reliability test and identified seven

non-exclusive factors for courts to consider in assessing reliability of scientific

evidence. (9) Id. at 573 ; see also Winston v. State , 78 S.W.3d 522, 526 (Tex. App.--

Houston [14th Dist.] 2002, pet. ref'd). A ppellant suggests that the Kelly factors

should be applied here.

However, when the expert evidence concerns "areas of soft science and

non-traditional sources of expert testimony," the Court of Criminal Appeals has

adopted an "appropriately tailored translation of the Kelly test." State v. Medrano ,

127 S.W.3d 781, 785 (Tex. Crim. App. 2004) (citing Nenno v. State , 970 S.W.2d 549,

561 (Tex. Crim. App. 1998), overruled on other grounds by State v. Terrazas , 4

S.W.3d 720 (Tex. Crim. App. 1999)). In Nenno , the Court stated that when

addressing fields that are based upon experience or training as opposed to scientific

methods, the appropriate questions for assessing reliability are (1) whether the field

of expertise is a legitimate one, (2) whether the subject matter of the expert's

testimony is within the scope of the field, and (3) whether the expert's testimony

properly relies upon or utilizes the principles involved in the field. 970 S.W.2d at

561 . We agree with the Fourteenth Court of Appeals's determination that the

reliability of expert testimony that describes a dog's alert to a scent is determined by

using the Nenno criteria. See Winston , 78 S.W.3d at 526 ("Since interpretation of a

dog's reaction to a scent lineup is based upon training and experience, and not

scientific method, we apply the less rigorous Nenno test in this case."). (10)

B. Reliance Upon or Utilization of Principles in the Field

Here, appellant has not challenged the first two prongs of Nenno that ask

whether the field of expertise is a legitimate one and whether the subject matter of the

expert's testimony is within the scope of that field. See Nenno , 970 S.W.2d at 561 .

Appellant's challenge concerns only the third prong that asks whether the expert's

testimony properly relies upon or utilizes the principles involved in the field of

expertise. See id.

The Court of Criminal Appeals has not established criteria for determining

whether the expert's testimony concerning cadaver dogs properly relies upon or

utilizes the principles involved in the field. We, however, have applied three factors

for determining reliability of expert testimony concerning dogs that alert to the scent

of humans. Risher v. State , No. 01-05-00960-CR, 2006 WL 3518145, at *2 (Tex.

App.--Houston [1st Dist.] 2006, pet. filed ) (applying three factors to determine

whether third prong of Nenno is met in human-scent lineup evidence of convicted

drug dealer); see also Winston , 78 S.W.3d at 527 (analyzing third prong of Nenno

utilizing three-factor approach to determine admissibility of human-scent lineup

evidence in burglary case). As here, the dogs in Risher and Winston alerted to human

scents. See Risher , 2006 WL 3518145, at *3 ; Winston , 78 S.W.3d at 527 . However,

the dog in Risher involved a human-scent lineup and the dog in Winston identified

a burglary suspect based on human-scent left at the scene. Although Risher and

Winston did not involve cadaver dogs, we conclude that the factors used by our Court

in Risher and by the Fourteenth Court of Appeals in Winston are equally applicable

to cadaver dogs. See Risher , 2006 WL 3518145, at *2 ; Winston , 78 S.W.3d at 527 .

To determine whether the testimony describing the alerts by the cadaver dogs

meets the third prong in Nenno , we must examine the (1) the qualifications of the

particular trainer, (2) the qualifications of the particular dog, and (3) the objectivity

of the particular cadaver search. See Risher , 2006 WL 3518145, at *2 (recognizing

foundation for dog's reliability for human-scent lineup by examining qualifications

of particular trainer; qualifications of particular dog; and objectivity of particular

lineup) .

1. Qualifications of Trainer s

The two dogs, Missy and Chloe, each had trainers, and, in addition, Deputy

Pickett testified about his role in training these dogs. We address each of their

qualifications. See Risher , 2006 WL 3518145, at *2-3 .

Missy, the dog that made the initial alert in this case was trained by Ja' Na

Bickel, the owner, and Deputy Pikett, a trainer. Bickel testified that after she retired

from a previous job she founded "Special Canines," an organization that assists law

enforcement agencies and families to find bodily remains. She also testified that she

has conducted cadaver searches since 1994. Bickel has two dogs that she trains in

cadaver searching, Missy and a young Catahoula. Bickel has received canine training

from Deputy Pikett as well as other experts at seminars.

Chloe is the dog that independently confirmed the scent initially detected by

Missy. Ann Spurlock, Chloe's owner and co-trainer, testified that her work with dogs

began as a professional dog obedience trainer. Spurlock initially became involved

in searches as an assistant to other dog handlers. She started training Chloe in

tracking and trailing, but moved into cadaver work when Chloe showed a natural

propensity to want to find and search in a more free-form manner.

Deputy Pikett, who has a Bachelor of Science degree and a Master of Science

degree in Chemistry, both from the University of Southern Alabama, trained Missy

and Chloe, the dogs used in this case. He began his canine training in 1989 by "old

timers" with forty to fifty years experience. Pikett has attended over 176 hours of dog

training seminars including some hands on training conducted by experts in the field.

Deputy Pikett's canine work began with trailing people and progressed to cadaver

work. He has written articles for the National Bloodhound Bulletin and the South

Central Bloodhound Newspaper and has lectured for the Sugar Land Police

Department as well as for the FBI on several occasions. Deputy Pikett has trained

dogs for the cities of Galveston, Houston, Dallas, Bellaire, and the Texas Parks and

Wildlife Department. In 1997, the FBI approached Deputy Pikett to search for

missing people. Deputy Pikett testified that experts in the community have observed

his dog training technique and expressed approval. Additionally, Deputy Pikett has

testified as an expert in canine training in other cases and his testimony has never

been excluded. See e.g. Winston , 78 S.W.3d at 527 (holding that testimony from

Deputy Pikett describing dog's alert in scent lineup admissible). We conclude that

the trainers were qualified to handle Missy and Chloe, the cadaver dogs used in this

case.

2. Qualifications of Dog s

We must next examine the qualifications of the dogs, Missy and Chloe. In

determining whether a dog used in a scent lineup was qualified, we have applied five

factors. Risher , 2006 WL 3518145, at *3 (citing Winston , 78 S.W.3d at 527-28 ). In

Risher , we held that a scent-lineup dog is qualified if "it (1) is of a breed

characterized by acuteness of scent and power of discrimination, (2) has been trained

to discriminate between human beings by their scent, (3) has been found by

experience to be reliable, (4) was given a scent known to be that of the alleged

participant of the crime, and (5) was given the scent within the period of its

efficiency." Id . (applying five factors to assess reliability of dog in human scent

lineup). The Fourteenth Court of Appeals applied these same five factors in Winston

to determine the reliability of a dog that tracked a burglary suspect based on human

scent left at the crime scene. Winston , 78 S.W.3d at 527-28 . We must determine

whether these five factors are equally applicable to searches by cadaver dogs.

Searches by cadaver dogs are different from searches by dogs for scents left by

live humans. Deputy Pikett testified that cadaver searching is a less rigorous skill

because it only requires the dog to be able to distinguish between human scents and

animal scents, and the dog need not further distinguish between individual humans.

As we explain below, because the skills necessary for a cadaver dog differs from the

skills necessary for scent lineups or the tracking of suspects, we conclude that only

some of the five factors in Risher apply to searches by cadaver dogs. See Risher ,

2006 WL 3518145, at *4 .

a. Breed Characterized by Acuteness of Scent

Deputy Pikett testified that all dogs have a more acute sense of smell than

humans and that bloodhounds have an olfactory sense that is 26 times that of a

human. Deputy Pikett explained that because a cadaver dog need not distinguish

between the scents of different individuals and need only distinguish between the

scent of human and animal remains, a breed such as a bloodhound that is traditionally

known for its acuteness of scent is not necessary to use as a cadaver dog. Deputy

Pikett further explained that a bloodhound is typically not a good cadaver search dog

because bloodhounds are "not great obedience dogs" and typically must be worked

on a lead, or leash. Deputy Pikett testified that in a large area search, a dog that can

work off-lead is more credible because it is free to make an independent find, without

the possibility that its handler will lead it to a particular area. Deputy Pikett said that

other breeds, "such as Rottweilers mixed-breeds, Lab[radors] and so forth" can

perform as cadaver dogs. We conclude that the breed of dog characterized by

acuteness of scent is not determinative of a cadaver dog's qualification. However,

we slightly modify this factor to examine whether the dog type or breed typically

works well off-lead.

b. Trained to Discriminate Between Human Beings by Scent

Cadaver dogs are not trained to discriminate between human beings based on

scent because the identity of the body being searched for is generally not in dispute.

Deputy Pikett explained that the important distinction for a cadaver dog to master is

between human remains and animal remains. The training begins with fairly fresh

cadaver scent in a relatively easy location. The dogs progress to older body scents

and then to the introduction of foreign scent distractions such as deer, horse, or cow

bones. We conclude that this requirement must be adapted slightly for determination

of the reliability of cadaver dogs by examining whether the dog has been trained to

discriminate between human cadaver scents and animal scents.

c. Found by Experience to Be Reliable

Proven reliability must be a qualifying characteristic of a cadaver dog, just like

the need for proven reliability of dogs used in scent-lineups and the tracking of

suspects. Deputy Pikett testified that a dog that cannot pass the training tests--for

example, by failing to distinguish human and animal remains--will be retired from

cadaver search work. To ensure that the dog can distinguish human and animal

scents, Deputy Pikett explained that a dog in training must first prove that it can

actually find a human scent, and then the training progresses to older scents, followed

by the introduction of foreign scents. We therefore conclude that this factor is

applicable to the qualifications and reliability of a cadaver dog.

d. Given the Scent of the Participant of Crime

As explained above, the use of a cadaver dog is not for identification of a

particular person by that person's scent. The cadaver dog searches only for the scent

of human remains and is not used to track or identify a particular person's scent. We

therefore conclude that this factor does not apply to the qualifications of a cadaver

dog.

e. Given Scent Within the Period of Efficiency

Unlike scent-lineups, cadaver searches are typically performed substantially

after the crime has been committed. Deputy Pikett testified that a dog trained to find

human remains can detect the scent remaining in the soil from a decomposing body,

even though physical remains are no longer present. Likewise, Deputy Pikett testified

that when a body has lain on the ground and decomposed, a dog can pick up the smell

of the water, the blood, and the disintegrating organs that have seeped into the soil.

We therefore conclude that this element is not relevant in the context of cadaver

searching because the immediacy of the search is not indicative of the efficiency of

the scent.

Having examined the five factors in Risher and Winston , we have determined

that those factors must be adapted slightly to meet the unique function of a cadaver

dog--to detect deteriorating human remains. We conclude that the factors we must

examine to determine a cadaver dog's qualifications and reliability are whether the

dog (1) is a breed or type that typically works well off-lead, (2) has been trained to

discriminate between human scents and animal scents, and (3) has been found by

experience to be reliable. See Risher , 2006 WL 3518145, at *4 . These factors are not

exclusive. Other factors may be considered in an appropriate case.

f. Application of the Adapted Factors

We apply the three factors described above to determine whether Missy and

Chloe were qualified cadaver dogs. The first factor is whether the type or breed of

dog works well off-lead. Missy is a mixed-breed dog, a Sharpei-shepherd mix.

Chloe is a Rottweiler. Deputy Pikett testified that mixed-breed dogs and Rottweilers

are capable of performing as cadaver dogs, and that cadaver dogs are dogs that work

well off-lead. Although his testimony does not directly show that these dogs work

well off-lead, his testimony reasonably supports the inference. Thus, the first factor

weighs slightly in favor of the implied finding that Missy and Chloe were qualified

and reliable.

The second factor concerns the training of the dog to distinguish between

human cadaver scents and animal scents. Before the search in 2001, Bickel and her

dog Missy had been to at least 10 different training seminars in addition to training

several times a week. Deputy Pikett testified that he had trained extensively with

Missy and she is a very good dog. In 2000, Missy was certified by two local

organizations and two national organizations, including the North American Search

Dog Network and the Lone Star Search and Rescue Dog Association.

Spurlock testified that she and Chloe, the confirmatory dog, had received

training at various seminars from dog trainers and from law enforcement personnel

and that Chloe exhibited a meticulous attitude towards cadaver work. In November

2001, Chloe had received extensive training for one and one-half years, was certified

within the volunteer group of which she and Spurlock were a part, but was not

certified by any national organization. The local certifications were done by an

outside evaluator that utilized the same standards as the national organizations. Only

dogs who meet the standards will be used for a cadaver search. The State's witnesses

established that these cadaver dogs had received training and were certified to be used

in searches. The second factor weighs in favor of the implied finding that the dogs

were qualified to conduct the cadaver search.

The third factor is whether the dog has been shown to be reliable in its prior

experiences searching for cadavers. Bickel testified that as of November 9, 2001,

Missy already had a good history of finding human remains. After receiving her

certification, Bickel testified that she had never known Missy to indicate a false

positive, such as alerting on animal remains. Spurlock testified that in Chloe's

training she performed very well when distractions such as animal bones or fluids

were put out in the field and was still able to find the human remains. Spurlock

testified that she had tested Chloe using many different scenarios such as various

fluid samples from the morgue and items buried as deep as five feet. Spurlock also

testified that she and Chloe had conducted "numerous searches for remains" and that

this case was the first time she had been called to court to testify about a cadaver

search. Spurlock testified that during her training and searches, Chloe had never

given an alert that was later proved false. Deputy Pikett similarly testified that based

upon his training and dealing with Missy and Chloe, they were reliable each time he

used them. The witnesses testified that a dog that could not consistently show its

reliability in training was not used for actual searches. The witnesses' testimony

established that Missy and Chloe had never falsely indicated human remains and that

Missy and Chloe could consistently distinguish human remains from other scents.

The third factor weighs in favor of the implied finding that the dogs were qualified.

The three factors, when applied to Missy and Chloe, support the trial court's

implied finding that the dogs were qualified to search for cadavers. We conclude that

the record supports the trial court's implied finding that the dogs were qualified to

conduct the search for the cadaver.

3. Method of Search

The third factor under the third prong of Nenno requires that we examine the

objectivity of the particular search, which here is the manner that the search for the

cadaver was conducted. See Risher , 2006 WL 3518145, at *4 . Deputy Pikett

testified that he observed both dog and handler teams used in this case during their

searches for Maria's body on November 9, 2001. He stated that both handlers used

their dogs in the manner generally employed by cadaver dog teams. Bickel and

Spurlock also testified that their dogs followed the practices and procedures that are

generally used in searches by cadaver dogs. The two dogs worked independently of

one another, so that they would not influence each other. Bickel testified that Missy

performed a grid search on three areas on the property, but only alerted on one.

Spurlock testified that there were no outside influences on Chloe's search that would

have caused her to alert in a designated area. According to Spurlock, Chloe was

simply positioned downwind on the property and instructed to start. Each dog

performed its search independently from the handlers, working off-lead. Finally, the

dogs alerted to the same location that appellant had indicated Maria's body had been

placed. We conclude that the record shows that the search for the cadaver was

conducted objectively, using practices and procedures that are generally used in

searches by cadaver dogs.

We hold that the proper foundation was established as required by the Nenno

test and that the trial court did not abuse its discretion in determining that the

evidence regarding the cadaver dogs was reliable and admissible. See Winston , 78

S.W.3d at 522 .

We overrule appellant's fifth issue.

Whether Expert Testimony About Cadaver Dogs Is Unfairly Prejudicial

In his sixth issue, appellant asserts that the trial court erred by admitting

testimony that the cadaver dogs alerted on the scent of human remains because the

evidence was more prejudicial than probative under Rule 403 of the rules of evidence.

See Tex. R. Evid. 403. Appellant asserts that the evidence has little probative value

because no human remains were found and, thus, the dogs could have been mistaken.

Appellant further asserts that because Deputy Pikett, Bickel, and Spurlock all

admitted on cross-examination that even if the dogs alerted to the scent of human

remains, there were a "myriad of other explanations" for how the scent of remains got

to the location identified by the dogs. (11)

A trial court's decision to admit or exclude testimony is reviewed for an abuse

of discretion. See Sexton , 93 S.W.3d at 99 . Rule 403 provides that relevant evidence

"may be excluded if its probative value is substantially outweighed by the danger of

unfair prejudice, confusion of the issues, or misleading the jury." Tex. R. Evid. 403.

The Court of Criminal appeals has identified a non-exclusive list of factors to apply

in making a rule 403 analysis. Reese v. State , 33 S.W.3d 238, 240-41 (Tex. Crim.

App. 2000). These factors include, but are not limited to,

(1) how probative the evidence is;

(2) the potential of the evidence to impress the jury in an irrational

but indelible way;

(3) the time the proponent needs to develop the evidence; and

(4) the proponent's need for the evidence.

Id. A trial court's ruling on a rule 403 objection is reviewed for an abuse of

discretion. Id. at 241 .

Under the first factor, we note that the evidence of the cadaver dogs is

probative. Two dogs independently indicated that they detected the scent of human

remains in the same spot that appellant stated that he had dumped Maria's body. The

second factor requires that we examine the potential of the evidence to impress the

jury in an irrational but indelible way. The evidence from the cadaver dog's alert on

the scent of human remains at the location where appellant states that he dumped

Maria's body merely corroborates appellant's own statements. We cannot conclude

that the evidence describing the alerts by the dogs would impress the jury in an

irrational and indelible way. The third factor concerns the time that the proponent

needs to develop the evidence. The record does not clearly indicate the exact time

required by the State to present the testimony of Deputy Pikett, Bickel, and Spurlock

to the jury, however, it was less than half of one day of trial. (12) The fourth factor also

supports the trial court's ruling to admit the evidence. The State needed the evidence

to corroborate appellant's statements and to show that Maria was dead because her

body was never recovered. Thus, under the factors identified in Reese , we conclude

that the trial court did not abuse its discretion in finding that the dangers of unfair

prejudice, confusion of the issues, or misleading the jury did not "substantially

outweigh" the probative value of the evidence regarding the cadaver dogs.

Appellant cites Wiley v. State , 74 S.W.3d 399 (Tex. Crim. App. 2002) in

support of his contention that the evidence regarding the cadaver dogs would confuse

the issues or mislead the jury. Appellant quotes the following footnote:

The danger of "confusion of the issues" and "misleading the jury" arises

when circumstantial evidence tends to sidetrack the jury into

consideration of factual disputes only tangentially related to the facts at

issue in the current case. The classic explanation of this danger comes

from Dean Wigmore: "The notion here is that, in attempting to dispute

or explain away the evidence thus offered, new issues will arise as to the

occurrence of the instances and the similarity of conditions, [and] new

witnesses will be needed whose cross examination and impeachment

may lead to further issues." 2 John H. Wigmore, Evidence § 443, at

528-29 (Chadbourn rev. 1979). In short, the evidence is a "rabbit trail."

Wiley , 74 S.W.3d at 407 n.21. In Wiley , the appellant, who was charged with arson,

wanted to introduce evidence that another person may have "assisted" an "alternate

perpetrator" set the fire at issue. Id. , 74 S.W.3d at 406 . However, this other person

was an individual with a severely limited mental capacity and Wiley had testified to

the grand jury that he did not believe the individual could have set the fire. Id. The

court noted that there was no evidence that the individual was involved with the fire,

only speculation that this was so. Id. at 407 . Thus, if the trial court had allowed

Wiley to present the evidence of the other individual, "it would have forced the State

to attempt to disprove the nebulous allegation that perhaps [the other individual] was

somehow involved as an assistant to some unknown sophisticated arsonist." Id. Such

evidence would also have turned the jury away from deciding the only issue in the

case--whether Wiley had set the fire--and speculate whether an individual who was

not on trial may have been involved. Id. Here, the evidence was probative of

whether appellant had disposed of Maria's body where he said that he did, and the

evidence did not point to other suspects. Nor did it require the jury to speculate on

an issue that it was not asked to decide in the case. See id. at 407 . We hold that the

trial court did not err by overruling appellant's rule 403 objection.

We overrule appellant's sixth issue.

Corpus Delicti

Appellant's seventh issue challenges the trial court's refusal to instruct a

verdict of not guilty due to lack of proof of the corpus delicti . Specifically, appellant

asserts that the State failed to prove the commission of an offense because his

uncorroborated statements alone are not sufficient to show that a crime was

committed.

A criminal conviction cannot be based upon a defendant's extrajudicial

confession unless the confession is corroborated by independent evidence tending to

establish the corpus delicti . Gonzales v. State , 190 S.W.3d 125, 130 (Tex.

App.--Houston [1st Dist.] 2005, pet. ref'd), cert. denied , Gonzales v. Texas , 127 S.

Ct. 504 (2006). Texas defines corpus delicti as harm brought about by the criminal

conduct of some person. Id. at 130-31 . Some evidence, independent of appellant's

statements, must show that the crime actually occurred, though the independent

evidence does not have to identify the defendant as the culprit. Salazar v. State , 86

S.W.3d 640, 644-45 (Tex. Crim. App. 2002). The corroborating evidence need not

prove the underlying offense conclusively; all that is required is that some evidence

makes the commission of the offense more probable than it would be without the

evidence. Cardenas v. State , 30 S.W.3d 384, 390 (Tex. Crim. App. 2000); Chiles v.

State , 988 S.W.2d 411, 414 (Tex. App.--Houston [1st Dist.] 1999, pet. ref'd).

In this case, there were several pieces of evidence that make it more probable

than not that Maria was murdered. Maria disappeared suddenly in June 1994 without

any explanation to her friends or family. Her bank account was abandoned with a

hundred dollar balance, even though she did not have much money. Despite witness

statements that she carried her bible with her everywhere, it was found at her home.

Her daily prayer partner of eleven years has not heard or seen her since she

disappeared. She had a job as a nanny that she never returned to after leaving work

the day she was last seen. Her car was found abandoned, unlocked, with her purse

and keys undisturbed inside. Although she had previously visited family in Mexico,

none of her relatives have seen or heard from her since May 1994. Further, appellant

and his wife lived in Maria's home, but did not assist in searching for her after she

disappeared. Tests revealed the possible presence of blood in the kitchen, hallway,

and bathroom of Maria's home. This was consistent with the statement appellant

gave to police that Maria had been murdered in the kitchen and her body moved to

the bathroom. Appellant's car revealed the possible presence of blood in the back

floorboard area. In addition, two cadaver dogs trained to detect the scent of human

remains independently alerted at the same spot that appellant identified as the location

where he disposed of Maria's body. We conclude that these combined circumstances

are some evidence that makes the commission of the murder "more probable than it

would be without the evidence." Cardenas , 30 S.W.3d at 390 ; Chiles , 988 S.W.2d

at 414 ; see also Fisher v. State , 851 S.W.2d 298, 303 (Tex. Crim. App. 1993) (finding

sufficient corroborating evidence to prove corpus delicti where victim vanished

suddenly, her personal affairs--such as friendships and her bank account--were

unresolved, she did not have much money with which to leave town, and blood was

found in victim's home). We hold that the trial court did not err by finding sufficient

the proof of the corpus delicti .

We overrule appellant's seventh issue.

Conclusion

We affirm the judgment of the trial court.

Elsa Alcala

Justice

Panel consists of Justices Taft, Alcala, and Hanks.

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

1. Pamela McInnis, a serologist, testified that Luminol is a chemical agent used to help

find areas where there might be diluted blood stains that cannot be seen. It is called

a presumptive indicator of the existence of blood because it reacts and glows when

it comes in contact with other substances in addition to blood.

2. DPS was unable to detect any blood; however, the test did not rule out the presence

of blood.

3. Miranda v. Arizona , 384 U.S. 436, 479 , 86 S. Ct. 1602, 1630 (1966).

4. Specifically, appellant was read the warnings in article 38.22 of the Texas Code of

Criminal Procedure. Article 38.22 prescribes the requirements to make oral custodial

statements admissible at trial and, among other things, codifies the Miranda warnings

required to be given prior to custodial confessions. Tex. Code Crim. Proc. Ann. art.

38.22, § 3(a) (Vernon 2005); Miranda , 384 U.S. at 479 , 86 S. Ct. at 1630 . However,

article 38.22 requires a fifth warning not explicitly required under Miranda , namely

that the accused "has the right to terminate the interview at any time." Tex. Code

Crim. Proc. Ann. art 38 .22, § 2(a).

5. In a capital trial in which the State is seeking the death penalty, and thus prospective

jurors are individually questioned during voir dire, a different test determines when

voir dire begins for the purpose of a timely request of a jury shuffle. Davis v. State,

782 S.W.2d 211, 215 (Tex. Crim. App. 1989); see also Tex. Code Crim. Proc. Ann.

art. 35.17(2) (Vernon 2006) ("In a capital felony case in which the State seeks the

death penalty, the court shall propound to the entire panel of prospective jurors

questions concerning the principles, as applicable to the case on trial, of reasonable

doubt, burden of proof, return of indictment by grand jury, presumption of innocence,

and opinion.").

Voir dire begins in a capital felony case in which the State seeks the

death penalty when the court, rather than the parties, begins questioning the venire.

Davis , 782 S.W.2d at 215 .

6. The Code of Criminal Procedure provides,

Art. 28.10. Amendment of indictment or information

(a) After notice to the defendant, a matter of form or substance in an

indictment or information may be amended at any time before the date

the trial on the merits commences. On the request of the defendant, the

court shall allow the defendant not less than 10 days, or a shorter period

if requested by the defendant, to respond to the amended indictment or

information.

(b) A matter of form or substance in an indictment or information may also

be amended after the trial on the merits commences if the defendant

does not object .

(c) An indictment or information may not be amended over the defendant's

objection as to form or substance if the amended indictment or

information charges the defendant with an additional or different

offense or if the substantial rights of the defendant are prejudiced.

Tex. Code Crim. Proc. Ann. art. 28.10 (Vernon 2006) (emphasis added).

7.

Section 3(a) of article 38.22 provides,

No oral or sign language statement of an accused made as a result of custodial

interrogation shall be admissible against the accused in a criminal proceeding

unless:

(1) an electronic recording, which may include motion picture,

video tape, or other visual recording, is made of the statement;

(2) prior to the statement but during the recording the accused is

given the warning in Subsection (a) of Section 2 above and the

accused knowingly, intelligently, and voluntarily waives any

rights set out in the warning;

(3) the recording device was capable of making an accurate

recording, the operator was competent, and the recording is

accurate and has not been altered;

(4) all voices on the recording are identified; and

(5) not later than the 20th day before the date of the proceeding, the

attorney representing the defendant is provided with a true,

complete, and accurate copy of all recordings of the defendant

made under this article.

Tex. Code Crim. Proc. Ann. art. 38.22, § 3(a).

The accused must be informed of the following rights under section 2(a):

(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.

Id. § 2(a). For a statement to be admissible, strict compliance with section 3(a) is

required. Woods v. State , 152 S.W.3d 105, 116 (Tex. Crim. App. 2004).

8. We also note that we have previously held that the trial court did not err by admitting

the audio-taped statement given to Sergeant Muniz.

9. Factors that could affect a trial court's determination of reliability include, but are not

limited to, the following: (1) the extent to which the underlying scientific theory and

technique are accepted as valid by the relevant scientific community, if such a

community can be ascertained; (2) the qualifications of the expert(s) testifying; (3) the

existence of literature supporting or rejecting the underlying scientific theory and

technique; (4) the potential rate of error of the technique; (5) the availability of other

experts to test and evaluate the technique; (6) the clarity with which the underlying

scientific theory and technique can be explained to the court; and (7) the experience

and skill of the person(s) who applied the technique on the occasion in question.

Kelly v. State , 824 S.W.2d 568, 573 (Tex. Crim. App. 1992).

10. One other jurisdiction has held that evidence regarding alerts by cadaver dogs at a site

at which a murder victim's body had once been buried met criteria for admissibility

of scientific evidence. Clark v. State , 781 A.2d 913, 936 (Md. Ct. Spec. App. 2001).

Clark was convicted of the second degree murder of a six-year old child whose body

had not been found. Id. at 918 . Nearly seven years after the child's disappearance,

a cadaver dog was used

to search a cemetery based largely on a map found in Clark's

truck. Id. at 920-21 . Dan, the cadaver dog used at the cemetery, indicated an alert

in the area of a soil disturbance, which was near a headstone marked "Clark." Id. at

921 . A second cadaver dog alerted at the same spot two and one-half years after

Dan's initial alert, approximately nine years after the child's disappearance. Id. at

935 . However, no body was found. Id. During a pretrial motion in limine, an expert

in the field of forensic anthropology and the identification of human remains

explained, "In light of modern embalming and burial practices, she believed a

properly trained cadaver dog would be able to distinguish a legitimate grave from a

clandestine one within a cemetery because during embalming all body fluids are

drained from the corpse, whereas persons who bury corpses in clandestine graves

usually do not remove body fluids." Id. at 932-33 . The Clark court held that because

the Clark plot had been disturbed, appellant was present with his truck and shovel at

the grave site, a second cadaver dog alerted at the same spot, and the spot where the

cadaver dogs alerted matched the spot marked by an asterisk found on a map in

appellant's truck, there was adequate foundation for the admission of the testimony

regarding the officers' interpretations of the cadaver dogs' actions. Id. at 577-78.

11. Appellant specifically identifies several "other explanations" in his brief-- "wild

animals could have brought the body parts on the land . . . or [] floods, leaks or the fill

dirt from another location could cause the scent." These "other explanations" were

used to cross-examine Deputy Pikett, Bickel, and Spurlock.

12. The examination of Deputy Pikett began approximately 10:45 a.m. and all three

witnesses had finished their testimony before the trial court excused the jury for the

day's lunch break.