Sorto, Walter Alexander

IN THE COURT OF CRIMINAL APPEALS

OF TEXAS

NO. AP-74,836

WALTER ALEXANDER SORTO, Appellant

v.

THE STATE OF TEXAS

ON DIRECT APPEAL

FROM CAUSE NO. 921805 IN THE 184 TH DISTRICT COURT

HARRIS COUNTY

C OCHRAN , J., delivered the opinion of the Court in which Keller, P.J.,

Price, Womack, Johnson, Keasler, Hervey and Holcomb, JJ., joined. Meyers,

J ., not participating.

Appellant was convicted in November 2003 of capital murder. (1) Pursuant to the jury's

answers to the special issues during the punishment stage, (2) the trial court sentenced appellant

to death. (3) Direct appeal to this Court is automatic. (4) Appellant raises sixteen points of error.

We will affirm.

Sufficiency of the Evidence

In his second point of error, appellant argues that the evidence is legally insufficient

to prove that he intended to kill the victims. When evaluating the legal sufficiency of the

evidence, we view the evidence in the light most favorable to the verdict and determine

whether any rational trier of fact could have found the essential elements of the offense

beyond a reasonable doubt. (5)

Appellant was indicted for intentionally and knowingly causing the deaths of Maria

Rangel and Roxana Capulin by shooting them with a firearm during the same criminal

transaction. (6) The charge authorized the jury to convict appellant on any of three theories of

capital murder: (1) as a principal; (2) as a party under Section 7.02(a) of the Texas Penal

Code; (7) or (3) as a conspirator under the law of parties in Section 7.02(b) of the Texas Penal

Code. Because the trial court's charge authorized the jury to convict on alternative theories,

the verdict of guilt will be upheld if the evidence was sufficient on any one of the theories. (8)

A. The evidence.

The evidence at trial showed that Maria Rangel and Roxana Capulin were working

at El Mirador restaurant on Canal Street in Houston on the evening of May 31, 2002. Ms.

Capulin's husband testified that Roxana called him at about 10:00 p.m. to tell him that she

was closing the restaurant and would be coming home soon. The cook, Gabriel Mello,

testified that he left at about 10:15 p.m., and that Ms. Rangel and Ms. Capulin stayed behind

to close the restaurant.

Ruben Limon testified that he drove by the restaurant at around 11:15 p.m. and saw

two men and two women outside. One woman was putting a chain around the door, and the

other woman was standing nearby talking to one of the men. The second man, whom Limon

identified at trial as appellant, was talking on a pay phone. Limon further testified that he

observed a "red truck" parked outside the restaurant.

Roxana's husband became worried when she did not arrive home by 10:30 p.m., so

he called the restaurant. When no one answered the phone, he drove to the restaurant to look

for her. As soon as he arrived, he saw that Roxana's maroon Dodge Durango (9) was gone, the

restaurant lights were off, and the restaurant door was chained but unlocked. Maria Rangel's

husband later arrived, and they entered the restaurant and found no one inside.

Roxana's car was found on the morning of June 1, 2002. Emil Havelka testified that

he saw a Dodge Durango parked in the middle of Joyner Street, near his office, at 7:00 a.m.

When he saw two bodies inside the car and a large pool of blood on the ground by the back

passenger door, he called the police.

The police arrived and found the bodies of Roxana Capulin and Maria Rangel inside

the car. The car doors were unlocked and the keys were in the ignition. The Durango had

three rows of seats; Ms. Rangel's body was in the middle row, and Ms. Capulin's body was

in the back row. Ms. Rangel was wearing an El Mirador apron, and she had duct tape on her

hands and wrists and over her eyes and mouth. Ms. Capulin also had duct tape over her eyes

and mouth. The medical examiner testified that Ms. Rangel's death was caused by two

gunshot wounds to her head, and that Ms. Capulin died from a single gunshot wound to her

head.

Police recovered a bullet and three cartridge casings from inside the car. The medical

examiner also recovered bullet fragments from Ms. Capulin's head during her autopsy. The

firearms expert who examined the ballistics evidence testified that all three bullets could

have been fired from the same 9-millimeter firearm.

Harris County Sheriff's Deputy Miguel Gonzalez testified that, over two months later,

on August 20, 2002, he was contacted by a confidential informant with information about the

murders. Deputy Gonzalez and Detective Alejandro Ortiz met with the informant and

appellant at a Marriott hotel room at about 7:30 p.m. that evening. (10) Deputy Gonzalez

testified that appellant said he had information regarding the women who were abducted

from El Mirador restaurant, and that he needed the $5,000 Crimestoppers reward money

because his wife was pregnant. Appellant stated that Edgardo Cubas and Eduardo Navarro,

a juvenile, had abducted and murdered the victims. (11) He said that Cubas and Navarro had

invited him to go along with them that night, but he declined their invitation and followed

them instead. He parked his car in a parking lot across the street from the restaurant and saw

Cubas and Navarro abduct the women. He then followed them to a remote location and

parked nearby, but he left the scene after he heard gunshots.

At this point, Det. Ortiz thought appellant was a witness to the double murder, so he

asked appellant and the informant if they would continue the interview at the Harris County

Sheriff's homicide division office. They agreed to do so, and appellant drove himself and

the informant to the office. When they arrived at around 9:45 p.m., Det. Ortiz and a

Detective Brown conducted a videotaped interview with appellant. Appellant again stated

that he witnessed the abduction from across the street. He said that Navarro stayed in Cubas's

Honda Accord while Cubas talked to the women outside the restaurant; then Cubas got into

a Dodge Durango with the women, and Navarro followed them as they drove away.

Appellant followed both cars to a second location and parked about one hundred twenty feet

away. Cubas and the women remained parked in the Durango for about thirty minutes. One

of the women got out of the car and tried to run away, but Cubas caught her and put her back

inside the vehicle. Appellant saw that Cubas had a pistol and a large roll of tape in his hands,

and he watched as Cubas fired three shots into the Durango. Appellant then left, and Navarro

saw him as he was driving away. Appellant later saw Cubas and Navarro in a bar, and Cubas

threatened to kill him and his family if he told anyone what he had seen.

During the interview, Det. Ortiz asked appellant if he would agree to give a saliva

sample. After appellant consented to give a saliva sample, he added that he, Cubas, and

Navarro left the club and returned to the scene, where Cubas forced him to have sex with Ms.

Rangel's body.

Det. Ortiz testified that he took appellant into custody after he learned of an

outstanding warrant for appellant's arrest at approximately 1:10 a.m. Appellant then agreed

to show the detective where Cubas and Navarro lived. They left the homicide division office

at 2:05 a.m. and returned at 3:10 a.m. At 7:30 a.m., appellant was taken before a magistrate,

who gave him his statutory warnings.

Appellant was then taken to the Houston Police Department homicide division office,

where he was interviewed by Officers Jesus Sosa and Heraclio Chavez. In this videotaped

statement, appellant told a very different version of the events. He said that Cubas picked

him up in his Honda Accord at about 8:30 p.m, and they then picked up fourteen-year-old

Navarro. Appellant and Cubas went to a few bars while Navarro waited in the car; then they

went looking for a bar that would admit Navarro. Cubas, who was in possession of a 9-millimeter Beretta pistol, said that he wanted to commit a robbery because he needed money

to pay rent. They were driving on Canal Street when they saw two women coming out of a

restaurant. Cubas parked in a nearby parking lot, got out of the car, and approached the

women from behind as they were walking toward the Durango. Cubas motioned for

appellant to come over to them, and Cubas made Roxana Capulin give appellant the keys.

Ms. Capulin sat in the back seat with Cubas, Maria Rangel sat in the middle seat, and

appellant drove the vehicle. As appellant drove to an area near "Dixie and Wayside," Cubas

placed tape over the eyes and mouths of the women and bound Ms. Rangel's hands with tape.

Cubas wanted to sexually assault Roxana Capulin, so he told Ms. Rangel "to get down from

the truck" when they stopped. Ms. Rangel fell out of the car onto the ground. Appellant also

got out of the car, and Cubas stayed inside with Roxana Capulin. When Ms. Rangel later got

too close to the car, Cubas pointed the gun at her and told her to take her clothes off. He told

appellant "to fuck her by force," and appellant "gave her like 3 thrusts" and ejaculated.

Appellant then "fixed . . . her pants" and put her back inside the Durango, where Cubas was

forcing Ms. Capulin to perform oral sex on him. Appellant told Cubas to let the women go.

He drove the car a short distance, then turned it off, left the key in the ignition, got out, and

started walking away. As he was walking to the Accord where Navarro was waiting, he

heard three shots coming from the direction of the Durango. Cubas then came running

toward him, and they got into the Accord with Navarro and left. When appellant asked

Cubas what happened to the women, he said, "I killed them whores." Cubas said he had

taken money and jewelry from the women, and he showed appellant a chain that belonged

to one of them. Cubas dropped appellant and Navarro off at the apartment complex where

they both lived at about 12:05 a.m.

Appellant's videotaped statements were not the only evidence of his participation in

the double murder. DNA evidence also tied appellant to the offense. Appellant's DNA

profile was consistent with the DNA profile of sperm found on Rangel's clothing and in her

vagina. Cubas's DNA profile was consistent with the DNA profile of sperm found on

Capulin's panty hose and in her mouth.

The State also presented evidence of appellant's involvement in the extraneous murder

of fifteen-year-old Esmeralda Alvarado on January 18, 2002, four months before the charged

murders. Ms. Alvarado's boyfriend, Osiel Blanco, testified that she came over to his house

to watch television that evening, and that she went outside to use a nearby pay phone at about

9:30 p.m. When Blanco went outside to look for her about ten minutes later, she was gone.

Her body was found four days later. The medical examiner testified that she died from a

gunshot wound to the head. Appellant was included as a possible contributor of the DNA

obtained from sperm found in Ms. Alvarado's anus. Cubas's DNA was consistent with the

DNA profile of sperm found in Ms. Alvarado's vagina.

Appellant admitted his involvement in Esmeralda Alvarado's murder in a videotaped

interview with Detectives Chavez and Ortiz. Appellant stated that one night in January 2002,

he and Cubas were driving around in a truck belonging to Cubas's father. They passed by

a young girl talking on a pay phone, and Cubas said that he wanted to have sex with her, so

he turned the truck around and went back to where she was standing. Cubas forced her at

gunpoint to get into the back seat of the truck, and appellant got into the back seat with her.

Cubas tied a rag over the girl's eyes and drove them to a deserted area. Appellant stayed in

the truck while Cubas took the girl outside and raped her. When they returned to the truck,

appellant made her get into the back seat with him, and he raped her. They initially planned

to leave her at the scene, but as they were leaving she yelled, "Hey, don't leave me here."

They let her back into the truck, and she asked them to drop her off near her home. Cubas

started to drive away, but then decided to take her back to where they had raped her. They

got out of the truck and Cubas made her perform oral sex on him. Cubas then shot her in the

head, and he and appellant got into the truck and drove away.

B. Sufficiency of the evidence to establish Appellant's intent to commit capital murder.

Applicant claims that he "specifically denied" any intent to kill Roxana Capulin and

Maria Rangel when he said in his statements that he urged Cubas to let them go and that he

was leaving when Cubas shot them. However, the jury was free to take all of the evidence

into account and to believe or disbelieve any portion of appellant's statements. Appellant,

by his own admission, knew that Cubas had a gun and that he planned to commit a robbery.

At some point after they left the restaurant with the women, appellant knew that Cubas

planned to sexually assault Ms. Capulin. Appellant drove the vehicle from the restaurant and

sexually assaulted Ms. Rangel when they arrived at their destination. Four months prior to

the instant offense, appellant participated in the kidnapping and sexual assault of Esmeralda

Alvarado, who was ultimately shot and killed by Cubas in front of appellant. The jury could

have inferred from the evidence that appellant likewise intended to promote or assist in the

murders of Ms. Capulin and Ms. Rangel. After viewing the evidence in the light most

favorable to the prosecution, we conclude that a rational jury could have found that the

essential elements of the offense were proven beyond a reasonable doubt . (12) Point of error

two is overruled.

Jury Instructions

In his first point of error, appellant asserts that the trial court erroneously refused to

instruct the jury on the lesser-included offense of aggravated kidnapping. Appellant again

relies on his own statements to support his claim. He argues that a jury could rationally find

him guilty only of the lesser-included offense, because in his statements he admitted only

kidnapping and sexual assault.

We use a two-pronged test to determine whether a defendant is entitled to an

instruction on a lesser-included offense. (13) The first step in our analysis is to determine if the

lesser offense is included within the proof necessary to establish the offense charged. (14) The

second step requires an evaluation of the evidence to determine whether there is some

evidence that would permit a jury rationally to find that the defendant is guilty only of the

lesser offense. (15) In other words, there must be some evidence from which a jury could

rationally acquit the defendant of the greater offense while convicting him of the

lesser-included offense. (16) The evidence must establish the lesser-included offense as a valid,

rational alternative to the charged offense. (17)

Appellant was charged with murdering more than one person during the same criminal

transaction. (18) The offense of aggravated kidnapping is not included within the proof

necessary to establish the offense of capital murder as charged in this case. (19) Therefore,

point of error one is overruled.

In his third point of error, appellant argues that the trial court erred by instructing the

jury on the parties theory of liability because the law of parties was not pled in the

indictment. He alleges that the State's failure to indict him as a party to the offense violated

the Sixth Amendment and his constitutional right to due process under In re Winship, (20)

Apprendi v. New Jersey , (21) and their progeny.

At trial, appellant objected only to the "application of the 'attempts to aid' portion of

Section 7.02(a) of the Texas Penal Code," arguing that it was unconstitutional for a person

who "acted but failed to assist another" to be liable for the other person's completed offense.

Appellant's trial objection does not comport with the issue he raises on appeal; thus, he has

failed to preserve his complaint for our review. (22) In any event, "[i]t is well-settled that the

law of parties need not be pled in the indictment." (23) Point of error three is overruled.

Vienna Convention Issues

In points of error four, five, and six appellant argues that his consular notification

rights under the Vienna Convention were violated. In point of error four, he argues that his

videotaped statements to the police should have been suppressed because of a Vienna

Convention violation. In point of error five, he complains that the trial court erred in failing

to charge the jury under article 38.23 (24) concerning his rights under the Vienna Convention.

And, in point of error six, he requests a new punishment trial as a remedy for a Vienna

Convention violation.

Appellant's argument on all three points of error is that, because he is a Salvadoran

citizen, the police were required to notify him without delay that he had a right to seek

assistance from the Salvadoran consulate and that the police were required to inform the

Salvadoran consulate without delay of his detention so that it could provide consular

assistance. He complains that the police failed to provide such notice "without delay."

The State argues that: (1) appellant lacks standing to enforce the provisions of the

Vienna Convention in a state criminal proceeding; (2) the record does not affirmatively show

that he was not notified of his right to consult his consulate; (3) his consulate was, in fact,

timely notified of his detention; and (4) there was no causal connection between the

purported treaty violation and the acquisition of his custodial videotaped statements.

A. The Vienna Convention

The Vienna Convention on Consular Relations (25) is a treaty which protects the rights

of United States citizens abroad and foreign nationals in the United States. (26) The treaty

promotes the effective delivery of consular services in foreign countries, including access to

consular assistance when a citizen of one country is arrested, committed to prison or custody

pending trial, or detained in any other manner in another country. In its preamble, the treaty

states that "the purpose of such privileges and immunities is not to benefit individuals but to

ensure the efficient performance of functions by consular posts on behalf of their respective

States[.]" (27)

To ensure that no signatory nation denies consular access and assistance to another

country's citizens traveling or residing in a foreign country, Article 36 of the Vienna

Convention provides the following:

With a view to facilitating the exercise of consular functions relating to

nationals of the sending State:

(a) consular officials shall be free to communicate with nationals of the

sending State and to have access to them. Nationals of the sending State shall

have the same freedom with respect to communication with and access to

consular officials of the sending State;

(b) if he so requests, the competent authorities of the receiving State shall,

without delay, inform the consular post of the sending State if, within its

consular district, a national of the State is arrested or committed to prison or

to custody pending trial or is detained in any other manner. Any

communication addressed to the consular post by the person arrested, in

prison, custody or detention shall also be forwarded by the said authorities

without delay. The said authorities shall inform the person concerned without

delay of his rights under this sub-paragraph;

(c) consular officials shall have the right to visit a national of the sending State

who is in prison, custody or detention, to converse and correspond with him,

and to arrange for his legal representation. They shall also have the right to

visit any national of the sending State who is in prison, custody or detention

in their district in pursuance of a judgment. Nevertheless, consular officers

shall refrain from taking action on behalf of a national who is in prison,

custody or detention if he expressly opposes such action.

2. The rights referred to in paragraph 1 of this Article shall be exercised in

conformity with the laws and regulations of the receiving State, subject to the

proviso, however, that the said laws and regulations must enable full effect to

be given to the purposes for which the rights accorded under this Article are

intended. (28)

The provisions of Article 36 have also been implemented in various federal regulations

which apply to federal authorities in federal proceedings. (29) However, neither treaties nor

federal regulations necessarily confer judicially enforceable rights on private persons in a

state criminal or civil proceeding.

Under normal circumstances, "[i]nternational agreements, even those directly

benefitting private persons, generally do not create private rights or provide for a private

cause of action in domestic courts[.]" (30) Because treaty violations have traditionally been

resolved by "international negotiations and reclamations," the Supreme Court has stated that

"[i]t is obvious that with all this the judicial courts have nothing to do and can give no

redress." (31) Sometimes, however, a treaty may explicitly confer judicially enforceable rights

to persons of one nation residing in another, such as treaties dealing with property rights

asserted by a citizen in one nation claiming property by descent or inheritance in another

country. (32) These latter, "privately enforceable," treaty provisions are in the same category

as congressional statutes under the Supremacy Clause. (33)

During the past decade innumerable state and federal courts have been asked to decide

whether Article 36 of the Vienna Convention confers individual rights which may be

judicially enforced in criminal or civil proceedings. (34) There is no general consensus on this

question. This Court has previously held that the Vienna Convention does not create the type

of personal rights the violation of which can be remedied in Texas criminal courts by the

suppression of evidence under article 38.23. (35) The United States Court of Appeals for the

Fifth Circuit has recently reiterated the position of many American jurisdictions in

concluding that "the Vienna Convention does not confer individually enforceable rights." (36)

Appellant argues that our prior holding should be reconsidered in light of the more recent

International Court of Justice (ICJ) decisions in Federal Republic of Germany v. United

States (LaGrand) , (37) and Mexico v. United States (Avena) . (38) In these two cases, the ICJ

interpreted Article 36 of the Vienna Convention as giving detained foreign nationals

individual rights that the foreign national's home country could invoke in a proceeding

before the ICJ. (39)

The issues of whether American state and federal courts are bound by the ICJ

decisions in LaGrand and Avena or whether Article 36 confers personal rights under the

federal constitution may be definitively resolved only by the United States Supreme Court. (40)

In Breard v. Greene, (41) the Supreme Court noted in dicta that Article 36 "arguably confers on

an individual the right to consular assistance following arrest[,]" (42) but that Court has not

spoken on these issues since the ICJ decisions were issued. In any event, we need not resolve

those issues in this case because, even assuming that American state and federal courts are

bound by LaGrand and Avena or that Article 36 does confer personal rights, appellant has

not shown: (1) that any of the rights he claims under the Vienna Convention were violated;

or (2) that any purported treaty violation either caused him to do anything he would not

otherwise have done or affected the fairness of his trial in any way.

B. Pertinent facts

As noted above, appellant and a confidential informant voluntarily contacted the

police on August 20 th , stating that they wished to offer information about the murders of

Roxana Capulin and Maria Rangel. According to Detective Ortiz, they did so because they

were interested in the reward money. Det. Ortiz and Deputy Gonzalez met with the two men

in a Marriott Hotel room that evening thinking that appellant simply had information about

the double murder. When Det. Ortiz asked him to come to the homicide division office to

continue the interview, now as a witness, appellant freely and voluntarily did so. He drove

his own car and was accompanied only by the confidential informant. He freely and

voluntarily continued to speak to the officers, all of whom spoke fluent Spanish with him,

throughout the evening hours of August 20 th .

Appellant, who eventually told the officers that he was born in El Salvador, (43) testified

that he came to America when he was eighteen, had lived in the United States for seven

years, and had worked in a chemical plant. He said that he did not read or write much

English or Spanish and that he had been convicted of carrying a weapon in 1999. He told

the officers when they first got to the police station that he was on probation for aggravated

robbery. The present record contains the statutory warnings appellant received when

charged with that aggravated robbery. They show that he had been informed of his right, in

both English and Spanish, to notify the Salvadoran consulate and seek its assistance but that

he explicitly waived his right to do so.

After Det. Ortiz asked appellant for an oral swab at 10:48 p.m. on August 20 th ,

appellant began to speak of himself as being less a mere witness to a double murder and more

a reluctant party to that crime. Only then did Det. Ortiz begin to be suspicious, and he gave

appellant Miranda warnings in Spanish. At about 1:00 a.m. on August 21 st , Det. Ortiz

discovered that appellant had an outstanding arrest warrant on a motion to adjudicate

stemming from his aggravated robbery probation. It was then that Det. Ortiz considered

appellant in custody on that open arrest warrant.

At 7:30 a.m. on August 21 st , appellant was taken to a magistrate and given his

statutory warnings in Spanish through an interpreter. He told the magistrate that he

understood those warnings. Later that morning he was again given Miranda warnings and

was told that he was under suspicion concerning three murders-the murders of Roxana

Capulin and Maria Rangel, and the earlier murder of Esmeralda Alvarado.

According to every officer who testified, appellant was repeatedly given Miranda

warnings in Spanish, and he repeatedly stated that he understood all of his legal rights and

voluntarily agreed to waive them. At no point did he request to end the interviews, invoke

his right to silence, request the assistance of an attorney, or request to speak to anyone else. (44)

At no point did he request that he be allowed to contact the Salvadoran consulate or request

that the officers contact the consulate. Appellant finished his fifth videotaped statement late

on the evening of August 21 st .

The next day, August 22 nd , he was charged with the capital murders of Ms. Capulin

and Ms. Rangel, and, at 5:59 p.m. that afternoon, Officer Rodriguez notified the Salvadoran

consulate by fax that appellant had been detained on capital murder charges. This

notification, as well as a news release on the double murder, was sent approximately forty

hours after Det. Ortiz considered appellant detained in custody on the unrelated probation

revocation arrest warrant.

There is nothing in the trial record indicating that the Salvadoran consulate took any

action as a result of this notification. Midtrial, the defense sought a continuance to obtain

testimony from a Salvadoran consular official concerning consular affairs, but, according to

defense counsel, this attempt was unsuccessful:

We had gone through the El Salvadorian consulate and embassy both by letter,

fax, and phone call, by myself, my co-counsel, and our investigator to attempt

to enlist one of their consular officers to come down and testify.

Unfortunately, diplomatic personnel are immune from process in Texas; and,

of course, there is no U.S. [sic?] consulate officer here in Houston.

Thus, the record indicates that when appellant's attorneys and investigator sought

assistance from the Salvadoran consulate, they were rebuffed. There is no evidence in the

record as to what assistance the Salvadoran consulate might have provided had the police

notified the consulate sooner than they did.

C. The consulate was notified of appellant's detention "without delay."

Article 36 of the Vienna Convention requires that "the competent authorities of the

receiving State shall, without delay, inform the consular post of the sending State" when a

citizen of that sending State is arrested or otherwise detained if the citizen so requests. The

authorities "shall inform the person concerned without delay of his rights" under Article 36.

In the present case, there is no evidence that the police informed appellant of this right to

request consular notification, but there is undisputed evidence that the police notified the

Salvadoran consulate of appellant's arrest and detention nevertheless. Appellant cannot

complain that the police erred by failing to tell him that he could request them to notify the

consulate of his detention if they notified the consulate even without his request. Appellant

claims that he wanted the consulate notified. The consulate was notified. There is no basis

for complaint here.

The only issue, then, is whether the police notified the Salvadoran consulate "without

delay." Article 36 does not define the phrase "without delay," (45) nor does appellant refer us

to any specific treaty document, historical analysis, or legal precedent which defines that

term's meaning. So what does "without delay" mean in the context of Article 36?

Although arguably we are not bound by the decisions of the ICJ unless and until the

United States Supreme Court decrees that Texas courts must follow ICJ decisions as the

supreme law of this land, (46) we are not forbidden from consulting those decisions. (47) In

Avena , the Mexican Government argued that the term "without delay" should be interpreted

to mean "unqualified immediacy" and "prior to any interrogation of the foreign detainee."

The ICJ rejected Mexico's position, noting that, under this view,

it would follow that in any case in which a foreign national was interrogated

before being informed of his rights under Article 36, there would ipso facto be

a breach of that Article, however rapidly after the interrogation the information

was given to the foreign national. (48)

Indeed, we are unable to find any language within the Vienna Convention that demonstrates

that the signatories agreed that each nation's authorities were required to advise a foreign

national of his right to contact his consulate before any police questioning could begin or

proceed. In fact, we are not aware of any laws or judicial precedents in any of the signatory

nations that include such a requirement. Nor is there a treaty or other legal requirement that

the police must stop their interrogation even if a foreign national requests consular

assistance. (49)

The Avena Court, in addressing the meaning of the term "without delay," noted that

the purpose of the Convention was "for consular officials to be free to communicate with

nationals of the sending State, to have access to them, to visit and speak with them and to

arrange for their legal representation." (50) According to the ICJ,

It is not envisaged, either in Article 36, paragraph 1, or elsewhere in the

Convention, that consular functions entail a consular officer himself or herself

acting as the legal representative or more directly engaging in the criminal

justice process . . . . Thus, neither the terms of the Convention as normally

understood, nor its object and purpose, suggest that "without delay" is to be

understood as "immediately upon arrest and before interrogation." (51)

The Avena Court noted that, during the diplomatic conference discussions leading up to the

final treaty draft, the Commission had used the phrase "without undue delay." (52) No delegate

proposed using the word "immediately." (53) Germany proposed adding the phrase "but at

latest within one month." (54) The United Kingdom proposed substituting the term "promptly"

or "no later than 48 hours" after detention. (55) According to the ICJ, the delegates could not

agree on any specific time period, but they did agree on dropping the word "undue." (56) Thus,

the final treaty draft intentionally contains the phrase "without delay," presumably to permit

flexibility. The ICJ also stated that, during these Conference debates, no delegate "made any

connection [of the phrase "without delay"] with the issue of interrogation." (57) Therefore, the

Avena court concluded that the Article 36 notification rights "cannot be interpreted to signify

that the provision of such information must necessarily precede any interrogation, so that the

commencement of interrogation before the information is given would be a breach of Article

36." (58)

We turn to sources closer to home: How does the United States Department of State

interpret the phrase "without delay" in Article 36, both as that article applies to Americans

detained in a foreign country and foreigners detained in the United States? The Consular

Notification and Access booklet states that a foreign national should be notified "without

delay" of his right to consular assistance. (59)

There should be no deliberate delay, and notification should occur as soon as

reasonably possible under the circumstances. Once foreign nationality is

known, advising the national of the right to consular notification should follow

promptly. (60)

Notification to the consulate should also occur "without delay" once the foreign national has

requested that it be made.

The Department of State would normally expect notification to consular

officials to have been made within 24 hours, and certainly within 72 hours. On

the other hand, the Department does not normally consider notification of

arrests and detentions to be required outside of a consulate's regular working

hours. In some cases, however, it will be possible and convenient to leave a

message on an answering machine at the consulate or to send a fax even

though the consulate is closed. (61)

The booklet goes on to state its guiding principle that American authorities "should permit

a consular officer the same access to a foreign national that you would want an American

consular officer to have to an American citizen in a similar situation in a foreign country." (62)

The State Department tells its overseas consular officials to lodge a diplomatic protest if

detaining authorities in a foreign country do not notify the consulate within 72 hours of an

American citizen's arrest. (63) At least two other American courts have stated that consular

notification made within one to three days of arrest or detention is made "without delay." (64) Turning to Texas, our state criminal procedure laws have used the phrase "without

delay" or "without unnecessary delay" in many instances, (65) including when an arrestee is

entitled to be taken before a magistrate. Article 15.17 of the Code of Criminal Procedure

states that "the person making the arrest or the person having custody of the person arrested

shall without unnecessary delay, but not later than 48 hours after the person is arrested, take

the person arrested or have him taken before some magistrate of the county where the

accused was arrested. . . ." (66) The purpose of this provision is to comply with constitutional

and statutory requirements that an accused person be promptly and fully informed of the

accusation against him, as well as his legal rights, including his Miranda rights and his right

to reasonable bail. (67) This requirement is similar to the Fourth Amendment requirement that

a person arrested without warrant be given a "prompt" judicial determination of probable

cause to permit further detention. In County of Riverside v . McLaughlin , (68) the Supreme

Court held that a jurisdiction that provides for such probable cause hearings within 48 hours

is sufficient to survive "systemic challenges" to its system. (69)

After canvassing (1) the words of the Vienna Convention itself; (2) the interpretation

of the phrase "without delay" by the ICJ in the Avena case; (3) the meaning that the State

Department has ascribed to that term both in application to Americans who are detained

abroad and foreigners detained in the United States; (4) other American courts that have

considered this wording; and (5) use of the phrase "without delay" in Texas law, we conclude

that Officer Rodriguez, in faxing the required notification within 48 hours of appellant's

arrest on the probation revocation warrant, notified the Salvadoran consulate "without delay."

We hold that Texas authorities complied with their obligations under Article 36 of the

Vienna Convention.

Therefore, the trial court did not err in refusing to suppress appellant's videotaped

statements, in declining to give any article 38.23 jury instruction concerning the Vienna

Convention, or in refusing to reform appellant's death sentence to a sentence of life

imprisonment.

D. No causal connection or prejudice shown.

Finally, even assuming that the Vienna Convention was violated, and even assuming

that such violations may be remedied in an American criminal proceeding, (71) appellant has

not shown any causal connection between the purported failure to inform him of his right to

consult his consul or with any purported "tardy" notification of the El Salvadoran consulate

and either the acquisition of his statements or the fairness of his trial. (72)

The only testimony that could arguably support appellant's position that if he had a

chance to speak with someone who would have explained his rights, he would not have

continued speaking with the police , is his testimony during the hearing on the motion to

suppress. There, he stated that he did not really understand the American legal system or the

consequences of waiving his legal rights because he did not have these same rights in El

Salvador. However, the evidence also shows that it was appellant who approached the police

with his story about being the eyewitness to a double murder; he initiated the contact with

the legal system. Further, appellant was not a novice in the American legal system. He had

two prior criminal cases; during one of those prior proceedings, he explicitly acknowledged

that he knew he had a right to consular assistance, and he explicitly waived that right in

writing. Throughout August 20 th and 21 st he was repeatedly given his Miranda warnings by

both Spanish-speaking police officers and by a neutral magistrate through a Spanish-speaking

interpreter. On each and every occasion he explicitly said that he understood his legal rights

and wished to waive them.

Showing a causal connection or prejudice under these circumstances is nigh

impossible. As one federal court stated,

Prejudice has never been-nor could reasonably be-found in a case where a

foreign national was given, understood, and waived his or her Miranda rights.

Courts have uniformly found that no prejudice can exist in that situation,

because the advice a consular official would give would simply augment the

content of Miranda , which the foreign national has already waived. (73)

Finally, there is no evidence in the record that the Salvadoran consulate regularly

provides any assistance at all to its foreign nationals detained in Houston. (74) Indeed, the

evidence indicates the opposite. The defense team was unable to either persuade or subpoena

a Salvadoran consular official to appear at trial, and it indicated that there is no consular

official based in Houston. In the present case, no showing of prejudice whatsoever has been

made. Appellant's assertions of prejudice are entirely speculative and belied by the record

evidence and applicable precedent. (75) Therefore, because appellant has failed to show that

he was in any way prejudiced by the alleged Vienna Convention violation, we reject his

claims. Appellant's fourth, fifth, and sixth points of error are overruled.

Article 38.23 Instruction on Voluntariness of Statements

In point of error seven, appellant claims that the trial court erroneously refused his

request for an Article 38.23 jury instruction on the voluntariness of his statements. When the

evidence presented at trial raises a factual issue as to whether a defendant had been warned

of his rights and voluntarily waived them prior to making a statement, he is entitled to an

instruction on the voluntariness of the confession. (76) Appellant argues that he raised a fact

issue as to whether his statements were legally obtained by presenting evidence that he

lacked education, he had "trouble with the language," and "[h]e was not a native of this

country and had no reason to understand the many rights he was spoken to about." (77)

As noted above, the evidence at trial showed that appellant approached police with

information about the case and that he agreed to go from the hotel to the Harris County

Sheriff's homicide division office to provide more details about what he had allegedly

witnessed. He was taken before a magistrate for his warnings shortly after he was arrested

by Det. Ortiz. (78) The magistrate read the warnings to appellant in English, an interpreter

translated the warnings into Spanish, and appellant indicated that he understood the

warnings. Appellant was then transported to the Houston Police Department homicide

division office, where he gave a statement to Officers Sosa and Chavez regarding his

participation in the murders of Maria Rangel and Roxana Capulin. Prior to taking his

statement, these officers again read appellant his rights in compliance with Miranda and

Article 38.22. They read his rights in Spanish and appellant indicated that he understood his

rights. (79) Appellant later gave a statement to Officer Chavez and Det. Ortiz admitting his

involvement in Ms. Alvarado's murder. Before asking appellant to make his statement,

Officer Chavez again read appellant his rights in Spanish, and appellant again indicated that

he understood his rights. Officer Chavez testified that appellant did not seem to have any

difficulty understanding him. The officers further testified that they conducted the interviews

in Spanish, they neither threatened appellant nor promised him anything, and they never

denied him food, drink, or the opportunity to use the bathroom.

Appellant failed to establish at trial that his education, language, or nationality

affected the voluntariness of his statements. Thus, the trial court did not err in refusing his

request for an Article 38.23 instruction. Point of error seven is overruled.

The Punishment Charge

In points of error eight, nine, and ten, appellant challenges the trial court's charge to

the jury on punishment, citing Apprendi v. New Jersey, (80) and Ring v. Arizona, (81) in support

of his argument. In point of error eight, he complains that the punishment charge on future

dangerousness failed to define the term "probability." In point of error nine, appellant claims

that the trial court should have instructed the jury that the State bore the burden of proof

beyond a reasonable doubt on the mitigation issue. We have previously addressed and

rejected these issues. (82) In point of error ten, appellant asserts that the anti-parties special

issue violated the requirements of Ring because it permitted him to receive the death penalty

if the jury found that he merely "anticipated that a human life would be taken." This claim

is also without merit, given our previous holding that Apprendi and Ring have no

applicability to Article 37.071 in its current form. (83) Points of error eight, nine, and ten are

overruled.

Evidentiary Hearing on Motion For New Trial

In point of error eleven, appellant argues that the trial court erroneously denied him

an evidentiary hearing on his motion for new trial, in which he argued that the method and

chemicals used to administer the death penalty in Texas amounted to cruel and unusual

punishment in violation of the Eighth and Fourteenth Amendments of the United States

Constitution. (84) "When an accused presents a motion for new trial raising matters not

determinable from the record, which could entitle him to relief, the trial judge abuses his

discretion in failing to hold a hearing." (85)

The effect of granting a motion for new trial is to restore the case to its position before

the former trial. (86) A trial court cannot grant a new trial as to punishment only. (87) Even if

appellant's underlying claim of cruel and unusual punishment had been meritorious, that

claim deals only with the punishment stage. Therefore, a new trial on guilt or innocence

would not have been the appropriate vehicle by which to provide him relief. Thus, the trial

court did not abuse its discretion in failing to hold a hearing on the motion for new trial in

the instant case. Point of error eleven is overruled.

United Nations Convention Against Torture

In points of error twelve, thirteen, and fourteen, appellant argues that his death

sentence violates the United Nations Convention Against Torture, Articles 6 and 14 of the

International Covenant on Civil and Political Rights, and the Supremacy Clause of the United

States Constitution. Although these treaties prohibit "torture or cruel, inhuman, or degrading

punishment," the Senate filed reservations to both treaties stating that this language did not

prohibit the United States from imposing capital punishment consistent with the

Constitution. (88) Points of error twelve, thirteen, and fourteen are overruled.

Admission of Extraneous Offense Evidence

In point of error fifteen, appellant challenges the trial court's admission of the

extraneous murder of Esmeralda Alvarado at the guilt phase of the trial. Appellant argues

that this evidence was an inadmissible extraneous offense under Rule 404(b), and that it was

substantially more prejudicial than probative under Rule 403.

Evidence of other crimes, wrongs or acts is not admissible "to prove the character of

a person in order to show action in conformity therewith," but it may be admissible for other

purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity,

or absence of mistake or accident. (89) The admissibility of evidence is within the discretion

of the trial court and will not be overturned absent an abuse of discretion. (90) Appellant's

intent was a hotly contested issue at trial. Although he admitted his participation in the

kidnapping of Roxana Capulin and Maria Rangel and the sexual assault of Maria, he denied

any intent to kill them. In his statement to police, he said that he attempted to persuade

Cubas not to kill them and that he walked away from the Durango thinking that Cubas would

leave them there alive. Evidence of appellant's participation in Esmeralda Alvarado's

murder just four months earlier, however, served to rebut his argument that he lacked the

requisite intent to promote or assist Cubas in the capital murder in the instant case. Appellant

saw Cubas shoot Ms. Alvarado after they had kidnapped and sexually assaulted her. This

evidence demonstrated that appellant knew Cubas would also be likely to kill Ms. Capulin

and Ms. Rangel, and that he intended to promote or assist Cubas in their murders. The trial

court did not abuse its discretion in admitting this evidence for the purpose of proving

appellant's intent or knowledge.

Although the evidence is admissible under Rule 404(b), it may still be excluded under

Rule 403 if the trial court determines that its probative value is substantially outweighed by

the danger of unfair prejudice. (91) Appellant's intent was an essential disputed issue in the

case. Evidence of appellant's involvement in Ms. Alvarado's murder was relevant to the

jury's determination of whether appellant anticipated or intended the murders of Ms. Capulin

and Ms. Rangel.

Further, evidence of the Alvarado murder was not so prejudicial that the jury would

have been unable to limit its consideration of the evidence to its proper purpose. (92) In both

instances, it was, according to appellant, Cubas who did the actual killing in exactly the same

manner. There is nothing about Ms. Alvarado's murder that is more grisly or gruesome than

the double murders at issue here. And certainly the testimony concerning Ms. Alvarado's

rape and shooting was much shorter and less detailed than the testimony concerning the

charged offense. The extraneous evidence focused upon the single evidentiary fact that the

charged murders were an almost perfect "copycat" of the earlier one. The jury was entitled

to use this "copycat" evidence in deciding whether appellant knew that Cubas intended to kill

the two women, that appellant intended that Cubas kill the two women or anticipated that he

would do so, and that appellant assisted him in that endeavor. The probative value of the

evidence was not substantially outweighed by the danger of unfair prejudice, and the trial

court did not abuse its discretion in admitting it over appellant's Rule 403 objection. Point

of error fifteen is overruled.

Punishment Charge

Finally, in point of error sixteen, appellant argues that "[i]t was error for the trial court

to refuse to grant a charge at sentencing on the effect of a single juror's 'No' vote to the

future dangerousness question." He contends that, as a result, he was denied due process and

deprived of his right to have "a fully informed jury and individualized sentencing."

We have repeatedly upheld the constitutionality of Article 37.071, Section 2(a)(1),

which prohibits informing jurors of the effects of their failure to agree on the special issues. (93)

Appellant attempts to distinguish our precedent by arguing that there is no "statutory

prohibition" against informing the jury of the effect of a "no" vote on the future

dangerousness question, because the prohibition in Article 37.071, Section 2(a)(1) is limited

to "issues submitted under Subsection (c) or (e)." However, Subsections (c) and (e) both

expressly refer to Subsection (b), which includes the future dangerousness special issue.

Appellant was not entitled to have the jurors informed of the effect of their failure to

agree on the future dangerousness special issue. The trial court did not abuse its discretion

in refusing appellant's requested instruction. Point of error sixteen is overruled.

We affirm the judgment of the trial court.

Cochran, J.

Delivered:

Publish

1. Tex. Penal Code § 19.03(a).

2. Tex. Code Crim. Proc. art. 37.071, §§ 2(b) & (e). Unless otherwise indicated, all

references to Articles refer to the Texas Code of Criminal Procedure.

3.

Id. § 2(g).

4.

Id. § 2(h).

5.

See Jackson v. Virginia, 443 U.S. 307, 319 (1979).

6. Tex. Penal Code § 19.03(a)(7)(A).

7. The charge authorized the jury to convict appellant as a party if it found beyond a

reasonable doubt that "with the intent to promote or assist the commission of the [capital murder]

offense, if any, [he] solicited, encouraged, directed, aided or attempted to aid Edgardo Cubas to

commit the [capital murder] offense . . . ."

8.

Rabbani v. State, 847 S.W.2d 555, 558-59 (Tex. Crim. App. 1992).

9. The Durango was a large SUV, but the witnesses called it either a "car" or a "truck."

10. Deputy Gonzalez was working a second job as a security officer for the Marriott Hotel.

11. Appellant referred to Navarro by his nickname, "Lalo."

12.

Jackson, 443 U.S. at 319 .

13.

Rousseau v. State, 855 S.W.2d 666, 673 (Tex. Crim. App. 1993).

14.

Id.

15.

Id. at 672; Moore v. State, 969 S.W.2d 4, 8 (Tex. Crim. App. 1998).

16.

Moore, 969 S.W.2d at 8 .

17.

Wesbrook v. State, 29 S.W.3d 103, 113-14 (Tex. Crim. App. 2000).

18.

Tex. Penal Code § 19.03(a)(7)(A).

19.

See Jacob v. State, 892 S.W.2d 905, 907 (Tex. Crim. App. 1995) (stating that the

determination of whether an offense is a lesser included offense must be done on a case-by-case

basis).

20. 397 U.S. 358 (1970).

21. 530 U.S. 466 (2000).

22. Tex. R. App. P. 33.1.

23.

Marable v. State , 85 S.W.3d 287, 287 (Tex. Crim. App. 2002) (post- Apprendi

decision); Malik v. State , 953 S.W.2d 234, 239 (Tex. Crim. App. 1997) (pre- Apprendi decision);

see also United States v. Osborne , 286 F. Supp. 2d 891, 902-03 (E.D. Tenn. 2003) (rejecting

defendant's claim that Apprendi requires prosecution to allege law of parties in indictment; "The

Court is unaware of any authority supporting the argument that Apprendi required the

government to allege aiding and abetting" in indictment).

24.

Tex. Code Crim. Proc. art. 38.23. Appellant does not point to any evidence in the

trial record that raises a factual dispute concerning consular notification. His complaint appears

to be one of law: "Was the Vienna Convention violated, and, if so, what is the appropriate

remedy?"

25.

Vienna Convention on Consular Relations, April 24, 1963, 21 U.S.T. 77, 595

U.N.T.S. 261 (ratified by the United States on Nov. 24, 1969).

26.

See Vienna Convention, Preamble (noting that the signatories recognize that

"consular relations have been established between peoples since ancient times" and serve "the

maintenance of international peace and security, and the promotion of friendly relations among

nations").

27.

Id.

28.

Id ., Article 36.

29.

See, e.g., 28 C.F.R. § 50.5(a)(1) ("In every case in which a foreign national is arrested

the arresting officer shall inform the foreign national that his consul will be advised of his arrest

unless he does not wish such notification to be given"); 28 C.F.R. § 50.5(a)(2) (requiring the

arresting agent to inform the U.S. Attorney of the arrest and of the arrestee's wishes regarding

consular notification); 28 C.F.R. § 50.5(a)(3) (directing the U.S. Attorney to notify the

appropriate consul in accordance with the arrestee's wishes); 8 C.F.R. § 236.1(e) (requiring the

INS to notify detained aliens of the right to communicate with consul).

30. Restatement (Third) of the Foreign Relations Law of the United States §

907 cmt. a, at 395 (1987);

see Hamden v. Rumsfeld , ___ F.3d __, ___, 2005 U.S. App. LEXIS

14315, *13-20 (D.C. Cir., July 15, 2005) (quoting Restatement comment and holding that federal

courts cannot enforce the provisions of the Geneva Convention Relative to the Treatment of

Prisoners of War in an individual habeas corpus proceeding).

31.

The Head Money Cases , 112 U.S. 580, 598 (1884) (" A treaty is primarily a compact

between independent nations. It depends for the enforcement of its provisions on the interest and

the honor of the governments which are parties to it. If these fail, its infraction becomes the

subject of international negotiations and reclamations, so far as the injured party chooses to seek

redress, which may in the end be enforced by actual war"); see also Argentine Republic v.

Amerada Hess Shipping Corp. , 488 U.S. 428, 442 (1989) (holding that the Geneva Convention

on the High Seas and the Pan American Maritime Neutrality Convention "only set forth

substantive rules of conduct and state that compensation shall be paid for certain wrongs. They

do not create private rights of action") (footnote omitted); United States v. Jimenez-Nava , 243

F.3d 192, 195 (5 th Cir. 2001) (noting that treaties "do not generally create rights that are

enforceable in the courts"); United States v. Li , 206 F.3d 56 , 67 (1 st Cir. 2000) (Selya & Boudin,

JJ., concurring) ("The background presumption that treaties do not create privately enforceable

rights . . . [is an] extremely important principle. . . . It is surpassingly difficult to accept the idea

that, in most instances, either the Executive Branch or the ratifying Senate imagined that it was

empowering federal courts to involve themselves in enforcement on behalf of private parties who

might be advantaged or disadvantaged by particular readings of particular treaty provisions");

United States v. Gengler , 510 F.2d 62 , 67 (2d Cir. 1975) (stating that "even where a treaty

provides certain benefits for nationals of a particular state-such as fishing rights-it is

traditionally held that any rights arising out of such provisions are, under international law, those

of the states and . . . individual rights are only derivative through states") (internal quotations

omitted); United States v. Rosenthal , 793 F.2d 1214, 1232 (11 th Cir. 1986) (even if United States

violated its extradition treaty with Colombia, defendant could not seek relief from that act

because "[u]nder international law it is the contracting foreign government that has the right to

complain about a violation").

32.

See The Head Money Cases, 112 U.S. at 598 .

33.

Id.

34. Refer to the cases and articles cited in note 36

infra.

35.

Rocha v. State , 16 S.W.3d 1, 13-19 (Tex. Crim. App. 2000); Hinojosa v. State , 4

S.W.3d 240, 252 (Tex. Crim. App. 1999) (rejecting defendant's claim that his death sentence

violated the United Nations Charter and stating, "Generally, individuals do not have standing to

bring suit on an international treaty when sovereign nations are not involved in the dispute").

36.

Cardenas v. Dretke , 405 F.3d 244, 253 (5 th Cir. 2005); see also Medellin v. Dretke , 371

F.3d 270, 279 (5 th Cir. 2004), cert. dism'd , 545 U.S. ___ , 125 S.Ct. 2088 (2005) ("the Vienna

Convention, as interpreted by this Court in the past, does not confer an individually enforceable

right") ; United States v. Jimenez-Nava , 243 F.3d at 198 (defendant's argument "fails to lead to an

ineluctable conclusion that Article 36 creates judicially enforceable rights of consultation

between a detained foreign national and his consular office. Thus, the presumption against such

rights ought to be conclusive").

Some American courts have found that the Vienna Convention's preamble indicates the

drafters' intent not to provide an individual right. As the preamble explicitly states, the Vienna

Convention does not intend to benefit individuals. See United States v. Lombera-Camorlinga ,

206 F.3d 882, 885 (9th Cir. 2000); United States v. Li , 206 F.3d at 62 ; United States v. Carrillo,

70 F. Supp. 2d 854, 859 (N.D. Ill. 1999); United States v. Hongla-Yamche , 55 F. Supp. 2d 74, 77

(D. Mass 1999).

American courts that have addressed the issue of consular notification are split on

whether Article 36 creates an individual right. Compare Breard v. Greene , 523 U.S. 371, 376

(1998) (Vienna Convention "arguably confers" an individual right); United States v. Briscoe , 41

V.I. 446 , 69 F. Supp. 2d 738, 746-47 (D. V.I. 1999) (Article 36 confers an individual right upon

foreign nationals); United States v. Hongla-Yamche , 55 F. Supp. 2d at 78 (same); United States

v. Alvarado-Torres , 45 F. Supp. 2d 986, 989 (S.D. Cal. 1999) (same), with United States v.

Emuegbunam , 268 F.3d 377, 394 (6th Cir. 2001) (concluding that "the Vienna Convention does

not create a right for a detained foreign national to consult with the diplomatic representatives of

his nation that the federal courts can enforce"); United States v. Bustos de la Pava, 268 F.3d 157,

165 (2d Cir. 2001) (" Even if we assume arguendo that De La Pava had judicially enforceable

rights under the Vienna Convention-a position we do not adopt-the Government's failure to

comply with the consular-notification provision is not grounds for dismissal of the indictment");

United States v. Tapia-Mendoza , 41 F. Supp. 2d 1250, 1253 (D. Utah 1999) (expressing doubt

that Article 36 confers individual rights, but declining to reach issue because defendant's claim

failed for other reasons); United States v. Singh , 59 M.J. 724, 725-26 (N-M. Ct. Crim. App.

2004) (holding that the Vienna Convention does not confer individual rights enforceable by

military courts-martial); State v. Navarro , 659 N.W.2d 487, 491 (Wis. App. 2003) ("we are

convinced that the Vienna Convention does not confer standing on an individual foreign national

to assert a violation of the treaty in a domestic criminal case"); Cauthern v. State , 145 S.W.3d

571, 626 (Tenn. Crim. App. 2004) (concluding that, "for purposes of this post-conviction

proceeding, Article 36 of the Vienna Convention on Consular Relations creates no individual

rights that are privately enforceable"); Kasi v. Virginia , 508 S.E.2d 57, 64 (Va. 1998) (stating

that the provisions of the Vienna Convention do not create an individual right). See generally

Roberto Iraola, Federal Criminal Prosecutions and the Right to Consular Notification Under

Article 36 of the Vienna Convention , 105 W. Va. L. Rev. 179 , 211 (Fall 2002) ( concluding that

"the evolving federal criminal law makes clear, the remedy for an Article 36 violation does not

appear to include any action that would affect the validity of the prosecution and conviction of a

defendant. Instead, the remedy is confined to diplomatic and political interaction, or other action

under international law, between the United States and the country of the foreign national")

(footnote omitted); Mark J. Kadish, Article 36 of the Vienna Convention on Consular Relations:

A Search for the Right to Consul , 18 Mich. J. Int'l L. 565 (Summer 1997) (arguing that the

treaty drafters intended to create an individual right of notification); Ann K. Wooster,

Annotation, Construction and Application of Vienna Convention on Consular Relations (VCCR),

Requiring That Foreign Consulate Be Notified When One of its Nationals Is Arrested , 175

A.L.R. Fed. 243 (2002) (collecting cases).

Other courts have sidestepped the issue and concluded that remedies such as the

suppression of evidence or dismissal of an indictment are not available even if the treaty does

create individual rights. See Commonwealth v. Diemer , 785 N.E.2d 1237, 1243-45 (Mass. App.

2003), cert. denied , 540 U.S. 1150 (2004) (collecting cases and joining those courts which have

held that suppression of evidence for a Vienna Convention violation is not an available remedy).

37. 2001 I.C.J. 104 (June 27, 2001).

38. 2004 I.C.J. 128 (March 31, 2004).

39.

LaGrand, 2001 I.C.J. 104, ¶ 77; Avena , 2004 I.C.J. 128, ¶ 40.

40. We note that Article 94(2) of the United Nations Charter suggests that ICJ decisions

are not privately enforceable in the courts of the member nations. That article reads as follows:

"If any party to a case fails to perform the obligations incumbent upon it under a judgment

rendered by the Court, the other party may have recourse to the Security Council, which may, if it

deems necessary, make recommendations or decide upon measures to be taken to give effect to

the judgment." 59 Stat. 1051 . Further, Article 59 of the ICJ statute, 59 Stat. 1055 , incorporated

into the United Nations Charter, states that "[t]he decision of the [ICJ] has no binding force

except between the parties and in respect of that particular case." Of course, the ICJ deals with

disputes between nations (even though they may address the rights and obligations of a nation vis

a vis private individuals), and only nations are parties to such proceedings. Here, of course,

neither appellant nor El Salvador were parties to the

Avena case and therefore that decision is not

binding in this case.

41. 523 U.S. 371 (1998).

42.

Id. at 376 .

43. The only witness who testified that appellant said he was from El Salvador was Officer

Benavides who interviewed appellant on August 21

st beginning at about 3:05 p.m.

44. During the evening of August 20

th , appellant had received a cell phone call from his

wife and he spoke to her on the phone without any interruption or interference.

45.

See Avena , 2004 I.C.J. 128 at ¶ 84 (noting that "Article 1 of the Vienna Convention on

Consular Relations, which defines certain of the terms used in the Convention, offers no

definition of the phrase 'without delay'").

46.

See Breard , 523 U.S. at 375 (noting that "while we should give respectful

consideration to the interpretation of an international treaty rendered by an international court

with jurisdiction to interpret such, it has been recognized in international law that, absent a clear

and express statement to the contrary, the procedural rules of the forum State govern the

implementation of the treaty in that State").

47.

But see Richard Posner, No Thanks, We Already Have Our Own Laws , Legal Affairs,

July-Aug. 2004, at 40, 42 (arguing that the use of foreign law as authority flirts with the

"discredited" idea of "universal natural law" and noting that the citation of foreign case law " is

one more form of judicial fig-leafing, of which we have enough already" ).

48.

Avena , 2004 I.C.J. 128 at ¶ 79.

49.

United States v. Rodrigues , 68 F. Supp.2d 178, 184 (E.D.N.Y. 1999) ("There is no

prohibition anywhere in the Convention against continuing to question a foreign national while

awaiting consular contact"); see also United States v. Alvarado-Torres , 45 F. Supp. 2d at 991 ;

United States v. Chaparro-Alcantara , 37 F. Supp.2d 1122, 1126-27 (C.D. Ill. 1999).

50.

Id. at ¶ 85.

51.

Id.

52.

Id. at ¶ 86.

53.

Id.

54.

Id.

55.

Id.

56.

Id.

57.

Id. ¶ 87. This is not at all surprising as the seminal American case of Miranda v.

Arizona, 384 U.S. 436 (1966), which required that an arrestee be warned of his constitutional

rights to counsel and against self-incrimination, was not delivered until three years after the treaty

was drafted. The Miranda rights are secured under the Fifth and Sixth Amendments to our own

Constitution and are essential to our criminal justice system, but they are by no means universally

recognized or enforced by other nations. See Miranda , 384 U.S. at 442-43 (stating that the Fifth

Amendment's right against self-incrimination "had its origin in a protest against the inquisitorial

. . . methods of interrogating accused persons, which have long obtained in the continental

system") (internal quotations omitted); see also Gordon Van Kessel, European Perspectives on

the Accused as a Source of Testimonial Evidence , 100 W. Va. L. Rev. 799 , 810 (1998) (noting

that even today European countries typically do not afford a right to counsel during police

questioning); Diane Marie Amann, A Whipsaw Cuts Both Ways: The Privilege Against Self-Incrimination in an International Context , 45 UCLA L. Rev. 1201 , 1251-54 (1998) (discussing

the recent development of a rising right to silence in other nations but noting that this right

generally remains less expansive than the Fifth Amendment right in the United States). There is

no reason to think the drafters of the Vienna Convention had these uniquely American rights in

mind or that they intended these rights to be applied to all nations who were signatories to the

treaty.

58. 2004 I.C.J. 128 at ¶ 87.

59.

Consular Notification and Access, Part 3: FAQs . See

http://travel.state.gov/law/consular_748.html.

60.

Id.

61.

Id.

62.

Id. ; see also Consular Convention between the United States and the Soviet Union, 19

U.S.T. 5018 art. 12 (state that notification shall be given "immediately"), and Protocol (stating

that notification may be given within one to three days).

63.

See 7 Foreign Affairs Manual § 426.2-1 (2004), available at

http://foia.state.gov/masterdocs/07fam/07m0420.pdf.

64.

See Bell v. Commonwealth , 264 Va. 172, 185-87 , 563 S.E.2d 695, 706 (2002), cert.

denied, 537 U.S. 1123 (2003) (consular notification within 36 hours after defendant taken into

custody was made without delay); United States v. Ore-Irawo , 78 F. Supp. 2d 610, 613 (E.D.

Mich. 1999) (stating that "available authorities suggest that the term 'without delay' [in Article

36] refers to a time-period of one to three days").

65.

See, e.g., Tex. Code Crim. Proc. art. 11.15 (" The writ of habeas corpus shall be

granted without delay by the judge or court receiving the petition, unless it be manifest from the

petition itself, or some documents annexed to it, that the party is entitled to no relief whatever");

id. art. 14.051 ( " 'fresh pursuit' means a pursuit without unreasonable delay by a peace officer of

a person the officer reasonably suspects has committed a felony"); id , art. 14.06 (" the person

making the arrest or the person having custody of the person arrested shall take the person

arrested or have him taken without unnecessary delay, but not later than 48 hours after the person

is arrested, before the magistrate who may have ordered the arrest"); id. art. 15.08 (officer shall

execute telegraphed arrest warrant "without delay"); id., art. 17.30 (magistrate issuing emergency

protective order shall certify proceedings and deliver documents to clerk of the proper court

"without delay"); id. art. 18.06(a) (" A peace officer to whom a search warrant is delivered shall

execute it without delay and forthwith return it to the proper magistrate. It must be executed

within three days from the time of its issuance, and shall be executed within a shorter period if so

directed in the warrant by the magistrate").

66. Tex. Code Crim. Proc. art. 15.17(a).

67.

See McGee v. Estelle , 625 F.2d 1206, 1209 (5th Cir. 1980).

68. 500 U.S. 44 (1991).

69.

Id. at 56 . However, a defendant might be able to show that the delay in a particular

case, although less than 48 hours, was unreasonable.

In evaluating whether the delay in a particular case is unreasonable, however,

courts must allow a substantial degree of flexibility. Courts cannot ignore the

often unavoidable delays in transporting arrested persons from one facility to

another, handling late-night bookings where no magistrate is readily available,

obtaining the presence of an arresting officer who may be busy processing other

suspects or securing the premises of an arrest, and other practical realities. (70)

70.

Id. at 56-57 . -

71. Numerous American courts have followed the lead of the First Circuit in

Li , and held

that "[i]ndividual defendants deprived of consular notification are not entitled to raise their

treatment as a defense against criminal prosecution." 206 F.3d at 65 (noting, inter alia , that "the

State Department is apparently 'unaware of any country party to any consular convention with

the United States that remedies failures of notification through its criminal justice process'"); see

also United States v. Bustos de la Pava , 268 F.3d at 165 n.6; United States v. Emuegbunam , 268

F.3d at 390-91; United States v. Chaparro-Alcantara , 226 F.3d at 621; United States v.

Duarte-Acero , 296 F.3d 1277, 1282 (11th Cir. 2002); State v. Prasertphong , 206 Ariz. 70, 83

(Ariz. 2003); State v. Buenaventura , 660 N.W.2d 38, 46-47 (Iowa 2003); Garcia v. State , 17 P.3d

994, 996-97 (Nev. 2001); State v. Martinez-Rodriguez , 33 P.3d 267, 273-74 (N.M. 2001); State

v. Sanchez-Llamas , 108 P.3d 573, 577-78 (Or. 2005).

72.

See Rocha , 16 S.W.3d at 23 (Holland, Meyers, Price & Johnson, JJ., concurring)

(stating that although article 38.23 is a "permissible enforcement mechanism for violations of

Article 36 of the Vienna Convention," appellant failed to show any causal connection between

that violation and his oral statements given to the police).

73.

United States v. Rodrigues , 68 F. Supp.2d at 184 (collecting cases). In United States v.

Villa-Fabela , 882 F.2d 434, 440 (9 th Cir. 1989), the Ninth Circuit set out a more generalized test

for demonstrating actual prejudice for a Vienna Convention violation. Under that test, the

defendant bears the burden of establishing that "(1) he did not know of his right; (2) he would

have availed himself of the right had he known of it; and (3) 'there was a likelihood that the

contact would have resulted in assistance to him.'" Id. Under this test, appellant has failed to

establish any of the three required prejudice prongs. Indeed, the record demonstrates that he did

know of his right to contact his consulate from his prior aggravated robbery plea; he never stated

or suggested that he would have requested the police to inform the Salvadoran consulate of his

detention; and the Salvadoran consulate did not send an official to testify at appellant's trial

concerning what assistance they could or would provide to their nationals detained in Texas.

74.

See Rodrigues, 68 F. Supp. 2d at 184 .

75. Appellant does not cite, and we are unable to find, any precedent that holds that a

violation of the Vienna Convention, unconnected to any showing of prejudice, requires judicial

relief in the form of evidence suppression, retrial, or modification of a sentence.

See e.g..

Breard , 523 U.S. at 377 (stating that "it is extremely doubtful that the violation should result in

the overturning of a final judgment of conviction without some showing that the violation had an

effect on the trial" and noting that defendant's trial attorneys "were likely far better able to

explain the United States legal system to him than any consular official would have been");

United States v. Cardenas , 405 F.3d at 253-55 (defendant failed to show that he was harmed by

any lack of consular notification); United States v. Cordoba-Mosquera , 212 F.3d 1194, 1196

(11 th Cir. 2000) (defendants not entitled to relief for alleged Vienna Convention violation when

they failed to show how their rights were prejudiced); United States v. Ortiz , 315 F.3d 873, 887

(8 th Cir. 2002) (concluding that the "record contains no evidence that violations of the Vienna

Convention in the case of these defendants prejudiced them in any way. That violations occurred

is a fact, but it is a disembodied fact. Courts have no authority to enforce the law, including

treaties, in a vacuum, so to speak").

In Avena , for example, the ICJ concluded that an appropriate remedy for a violation of

Article 36 is a review to determine whether that violation "caused actual prejudice to the

defendant in the process of administration of criminal justice." Avena , 2004 I.C.J. 128 at ¶ 121.

76.

Mendoza v. State, 88 S.W.3d 236, 239 (Tex. Crim. App. 2002); Dinkins v. State, 894

S.W.2d 330, 353-54 (Tex. Crim. App. 1995).

77. Appellant also argues on appeal that his statements were involuntary due to his "fear of

police," his "fear of Mr. Cubas," and "the circumstances under which he was held." Appellant

did not advance these arguments when he requested the 38.23 instruction at trial; thus, we

decline to address them on appeal. T

EX . R. A PP . P. 33.1.

78. Det. Ortiz testified at the pretrial hearing on the motion to suppress that he took

appellant into custody at 1:10 a.m., after a check of his criminal status revealed that he had a

"warrant for a Motion to Adjudicate."

79. Defense counsel cross-examined the officers regarding the terminology they used when

they read appellant his rights. They acknowledged that they used the term "consejo," a Spanish

word for "advice," instead of "advertencia," a Spanish word for "warning." Appellant, however,

presented no evidence at trial that the terms used by the officers misled him in any way. Officer

Chavez testified that he generally uses these terms interchangeably, and that appellant appeared

to understand that he was receiving his legal warnings. Further, a court interpreter testified at the

pretrial hearing on the motion to suppress that "consejo" is frequently used for the word

"warning" in courtrooms and in the legal system.

80. 530 U.S. 466 (2000).

81. 536 U.S. 584 (2002).

82.

Rayford v. State, 125 S.W.3d 521, 534 (Tex. Crim. App. 2003), cert. denied, 125 S. Ct.

39 (2004); Hankins v. State, 132 S.W.3d 380, 386 (Tex. Crim. App.), cert. denied, 125 S. Ct. 358

(2004).

83.

Rayford, 125 S.W.3d at 534 .

84. Appellant alleged a number of other grounds in his motion for new trial, but on appeal

he provides argument and authority to support only his claim of cruel and unusual punishment

under the Eighth and Fourteenth Amendments. T

EX . R. A PP . P. 38.1.

85. King v. State, 29 S.W.3d 556, 569 (Tex. Crim. App. 2000).

86. Tex R. App. P. 21.9.

87.

State v. Hight, 907 S.W.2d 845, 846 (Tex. Crim. App. 1995); State v. Bates, 889

S.W.2d 306, 310 (Tex. Crim. App. 1994).

88.

Faulder v. Johnson, 99 F. Supp. 2d 774, 777 (S.D. Tex. 1999); White v. Johnson, 79

F.3d 432 , 440 n. 2 (5 th Cir. 1996).

89. T

ex . R. Evid. 404(b); Montgomery v. State, 810 S.W.2d 372, 387-88 (Tex. Crim. App.

1991) (op. on reh'g).

90.

Moses v. State, 105 S.W.3d 622, 627 (Tex. Crim. App. 2003).

91.

Montgomery, 810 S.W.2d at 387 ; Mozon v. State, 991 S.W.2d 841, 846 (Tex. Crim.

App. 1999).

92. The trial court instructed the jury that it could only consider the extraneous offense "in

determining the intent or knowledge of the defendant, if any, in connection with the offense, if

any, alleged against him in the indictment and for no other purpose."

93.

Brooks v. State, 990 S.W.2d 278, 288 (Tex. Crim. App. 1999); Raby v. State, 970

S.W.2d 1, 6-7 (Tex. Crim. App. 1998).