Carlos Rodriguez v. State

Opinion issued December 22, 2011.

In The

Court of

Appeals

For The

First District

of Texas

————————————

NO. 01-10-00635-CR

———————————

Carlos Rodriguez , Appellant

V.

The State of

Texas , Appellee

On Appeal from the 184th District Court

Harris County, Texas

Trial Court Case No. 1172466

MEMORANDUM OPINION

A jury convicted appellant, Carlos Rodriguez, of murder and

assessed his punishment at seventy-five years’ confinement. [1] In three issues, Rodriguez contends that: (1)

the trial court erred in allowing into evidence testimony and exhibits of

extraneous crimes, conduct, wrongs, and bad acts that relate to MS-13 gang

membership or affiliation; (2) the trial court erred in denying his amended

motion to suppress his statement; and (3) without his statement, the evidence

is insufficient to support his conviction.

We

affirm.

Background

On

the night of June 21, 2008, Manuel Sandoval hosted a birthday party for his wife’s

friend. Among the thirty to forty people

in attendance were Ernesto Garcia, the complainant, and three people who worked

with Sandoval at his landscaping company: appellant, Joaquin Guevara, and Eliseo Perez. After

midnight, appellant, Sandoval, Garcia, Guevara, and Perez left the house in

Sandoval’s black Ford Expedition to buy more beer. Sandoval drove, Guevara sat in the front

passenger seat, appellant sat in the back seat behind Guevara, Garcia sat in

the back seat behind Sandoval, and Perez sat in the middle of the third row of

seats.

The

first store at which Sandoval stopped was closed, and Guevara told him to

continue driving to look for another store. As they were riding, Sandoval testified that Guevara

was dancing in the seat, “making signs,” and repeating the phrase “my throat is

dry” several times to those in the back of the car. Sandoval also testified that shortly afterwards,

he saw appellant stab Garcia several times. He could not see what Perez was doing. Perez later stated to police that he also

stabbed Garcia because he and appellant were MS-13 “soldiers” on a “mission”

from Guevara, their leader. Perez also

told police that appellant had the bigger of the two knifes, that appellant

stabbed Garcia many more times than he did, and that appellant “finished off”

Garcia after his own knife broke.

However, at trial, Perez testified that he lied to police about what

happened based on a fear of going to prison alone; that, in reality, he was the

only one who stabbed Garcia; and that he did so because he saw Garcia

struggling with appellant.

Guevara

then directed Sandoval to find a street to turn onto. Sandoval turned at the first road he saw and

stopped the truck, and Guevara removed Garcia’s body from the car. Guevara told Sandoval to drive back to his

home and, once they arrived, told him that they were going to take his truck. Perez, Guevara, and appellant then left with

Sandoval’s vehicle. The following day, Guevara

informed Sandoval that his truck had been burned and told him to report it

stolen. Two hours after Sandoval

reported his vehicle stolen, the truck was discovered

completely burned. The body of Ernesto

Garcia was discovered by a citizen in the early hours of June 22, 2008.

Investigating

officers took two statements from Sandoval, which led them to arrest the other

men in the vehicle, including appellant.

Following his arrest, officers took appellant to the investigation

facility and questioned him. The officers video-recorded appellant’s statement regarding the

events of the evening. Appellant told

investigators that he stabbed Garcia in self-defense because, in the car on

their way to get more beer, Garcia attempted to rob him of his wallet and in

the resulting scuffle Garcia was somehow stabbed.

Appellant

moved to suppress his statement on the ground that he did not knowingly and

voluntarily waive his rights. Following the

suppression hearing, the trial court denied appellant’s motion to suppress and

made findings of fact.

At

trial, several officers and other law enforcement personnel testified regarding

their roles in the investigation, including Deputy J. Balderas, who responded

to the 911 call of the person who discovered Garcia’s body; Deputy V. Vu, a

crime scene investigator with the Harris County Sheriff’s Office (“HCSO”) assigned

to the scene where Garcia’s body was discovered; Deputy F. Rivera, an

investigator with the HCSO who helped take appellant’s statement; Deputy J.

Cassidy, another HCSO deputy who interviewed Sandoval and, along with Deputy

Rivera, discovered appellant hiding inside his apartment and observed him

exhibiting odd behavior; and Deputy M. Quintanilla, the lead investigator on

the case. Deputies Quintanilla and

Cassidy both testified that Sandoval was not considered a suspect in the

murder, even though they did not believe he was initially honest with

investigators. Cassidy testified that

Sandoval was hesitant to tell police the truth about the murder because he

feared that MS-13 gang members would retaliate against his family. Jose Garcia, the complainant’s uncle,

testified for purposes of identifying the complainant.

Dr.

Mary Anzalone , the assistant medical examiner who

performed Garcia’s autopsy, testified regarding his cause of death. She described in detail the thirty-four

sharp-force injuries present on Garcia’s head, torso, and extremities, including

wounds that perforated his jugular vein and carotid artery, his pulmonary

artery and left lung, his diaphragm, and his colon. She testified that while some of Garcia’s

wounds were superficial and defensive in nature, particularly the ones on his

hands and arms, many of the wounds could have been fatal, and they could have

been caused by two different sharp-edged instruments. She testified that Garcia died of multiple

sharp-force injuries.

Manuel

Sandoval testified regarding the events of the night Garcia was murdered, and

he also testified about his knowledge of appellant’s, Perez’s, and Guevara’s

gang affiliations. Eliseo

Perez testified regarding the events of the night of the party and the

stabbing. He testified that he,

appellant, Guevara, Sandoval, and Garcia left the party to get beer and that he

stabbed Garcia because he saw that Garcia “wanted to do something” to

appellant. Perez testified that, after

the stabbing, the others left Garcia’s body on the side of the road and then

returned to the party and dropped Sandoval off and that he was aware the

vehicle was later burned. Perez

testified extensively about the details regarding where everyone was sitting,

the number of times he believed Garcia was stabbed, and his previous statement

to police regarding his involvement in the stabbing. Perez also testified regarding his,

appellant’s, and Guevara’s affiliation with the Mara Salvatrucha ,

or MS-13, gang.

The

jury convicted appellant of murder, and proceeded to hear the evidence at

punishment. Deputy Quintanilla testified

again, as did Houston Police Department Officer A. Gorham-Maki, an expert on

gang activity. The jury assessed

appellant’s punishment at seventy-five years’ confinement. This appeal followed.

Gang Affiliation

In

his first issue, appellant contends that the trial court abused its discretion

when it allowed testimony and exhibits relating to his gang membership and

affiliation. Appellant argues that the

State failed to show: (1) that the evidence of his affiliation with the MS-13

gang was relevant, (2) that it was admitted for any other purpose than for

showing propensity or conformity, and (3) that its probative value substantially

outweighed the dangers of unfair prejudice even if it was relevant.

A.

Relevant Background

Appellant

requested and was granted a motion in limine

disallowing any reference to his gang membership or affiliation without first

approaching the bench. During Perez’s

testimony, the State approached the trial court and asked for permission to

question Perez regarding a gang tattoo that was visible to the jury and that

Perez had acquired after the stabbing.

Appellant objected, arguing that “anything that is done after his arrest

has got nothing to do with [appellant] and his trial. It’s inflammatory. It’s prejudicial.” The trial court sustained appellant’s

objection.

Later

in the trial, in its re-direct examination of Perez, the State again approached

the trial court, this time regarding admission of Perez’s pretrial statement to

police that the killing was gang-related. Appellant objected to the State’s introduction

of any evidence of gang affiliation because appellant did not raise it during

his cross-examination. The court

overruled his objection, stating that Perez’s statement that the stabbing was

part of a gang “mission” was relevant to appellant’s motive. The State proceeded to question Perez about

his statements that appellant was mad at Garcia for hitting on his girlfriend,

that he and appellant were MS-13 “soldiers” on a “mission” lead by Guevara, and

that the signal to attack Garcia was the phrase “my throat is dry.” Perez testified that he remembered making

some of those statements but not others.

Perez stated that he was the only one who stabbed Garcia, that he

stabbed Garcia in an attempt to help appellant because he saw that Garcia and

appellant were struggling, and that he told police appellant was involved in

the stabbing because he did not want to go to jail alone.

The

State also questioned Perez about the meaning of the tattoo on his head, and

Perez testified that it said “MS la Mara” and that MS stood for “Mara Salvatrucha .” Perez

testified that he had been a part of the Mara Salvatrucha

gang for two years, but that Sandoval was not a gang member.

When

the State sought to question Perez concerning photographs of himself,

appellant, and Guevara making gang signs, appellant objected. He stated, “I’ve got an ongoing objection. .

. . I’m going to have the objection that

it’s inflammatory, prejudicial and [of] no probative value as to [whether

appellant is] guilty of murder or not guilty.”

The trial court overruled the objection, the photos were admitted into

evidence, and Perez testified that they showed himself ,

appellant, and Guevara making gang signs associated with the Mara Salvatrucha gang.

The

jury heard additional testimony regarding appellant’s gang affiliation from

Manuel Sandoval, Deputy Quintanilla, Deputy Cassidy, and Officer

Gorham-Maki. Sandoval testified that, on

the night of the murder, he witnessed Guevara dancing in his seat and making

what he believed to be gang signs to both appellant and Perez. Sandoval also stated that he was aware of

appellant’s, Guevara’s, and Perez’s gang affiliation, that he heard Guevara

repeat “my throat is dry” several times, and that MS-13 gang members had

threatened his family in El Salvador. Deputy

Cassidy testified that Sandoval originally lied to investigators because he was

afraid of gang retaliation.

Deputy

Quintanilla testified that, after questioning Sandoval, he believed that MS-13,

or Mara Salvatrucha , gang members were involved in

the murder and that Sandoval provided the names of some of the gang

members. Deputy Quintanilla testified

that, in the course of his investigation, he received consent to search the

apartment where he arrested Perez. One

of the things he discovered in the course of the search were

photographs “depicting males . . . throwing gang signs, mainly belonging to the

MS-13 gang.” Quintanilla testified that

the photographs depicted Perez, Guevara, and appellant wearing colors and

symbols and making signs affiliated with MS-13 gang membership. The photos were admitted into evidence.

Similar

photos were also used during the punishment phase of trial. Officer Gorham-Maki testified about the

structure of the MS-13 gang, its discipline and rules for members, its criminal

activities, common hand signals, attire, and tattoos associated with that gang,

and MS-13’s use of nicknames. Officer

Gorham-Maki also testified about photographs found in appellant’s apartment

that showed gang signs, dress, and tattoos associated with MS-13.

B.

Standard of Review

We

review a trial court’s ruling on the admissibility of evidence under an abuse

of discretion standard. Casey v. State , 215

S.W.3d 870, 879 (Tex. Crim. App. 2007).

“A trial court abuses its discretion when its decision lies outside the

zone of reasonable disagreement.” Id.

The trial judge should not be reversed simply because an appellate court

believes that it would have decided the matter otherwise. Powell v. State , 189 S.W.3d 285, 288 (Tex. Crim. App. 2006). We will uphold an evidentiary ruling if it is

reasonably supported by the record and correct under any applicable legal

theory. Martinez v. State , 91 S.W.3d 331, 336

(Tex. Crim. App. 2002).

“‘Relevant

evidence’ means evidence having any tendency to make the existence of any fact

that is of consequence to the determination of the action more probable or less

probable than it would be without the evidence.” Tex R. Evid . 401. In

general, relevant evidence is admissible, and evidence that is not relevant is

inadmissible . Tex. R. Evid .

402. However, under certain

circumstances, even relevant evidence can be excluded. Rule 403 provides that 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, or by

considerations of undue delay, or needless presentation of cumulative

evidence.” Tex. R. Evid . 403.

A

proper Rule 403 analysis requires the trial court to balance the following

factors:

(1) the

inherent probative force of the proffered item of evidence along with (2) the

proponent’s need for that evidence against (3) any tendency of the evidence to

suggest decision on an improper basis, (4) any tendency of the evidence to

confuse or distract the jury from the main issues, (5) any tendency of the

evidence to be given undue weight by a jury that has not been equipped to

evaluate the probative force of the evidence, and (6) the likelihood that

presentation of the evidence will consume an inordinate amount of time or

repeat evidence already admitted.

Casey ,

215 S.W.3d at 880 .

The court determines the probative value of evidence by determining how

strongly the evidence “serves to make more or less probable the existence of a

fact of consequence to the litigation” coupled with the proponent’s need for

that item of evidence. Id. at 879 . Then, the trial court must assess whether the

probative value is substantially outweighed by one of the countervailing

considerations listed in Rule 403. Id. The

trial court has considerable freedom in weighing the probative value of

evidence in relation to its prejudicial effect.

Montgomery v.

State , 810 S.W.2d 372, 378 (Tex. Crim. App. 1991) (op. on reh’g ). In

close cases, the trial court should favor admission in keeping with the

presumption of admissibility of relevant evidence. Hernandez v. State , 817 S.W.2d 744, 746 (Tex. App.—Houston [1st

Dist.] 1991, no pet.).

Rule

404(b) excludes evidence of other crimes, wrongs, or acts admitted only for the

purpose of proving “the character of a person in order to show action in

conformity therewith,” but it provides that such evidence may be admissible

“for other purposes, such as proof of motive, opportunity, intent, preparation,

plan, knowledge, identity, or absence of mistake or accident. . . .” Tex R. Evid . 404( b ) . Gang affiliation is considered Rule 404(b)

evidence of a crime, wrong, or act subject to exclusion. See Pondexter v. State , 942 S.W.2d 577 ,

583–84 (Tex. Crim. App. 1996).

However, during the guilt-innocence phase of the trial, gang affiliation

is considered relevant and admissible to refute a defensive theory. See Tibbs v. State , 125 S.W.3d 84, 89 (Tex. App.—Houston

[14th Dist.] 2003, pet. ref’d ).

C.

Admission of Gang Affiliation during

Guilt-Innocence

Appellant argues that the evidence of his affiliation with

the MS-13 gang was irrelevant and that the State failed to prove that it was

admitted for any purpose other than for showing his propensity to act in

conformity with his other acts as a gang member. Appellant also argues that, even if that

evidence was relevant, the danger of unfair prejudice substantially outweighed

the evidence’s probative value. Thus,

appellant’s objections are based on Rules of Evidence 401, 402, 403, and

404(b).

1.

Relevance and admissibility under Rule 404(b)

Texas courts have held that gang membership evidence is

admissible under Rule 404(b) and Rule 402 if it is relevant to show a

non-character purpose that, in turn, tends to show the commission of the

crime. See, e.g. , Ortiz v. State ,

93 S.W.3d 79, 94 (Tex. Crim. App. 2002) (holding that evidence of gang

affiliation is admissible under Rule 404(b) to show variety of non-character

purposes); Trevino v. State , 228

S.W.3d 729, 735 (Tex. App.—Corpus Christi 2006, pet. ref’d )

(“Gang affiliation evidence is relevant evidence of motive to show intent to

kill and is permissible under rule 404(b).”); Tibbs , 125 S.W.3d at 89 (holding

that evidence of gang affiliation was admissible to rebut appellant’s defensive

theories that complainant started fight and appellant acted in

self-defense).

Here, appellant’s defensive theory was that Garcia first

attempted to steal his wallet and that he stabbed Garcia in self-defense in the

ensuing scuffle. Perez also testified

that he stabbed Garcia because he saw him struggling with appellant. Thus, testimony of appellant’s gang

affiliation and the statements that the killing was carried out as a gang

“mission” in response to Garcia’s behavior toward appellant’s girlfriend were

relevant and admissible to show appellant’s motive and to rebut his

self-defense theory. See Tibbs , 125 S.W.3d at 89 .

2.

Rule 403 factors

“The term ‘probative value’ refers to the inherent

probative force of an item of evidence—that is, how strongly it serves to make

more or less probable the existence of a fact of consequence to the litigation—coupled

with the proponent’s need for that item of evidence.” Casey ,

215 S.W.3d at 879 .

“‘Unfair prejudice’ refers to a tendency to suggest decision on an

improper basis, commonly, though not necessarily, an emotional one.” Id. at 879–80. The

evidence must be unfairly

prejudicial, as virtually all evidence offered by a party to a lawsuit will be

prejudicial to the opposing party. Montgomery , 810 S.W.2d

at 378 . Other factors include the

tendency of the evidence to confuse or distract the jury from the main issues

and the likelihood that the presentation of the evidence will consume an

inordinate amount of time or be unnecessarily repetitive. See Casey ,

215 S.W.3d at 879 (citing Gigliobianco v. State ,

210 S.W.3d 637 , 641–42 (Tex. Crim. App. 2006)).

These factors may well blend together in practice. Gigliobianco , 210 S.W.3d at 642 .

Although evidence of involvement with a gang can be highly

prejudicial, here the probative value of the evidence to establish appellant’s

motive and the State’s need to use the evidence to rebut his self-defense

theory outweigh any unfair prejudice. Evidence

of appellant’s gang affiliation served to make his theory that he acted in

self-defense less probable, and the State’s need for such evidence to rebut

that defensive theory was strong. See Casey , 215 S.W.3d at 883–84 (holding

trial court did not abuse its discretion in admitting prejudicial photographs

where photographs supported testimony of complainant that she did not consent

to sexual encounter and demonstrated appellant’s modus operandi and stating, “Although this evidence might have been

inadmissible under Rule 403 had the defense not put [the complainant’s]

character, motives, recollection, and conduct on trial, once he chose that

strategy, the trial judge did not abuse her discretion in permitting the State

to rebut it with modus operandi

evidence.”).

Appellant argues that the State introduced an

“over-whelming amount of MS-13 gang affiliation evidence without conducting a

balancing test.” However, we presume

that the trial court conducted a Rule 403 balancing test, and a silent record

does not imply otherwise. Williams v. State , 958

S.W.2d 186 , 195–96 (Tex. Crim. App. 1997). Furthermore, the record does not support a

conclusion that the State devoted an excessive amount of time to presenting

this evidence or that the evidence of gang affiliation presented was needlessly

repetitive. The testimony of appellant’s

gang affiliation was a proportionately small part of Perez’s, Sandoval’s,

Quintanilla’s, and Cassidy’s testimony, and several witnesses did not testify

about gang activity at all. Rather, the

evidence admitted was necessary to rebut appellant’s defensive theories as

presented by Perez’s and appellant’s statement and to prove appellant’s motive.

D.

Evidence of Gang Affiliation during Punishment

Although

appellant does not specifically contest the admission of gang affiliation evidence

during punishment, he argues against that the trial court erred in admitting “all

evidence at trial” regarding gang affiliation, and his

brief specifically complains of testimony presented only during the punishment

phase of trial. Thus, we also address

the trial court’s ruling to allow evidence of appellant’s gang affiliation

during punishment.

During

a trial’s punishment phase, evidence may be offered regarding any matter the

court deems relevant, including evidence of a defendant’s character or

reputation. Tex Code Crim. Proc. Ann. art.

37.07, § 3(a )( 1) (Vernon Supp. 2011). Relevant evidence at the punishment stage is

not necessarily evidence deemed relevant under Rule 401, but instead consists

of anything that may help the jury determine the appropriate punishment. See

Garcia v. State , 239 S.W.3d 862, 865

(Tex. App.—Houston [1st Dist.] 2007, pet. ref’d )

(citing Mendiola v. State , 21 S.W.3d 282, 285 (Tex.

Crim. App. 2000)).

Testimony

regarding a defendant’s affiliation with a gang may be relevant and admissible

during punishment to show the defendant’s character. Beasley v. State , 902 S.W.2d 452, 456 (Tex. Crim. App. 1995). The evidence does not have to link the

defendant to the bad acts or misconduct engaged in by the gang’s members, as

long as the jury is (1) provided with evidence of the defendant’s gang

membership, (2) provided with evidence of the character and reputation of the

gang, (3) not required to determine if the defendant committed bad acts or

misconduct, and (4) asked only to consider the reputation or character of the

accused. Id . at 457.

During

punishment, the officers testified generally regarding MS-13 tattoos and the

history and context of MS-13 gang membership and affiliation, including its

high level of brutality. Officer

Gorham-Maki further testified that the photographs admitted into evidence

depicting tattoos, hand signals, symbols, and clothing colors indicated that

appellant was a member of the MS-13 gang.

This

testimony was sufficient to show that appellant was a member of MS-13. See Garcia , 239 S.W.3d at 867 (holding that gang tattoos alone are

sufficient evidence of gang membership). Officer Gorham-Maki also

testified regarding the character and reputation of MS-13 generally. Evidence of appellant’s affiliation with a

well-known and dangerous gang was admissible during the punishment phase to

show appellant’s character. See Dawson v. Delaware , 503 U.S. 159,

161, 163 , 112 S. Ct. 1093 , 1096–97 (1992).

We

overrule appellant’s first issue.

Motion to Suppress

In his second issue, appellant asserts that the trial

court erred when it denied his motion to suppress because he: (1) did not

knowingly and intelligently waive his rights to remain silent and to be represented

by counsel; and (2) he gave the statement without knowing and completely

understanding his rights.

A.

Relevant Background

At

the suppression hearing, Deputy Quintanilla testified that he discovered that

appellant was a suspect in Garcia’s murder after questioning Sandoval, who

“basically gave [officers] a synopsis of what happened, how it happened, how it

occurred, the people involved, and how the murder took place.” Sandoval helped Deputy Quintanilla find

appellant’s and the other suspects’ apartments and informed the officers that

all of the suspects planned on collecting their paychecks and leaving Houston

first thing in the morning.

Deputy

Cassidy made the first contact with appellant at his apartment, informed

appellant why he was there, and received consent to search the apartment. When Deputy Quintanilla arrived at

appellant’s apartment, Sandoval positively identified appellant as the person

who had stabbed Garcia. At that time,

Deputy Quintanilla placed appellant under arrest, informed him that he was a

suspect in a murder investigation, and transported him to a police facility for

questioning.

Deputy

Quintanilla took a formal, video-recorded statement from appellant. He testified that he read appellant his

rights in Spanish, that appellant verbally indicated that he understood those

rights, and that appellant agreed to waive those rights and make a

statement. Quintanilla testified that he

offered appellant something to eat or drink, that he asked appellant if he

needed to use the bathroom, and that appellant did not appear to be

intoxicated. He further testified that

he did not threaten or coerce appellant at any time during the recorded

interview and that he did not directly or indirectly promise appellant

anything.

The

State introduced a copy of the video recording of appellant’s statement, a written

transcript, and a translation of appellant’s statement. According to the transcript, Deputy Rivera

asked appellant if he would like to use the restroom or get something to eat. Per appellant’s request, Deputy Rivera brought

appellant “sugar water.”

Deputy

Quintanilla began the interview by stating:

[Quintanilla]: Look, I’m going to read this. We’re

going to start the interview, and I have to read something. And you tell me if you understand or not. Okay. You

have the right to maintain your silence and say absolutely nothing. Any statement you make can be used against you

in the cause in which you are accused. Do

you understand what I’m telling you?

[Appellant]: No.

[Quintanilla]: Why don’t you understand?

[Appellant]: Like,

well, nothing, I don’t understand anything.

[Quintanilla]: Pardon?

[Appellant]: I

don’t understand anything. Can you repeat it?

[Quintanilla]: But do you understand…

[Appellant]: Huh?

No, nothing, nothing.

Deputy

Quintanilla agreed that appellant answered “emphatically” that he did not

understand. Deputy Quintanilla then

questioned appellant about his educational level and literacy. Appellant told Quintanilla that he went to

the seventh grade and that he understood how to read. Quintanilla then asked appellant whether he “understand[s]

well,” and appellant responded, “Yes.”

Quintanilla

then proceeded to repeat appellant’s rights in Spanish and, pausing after each

one, asked appellant if he understood:

[Quintanilla]: Ok. ( inaudible )

You have the right to maintain your silence and say absolutely nothing. Any

statement you make may be used against you in the cause in which you are

accused. Do you understand that?

[Appellant]: Uh huh.

[Quintanilla]: Yes?

[Appellant]: Yes.

[Quintanilla]: Any statement you make can be used as

evidence against you in court. Do you understand that? Ok. You have the right

to have a lawyer present to advise you before questioning and during the time

you’re being questioned. Do you understand that? Yes? Say yes or no.

[Appellant]: Yes.

[Quintanilla]: Ok. If you can’t employ a lawyer, you

have the right to have a lawyer appointed to you so that he can advise you

before or during the time you are questioned. Do you understand that?

[Appellant]: Yes.

[Quintanilla]: You have the right to end this interview

at any moment you wish. Do you understand that?

[Appellant]: Yes.

[Quintanilla]: Ok. Now you, I read you your rights,

understanding your rights, do you want to tell your part about what happened?

Yes? Ok. Um, start from, from Saturday. What happened Saturday when you arrived

at the party?

In

response to Deputy Quintanilla’s question, appellant began his statement. Appellant told Quintanilla that, after he left

the party with Guevara and Perez, he fell asleep in the back seat and woke up

to Garcia attempting to take his wallet.

He stated that Garcia first threatened him and attacked him with a

knife, and that, in the ensuing struggle, he hit

Garcia and caused Garcia to stab himself.

At

the hearing on his motion to suppress, appellant testified that he was scared

when the officers arrived at his apartment that morning, that Deputy Quintanilla

did not inform him that he was a suspect in a murder investigation, and that

when he arrived, and before he was taken to the interrogation room, he was

struck twice in the face by Deputy Rivera. He further testified that although he

understood the words that Deputy Quintanilla was saying, he did not understand

their significance. He testified that

although he eventually answered “yes” in response to the officer’s questions,

he did so because Deputy Rivera was “nodding his head at [him] like to say

‘yes.’” Appellant further testified that

he was afraid of Deputy Rivera because police in his native country torture its

citizens and because Deputy Rivera had insulted and struck him previously.

Appellant

stated that he did not understand the American judicial system or that he was

going to make an oral statement. Instead,

appellant believed a statement to be something written and signed. He also testified that the deputies promised

that he could leave after he gave his statement and that they raised their

voices during the interrogation, which scared him. On cross-examination, he admitted that there

were no visible injuries to his face following his interrogation.

At

the conclusion of the hearing, the trial court denied appellant’s motion to

suppress his statement. It found that

appellant knowingly, intelligently, and voluntarily gave his statement and

waived his rights. Because the deputy

asked if appellant wanted to tell what happened and appellant then answered,

the court found this to be an implicit waiver. Furthermore, the court found Deputy

Quintanilla to be credible and appellant to be not credible. Specifically, the court found it noteworthy

that because appellant understood and used words like “urinate” and

“significance,” and yet appellant stated that he did not understand the word “interview,”

it was likely that appellant was being dishonest. In addition, the court found that because

appellant was asked and able to both use the restroom and have something to

drink, there was no force or coercion used in obtaining his statement.

B.

Standard of Review

We

review the denial of a motion to suppress for an abuse of discretion. Shepherd

v. State , 273 S.W.3d 681, 684 (Tex. Crim. App. 2008). We give almost total

deference to the trial court’s express or implied determinations of historical

facts while reviewing de novo the court’s application of the law to those

facts. Id. ; Carmouche v. State , 10 S.W.3d 323, 327 (Tex. Crim. App. 2000). We view the evidence in the light most

favorable to the trial court’s ruling. Shepherd , 273 S.W.3d

at 684 . The trial court is the

sole trier of fact and the judge of the credibility of the witnesses and the

weight to be given their testimony. St. George v. State , 237

S.W.3d 720, 725 (Tex. Crim. App. 2007) . As a result, the trial court is free to

believe or disregard any or all of a witness’s testimony. Green v. State ,

934 S.W.2d 92, 98 (Tex. Crim. App. 1996). We sustain the trial court’s ruling if it is

reasonably supported by the record and correct on any theory of law applicable

to the case. Laney v. State ,

117 S.W.3d 854, 857 (Tex. Crim. App. 2003) .

A

defendant’s statement may be used in evidence against him if he made it freely

and voluntarily and without compulsion or persuasion. Tex. Code Crim. Proc. Ann. art.

38.21 (Vernon 2005).

Code of Criminal Procedure article 38.22 specifically provides that an

oral statement given while an accused was in custody may not be used unless

“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.” Id. art.

38.22, § 3(a )( 2) (Vernon 2005). Section 2(a) provides that the accused must

be warned that:

(1) he has the right

to remain silent and not make any statement at all and that any statement he

makes may be used against him at his trial;

(2) any statement he

makes may be used as evidence against him in court;

(3) he has the right

to have a lawyer present to advise him prior to and during any questioning;

(4) if he is unable to

employ a lawyer, he has the right to have a lawyer appointed to advise him

prior to and during any questioning; and

(5) he has the right

to terminate the interview at any time. . . .

Id.

art. 38.22, § 2(a )( 1)–(5).

A

defendant may claim that his statement was involuntary under several different

theories: (1) general involuntariness; (2) failure to warn against

self-incrimination; and (3) the deprivation of due process. See Oursbourn v. State , 259 S.W.3d 159, 169 (Tex. Crim.

App. 2008); see also Moore v. State ,

233 S.W.3d 32, 44 (Tex. App.—Houston [1st Dist.] 2007, no pet.) (holding

statements may be deemed involuntary in instances of noncompliance with Code of

Criminal Procedure article 38.22, noncompliance with Miranda v. Arizona , 384 U.S. 436 , 86 S. Ct. 1602 (1966), or when

there is violation of due process or due course of law like coercion or threats)

( citing Wolfe v.

State , 917 S.W.2d 270, 282 (Tex. Crim. App. 1996)). “The determination of whether a confession is

voluntary is based on an examination of the totality of circumstance

surrounding its acquisition.” Wyatt v. State , 23 S.W.3d 18, 23 (Tex.

Crim. App. 2000); see also Moore , 233

S.W.3d at 44 (holding that we must determine whether, in totality of

circumstances, defendant was coerced to degree that coercion, rather than his

free will, produced statement).

Once

a defendant raises the question of voluntariness, the State has the burden to

controvert the defendant’s evidence and must prove the voluntariness of the

confession by a preponderance of the evidence.

Alvarado v.

State , 912 S.W.2d 199, 211 (Tex. Crim. App. 1995). If the defendant’s evidence is not

controverted by the State, then the confession is inadmissible as a matter of

law. Brownlee v. State , 944 S.W.2d 463, 467

(Tex. App.—Houston [14th Dist.] 1997, pet. ref’d ). However, it is only necessary for the State

to controvert the evidence—it is not necessary for the State to rebut the

evidence. Muniz v. State , 851 S.W.2d 238, 252

(Tex. Crim. App. 1993).

The

Court of Criminal Appeals has held that the following fact scenarios can raise

a state-law claim of involuntariness: “(1) the suspect was ill and on

medication and that fact may have rendered his confession involuntary”; “(2)

the suspect was mentally retarded and may not have ‘knowingly, intelligently

and voluntarily’ waived his rights”; (3) the suspect “lacked the mental

capacity to understand his rights”; (4) the suspect was intoxicated, and he

“did not know what he was signing and thought it was an accident report.” Oursbourn , 259 S.W.3d at 172–73; see also Westly v. State , 754 S.W.2d 224,

229 (Tex. Crim. App. 1988) (considering suspect’s literacy); Armstrong v. State , 718 S.W.2d 686, 693

(Tex. Crim. App. 1985) (holding that relevant circumstances have included

length of detention, incommunicado or prolonged interrogation, refusing request

to telephone lawyer or friend, and physical brutality), overruled on other grounds , Mosely v. State ,

983 S.W.2d 249, 264 (Tex. Crim. App. 1998).

A defendant’s statement may also be involuntary if it was induced by a

promise that was: (1) positive; (2) of some benefit to the suspect; (3)

made or sanctioned by someone in authority; and (4) of such an influential

nature that a defendant would speak untruthfully in response. Creager v. State , 952 S.W.2d 852, 856 (Tex.

Crim. App. 1997).

C.

Analysis

Appellant

contends that his statement was involuntary because he was not aware of the

significance of his rights or the consequences of waiving those rights. Appellant also argues that he was coerced and

intimidated into giving his statement by physical mistreatment and by the deputy’s

promises that he would be allowed to leave.

However,

Deputy Quintanilla testified that appellant was not mistreated and that the

deputies did not make any promises to him.

The transcript of appellant’s interrogation shows that, prior to

questioning, Deputy Rivera—the officer who appellant asserts struck him—offered

appellant food, drink, and use of the restroom, and Rivera, at appellant’s

request, brought a “sugar water” for him to drink. The transcript contains no threats, coercion,

or promises. Furthermore, the alleged

promise in this situation—a promise that he could leave after he gave his

statement—is not of such an influential nature that a defendant would speak

untruthfully in response. See Creager , 952 S.W.2d at 856 .

Appellant

also testified that he was unable to comprehend the significance of his rights

and the waiver of such rights. At the

beginning of the interrogation, appellant clearly answered “no” in response to Deputy

Quintanilla’s questions concerning his understanding of his rights. He testified that although he eventually

answered “yes,” he only did so out of fear of the deputies and because Deputy

Rivera was suggesting that “yes” was the correct way to respond.

However,

after appellant told Deputy Quintanilla that he did not understand what was

being said to him, Quintanilla asked questions to establish that appellant was

literate and capable of understanding Spanish, that he was not ill or taking

any medications, and that he was not intoxicated or impaired in some way. Quintanilla read appellant his rights in

Spanish a second time, pausing after each one to give appellant an opportunity

to respond. Quintanilla testified that

he believed appellant understood his rights, and the transcript of the

interrogation shows that appellant responded in the affirmative. See

Villarreal v. State , 61 S.W.3d 673, 678 (Tex. App.—Corpus Christi 2001, pet.

ref’d ) (holding that Miranda waiver requirements are satisfied if, before making

statement, defendant is advised of his rights and merely states that he

understands them).

The

trial court heard the testimony of the witnesses and determined Deputy

Quintanilla to be credible and appellant to be not credible, and because these

findings are supported by the record, we give almost total deference to this

determination. See Shepherd , 273 S.W.3d at 684 . Looking at the totality of the circumstances,

we cannot say that the trial court abused its discretion in finding that appellant

was not coerced to the degree that coercion, rather than his free will,

produced his statement. See Moore , 233 S.W.3d

at 44 .

We

overrule appellant’s second issue.

Sufficiency of the Evidence

In his third issue, Rodriguez contends that had his statement

been suppressed, the State’s evidence was legally and factually insufficient to

support a murder conviction.

In light of the Court of Criminal

Appeals’ recent holding in Brooks v. State that there is no meaningful

distinction between the standards for legal and factual sufficiency review, we

will review the evidence only for legal sufficiency. 323 S.W.3d 893, 912 (Tex. Crim. App. 2010)

(overruling Clewis v. State , 922 S.W.2d 126 (Tex. Crim. App. 1996) ,

and holding that legal-sufficiency standard from Jackson v. Virginia, 443 U.S. 307 , 99 S. Ct. 2781 (1979)

is only standard to be applied in determining whether evidence is sufficient to

support finding of each element of criminal offense beyond reasonable doubt).

When

reviewing the sufficiency of the evidence, we view the evidence in the light

most favorable to the verdict to determine whether any rational fact finder

could have found the essential elements of the offense beyond a reasonable

doubt. Jackson , 443 U.S. at 319 , 99 S. Ct. at

2789 ; Brooks , 323 S.W.3d at 899, 912 . The jurors are the exclusive judges of the

facts, the credibility of the witnesses, and the weight to be given to the

testimony. Brooks , 323 S.W.3d at 899 . A jury may accept one version of the facts

and reject another, and it may reject any part of a witness’s testimony. Margraves v. State , 34 S.W.3d 912, 919 (Tex. Crim. App. 2000), overruled on other grounds , Laster v. State , 275 S.W.3d 512 (Tex. Crim.

App. 2009). We may not

re-evaluate the weight and credibility of the evidence or substitute our

judgment for that of the fact finder. Williams v. State , 235

S.W.3d 742, 750 (Tex. Crim. App. 2007).

We resolve any inconsistencies in the evidence in favor of the

verdict. Curry v. State , 30 S.W.3d 394, 406 (Tex. Crim. App. 2000).

The

indictment alleges that appellant “unlawfully, intentionally, and knowingly

cause[d] the death of Ernesto Garcia . . . by stabbing the complainant with a

deadly weapon, namely a knife.” See Tex

Penal Code Ann. § 19.02 (b )( 1) (Vernon 2011).

Appellant

argues that the evidence was insufficient without the improper admission of the

statement he made to police. However, we

have already held that the trial court did not abuse its discretion in denying

appellant’s motion to suppress, and thus appellant’s statement was properly

before the jury. Appellant also argues

that Sandoval and Perez were accomplices to the murder, that their testimony

could not support his conviction because it was uncorroborated by non-accomplice

evidence, and that their testimony was not credible, dependable, or

reliable.

Code of Criminal Procedure article 38.14 provides:

A conviction

cannot be had upon the testimony of an accomplice unless corroborated by other

evidence tending to connect the defendant with the offense committed; and the

corroboration is not sufficient if it merely shows the commission of the

offense.

Tex. Code Crim. Proc. Ann. art. 38.14 (Vernon 2005).

“An accomplice is someone who

participates with the defendant before, during, or after the commission of a crime

and acts with the required culpable mental state.” Druery v. State , 225 S.W.3d 491, 498 (Tex.

Crim. App. 2007). A witness is

not an accomplice merely because he knew of the offense and did not disclose it

or concealed it—the witness’s participation with the defendant must have

involved some affirmative act that promoted the commission of the offense. Id. “[T]he witness’s mere presence at the scene

of the crime does not render that witness an accomplice witness.” Id.

When

evaluating the sufficiency of corroboration evidence under the accomplice

witness rule, we “eliminate the accomplice testimony from consideration and

then examine the remaining portions of the record to see if there is any

evidence that tends to connect the accused with the commission of the crime.” Malone

v. State , 253 S.W.3d 253, 257 (Tex. Crim. App. 2008) (quoting Solomon v. State , 49 S.W.3d 356, 361

(Tex. Crim. App. 2001)). To meet the

requirements of the rule, the corroborating evidence need not prove the

defendant’s guilt beyond a reasonable doubt by itself. Id. Nor is it necessary for the corroborating

evidence to directly link the accused to the commission of the offense. Cathey v. State , 992 S.W.2d 460, 462 (Tex.

Crim. App. 1999). “Rather, the

evidence must simply link the accused in some way to the commission of the

crime and show that ‘rational jurors could conclude that this evidence

sufficiently tended to connect [the accused] to the offense.’” Malone ,

253 S.W.3d at 257 (quoting Hernandez v.

State , 939 S.W.2d 173, 179 (Tex. Crim. App. 1997)).

Each case must be judged on its own

facts, as there is no set amount of non-accomplice corroboration evidence that

is required for sufficiency purposes. Id.

Circumstances that are apparently insignificant may constitute

sufficient evidence of corroboration. Trevino v. State , 991

S.W.2d 849, 852 (Tex. Crim. App. 1999).

Additionally, while the mere presence of a defendant at the scene of a

crime is, by itself, insufficient to corroborate accomplice testimony, “[p]roof

that the accused was at or near the scene of the crime at or about the time of

its commission, when coupled with other suspicious circumstances, may tend to

connect the accused to the crime so as to furnish sufficient corroboration to

support a conviction.” Malone , 253 S.W.3d at 257 (quoting Brown v. State , 672 S.W.2d 487, 489

(Tex. Crim. App. 1984)).

The

trial court instructed the jury that, as a matter of law, Perez was an

accomplice, and thus the jury could not convict appellant based on Perez’s

testimony unless it believed that there was other evidence in the case, outside

the testimony of Perez, tending to connect appellant with the commission of the

offense. The jury was also instructed that

if it believed that Sandoval was an accomplice or if it had a reasonable doubt

whether he was or not, then it could not convict appellant based upon

Sandoval’s testimony unless it further believed that there was other evidence

in the case, outside the testimony of both Sandoval and Perez, tending to

connect appellant with commission of the offense.

Regarding

Sandoval’s testimony, the jury was permitted to determine that Sandoval was not

an accomplice, and thus his testimony did not require corroborating evidence

before it could be considered. See Druery ,

225 S.W.3d at 498–99 (“If the evidence presented by the parties is conflicting

and it remains unclear whether the witness is an accomplice, the trial judge

should allow the jury to decide whether the inculpatory

witness is an accomplice witness as a matter of fact. . . .”). Sandoval’s own testimony indicated that he

did not participate in the commission of the murder in any way—he agreed to

drive the other four men to get beer and witnessed the murder. He testified that Guevara returned him to the

party, drove off in his vehicle, and then called the next morning to tell him

that his truck had been burned and that he should report it stolen.

At

most, Sandoval was present at the scene of the crime and concealed its

occurrence from investigators, but this is not sufficient to show that he acted

as an accomplice. See id. at 498 . Furthermore, Deputies Cassidy and Quintanilla both testified that

they did not consider Sandoval a suspect in the investigation, and Cassidy

testified that Sandoval was fearful of telling the truth about the murder

because he believed MS-13 was a threat to his family. Thus, we conclude that the jury could have

considered Sandoval’s testimony without corroborating evidence. See id.

at 498–99; see

also Curry , 30 S.W.3d at 406 (holding that we resolve any inconsistencies

in evidence in favor of verdict).

Furthermore,

appellant’s own statements indicate that he was at the scene of the murder and

provide evidence of suspicious factors that are sufficient to corroborate

Perez’s testimony and tend to connect appellant with the crime. See

Malone , 253 S.W.3d at 257 ; see also

Cox v. State , 830 S.W.2d 609 , 611–12 (Tex. Crim. App. 1992) (holding that

appellant’s confession that he was at scene, combined with other suspicious

factors, was sufficient to corroborate accomplice testimony). In his statement, appellant explained that he

acted in response to Garcia’s attempt to steal his wallet,

that Garcia was the one who instigated the attack by making threats and

brandishing a knife, and that Garcia was somehow stabbed in the course of the

ensuing struggle. Deputies Rivera and

Cassidy testified that when they went to appellant’s apartment to investigate,

they found him hiding in a bedroom and that appellant was “acting weird.”

Thus

we conclude that Perez’s testimony was sufficiently corroborated by non-accomplice

evidence. See Malone , 253 S.W.3d at 257

Viewing

the evidence in the light most favorable to the verdict, we conclude that a

rational fact finder could have found that appellant intentionally and

knowingly stabbed Garcia to death.

Sandoval testified that he saw appellant stab Garcia. Perez acknowledged that he had previously

told police that he and appellant killed Garcia as part of a “mission” for the

MS-13 gang, that he and appellant both stabbed Garcia, and that appellant

“finished off” Garcia after Perez’s knife broke. Dr. Anzalone

testified that Garcia died of multiple sharp-force injuries,

that many of his wounds could have been fatal, and that two different

sharp-edged instruments could have been used to cause Garcia’s injuries.

We

conclude that the evidence was sufficient to support appellant’s conviction.

We

overrule appellant’s third issue.

Conclusion

We affirm the judgment of the trial court.

Evelyn

V. Keyes

Justice

Panel consists of Justices Keyes, Higley, and

Massengale.

Do not publish.

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

[1] See Tex. Penal Code Ann. § 19.02 (b) (Vernon 2011).