Opinions Released March 30, 2017

In this weekly blog, the Law Offices of Brandy Wingate Voss, PLLC will summarize recent decisions from the Thirteenth Court of Appeals and provide links to decisions on the court’s website.

Hernandez v. State, No. 13-14-00245-CR (Opinion by Justice Hinojosa; Panel Members: Justices Contreras and Longoria)

In this direct appeal from multiple felony convictions, the Thirteenth Court of Appeals analyzed the sufficiency of the Spanish version of the written Miranda warnings provided to the defendant, as well as other issues relating to the admissibility of the defendant’s confession .

Hector Vargas Hernandez was charged with three first-degree felonies: one count of continuous sexual abuse of a child, and two counts of aggravated sexual assault of a child. Hernandez confessed to the crimes after being advised of his Miranda rights and receiving a written copy of the rights in Spanish.

Hernandez later filed a motion to suppress his confession, claiming (1) that the Spanish version of the Miranda rights provided to him listed only four of the five warnings required by Texas Code of Criminal Procedure article 38.22; and (2) that he did not waive his Miranda rights knowingly, intelligently, and voluntarily because the Spanish admonishments used a Portuguese word—supracitada—which rendered them fatally defective. The trial court denied Hernandez’s motion to suppress and the case proceeded to trial.

After the jury deliberated, the trial court began reading the verdict form and announced that Hernandez was not guilty of continuous sexual assault of a child. Upon hearing this, the jury foreman notified the court that she had made a mistake and signed the wrong form. The trial court then sent the jury back to the jury room to fix the form. When the jury returned, the foreman confirmed that she had initially signed the wrong form. The foreman and jury members whited-out the mistake, and initialed beside their changes. The trial court then read from the corrected form, which found Hernandez guilty of all three charges. Hernandez was sentenced to forty years’ confinement for the continuous sexual abuse charge and ten years’ confinement for each of the aggravated sexual assault charges, and the judge ordered the sentences to run concurrently. Hernandez appealed.

Held: The trial court did not err by denying Hernandez’s motion to suppress, rejecting Hernandez’s proposed jury instruction, or allowing the jury to fix the verdict form. The judgment was affirmed.

Motion to Suppress

First, Hernandez challenged the trial court’s denial of his motion to suppress his confession. Hernandez claimed (1) that he was given only four of the five warnings required by article 38.22; and (2) that the use of the Portuguese word “supracitada” in the written Spanish Miranda warnings rendered them fatally defective.

Hernandez first challenged his confession because only four statements were enumerated in the written Miranda warning, but Texas Code of Criminal Procedure article 38.22 provided five particular rights. Article 38.22 requires that the defendant be informed: (1) he has the right to remain silent and that any statement may be used against him at trial; (2) any statement he makes may be used as evidence against him in court; (3) he has the right to an attorney to advise him prior to and during questioning; (4) he has the right to have an attorney appointed if he is unable to hire one; and (5) he has the right to end the interview at any time. A Miranda warning is sufficient if it substantially complies by fairly conveying the meaning of the statute, even if it uses slightly different words. The defendant must then knowingly, intelligently, and voluntarily waive these rights and have his confession recorded for the interview to be admissible.

Here, Harlingen Police Department officer Alicia Garcia testified at the pretrial suppression hearing that she had advised Hernandez of his rights, and that Hernandez initialized to indicate his waiver of each written right before signing the bottom of the form. The written warnings, the English translation of the warnings, and Hernandez’s video-recorded statement were admitted into evidence. However, the Spanish Miranda form included only four rights; right number (2) listed in article 38.22 was missing. The warning instead combined rights (1) and (2), removing the duplicative provision regarding the use of any statement made by the defendant against him at trial.  The Thirteenth Court noted that the Court of Criminal Appeals had held similar warnings to be sufficient under article 38.22 on three occasions: in Sosa v. State, 769 S.W.2d 909 (Tex. Crim. App. 1989), Cockrell v. State, 933 S.W.2d 73 (Tex. Crim. App. 1996), and Bible v. State, 162 S.W.3d 234 (Tex. Crim. App. 2005). Here, the relevant combined provision warned Hernandez that anything he said could be used as evidence against him in a court of justice. The court of appeals held that this was sufficient to comply with article 38.22.

Hernandez next argued that he did not knowingly, intelligently, and voluntarily waive his Miranda rights because the rights were given to him incorrectly. Specifically, Hernandez argued that the Spanish version of the Miranda warnings included the word “supracitada,” which was not a word in the Spanish language. During the pretrial hearing, the translator clarified that the document should have read “supra citada” as two separate words, meaning “aforementioned” in Spanish. Nonetheless, Hernandez argued that this error prevented the state from carrying its burden to prove a knowing, intelligent, and voluntary waiver.

The Thirteenth Court analyzed whether the defendant’s waiver of his Miranda rights was knowing, intelligent, and voluntary with a 2-pronged test: (1) whether the right was relinquished out of a free and deliberate choice rather than due to intimidation, coercion, or deception; and (2) whether the waiver was with full awareness of the nature of the rights and the consequences of waiving them.

The Thirteenth Court noted that Hernandez explicitly admitted he understood his rights and that he “want[ed] to talk.” Hernandez did not claim that the use of the word “supracitada” in any way kept him from understanding his rights. Hernandez’s waiver was thus knowingly, intelligently, and voluntarily made.

Having rejected both of Hernandez’s challenges to the trial court’s denial of his motion to suppress, the Thirteenth Court overruled the issue.

Jury Instruction

Next, Hernandez claimed that the trial court erred by denying his request for a jury instruction on the voluntariness of his confession, in violation of Texas Code of Criminal Procedure article 38.23.

Article 38.23 requires the trial court to instruct the jury to disregard evidence if the jury has a reasonable doubt that the evidence was obtained involuntarily in violation of article 38.23. To obtain this instruction, the defendant must request it with regard to a specific historical fact; he must affirmatively raise and contest the fact; and the fact must be material to the case. Here, Hernandez requested that the jury be instructed to consider whether Hernandez’s “statement was in violation of the Constitution” and to disregard the statement if they had a reasonable doubt about the alleged constitutional violation. The Thirteenth Court held that this request did not sufficiently identify a specific historical fact. Moreover, Hernandez did not affirmatively raise and contest the constitutional violation. Although Hernandez cross-examined Officer Garcia regarding the use of the word “supracitada” and the conditions of Hernandez’s confinement, Hernandez did not offer any affirmative evidence or testimony of his own establishing an alleged constitutional violation. The issue was thus overruled.  

Comment to Jury

Finally, Hernandez claimed that the trial court violated Texas Code of Criminal Procedure article 37.01 by sending the jury back to the jury room to correct the verdict form and thereby commenting on the case. The Thirteenth Court noted that article 37.01 of the Texas Code of Criminal Procedure defines a “verdict” as a written declaration of the jury’s decision. While a trial court cannot change a jury’s verdict, it has the discretion to order the jury to deliberate or correct the verdict form if the jury alerts the court that it made a mistake. Here, the jury foreman notified the court that she signed the wrong form. The trial court thus did not err by allowing the jury to correct the verdict form.

Having overruled each of Hernandez’s issues on appeal, the Thirteenth Court affirmed the trial court’s judgment.

Read the Full Opinion Here

Hidalgo County v. Herrera, No. 13-15-00167-CV (Memorandum Opinion by Chief Justice Valdez; Panel Members: Justices Benavides and Rodriguez)

In this interlocutory appeal from the trial court’s denial of a plea to the jurisdiction, the Thirteenth Court of Appeals held that Hidalgo County was immune from the plaintiffs’ suit as a matter of law.

This suit involved a high-speed police chase that resulted in the death of Reynaldo Herrera. In May 2010, Pharr Police Officer Emilio Gonzalez began chasing an Expedition driven by Rafael Carro Quintero after Quintero refused to stop for a routine traffic violation. The chase continued into the nearby city of Alamo, and Hidalgo County Deputy John Ortega joined the chase to aid Officer Gonzalez. Officer Gonzalez then decided to stop chasing Quintero, but did not notify Officer Ortega. Ortega chased Quintero down a dirt road where Quintero struck the vehicle of Reynaldo Herrera. Herrera died as a result of the accident.

Herrera’s family and estate sued Hidalgo County, claiming that Deputy Ortega’s negligence caused Herrera’s death. The County filed a plea to the jurisdiction, asserting immunity under section 101.055(2) of the Texas Tort Claims Act. The trial court denied the plea, and the County filed an interlocutory appeal.

Held: The County conclusively established that Deputy Ortega acted with the appropriate regard for the safety of others, and the Herrera family did not raise a genuine issue of material fact in response. Consequently, the County’s immunity was not waived under the Texas Tort Claims Act, and the trial court erred by denying the plea to the jurisdiction. The trial court’s order was reversed, and the case dismissed.

The Thirteenth Court began by reiterating the relevant law. The court noted that appellate courts review a ruling on a plea to the jurisdiction de novo, similar to a motion for summary judgment. The government bore the burden to negate the existence of the relevant jurisdictional facts. If the government carried its burden, the burden then shifted to the plaintiff to show a material fact issue that required resolution by a factfinder.

Regarding the Texas Tort Claims Act, the Thirteenth Court noted that the government was generally immune from negligence claims, but that such immunity was waived under section 101.055(2) if (1) the relevant death “arises from” a government employee operating a motor vehicle while responding to an “emergency situation;” and (2) the government employee either (a) violated the law applicable to such situations, or (b) demonstrated “conscious indifference or reckless disregard for the safety of others.”

The Thirteenth Court of Appeals focused on the dispositive element at issue: whether Deputy Ortega violated the law applicable to emergency situations, or exercised conscious indifference or reckless disregard for the safety of others. The court stated that Texas Transportation Code section 546.005 was the relevant law governing Deputy Ortega’s chase, and that it required Deputy Ortega to act with “appropriate regard for the safety of others.” The court noted that a high-speed chase always involves a risk of collision, and that such risk does not ipso facto constitute reckless disregard for the safety of others. Here, Deputy Ortega’s sworn affidavit described his involvement in the chase. Ortega recalled that he was alerted to the chase by dispatch, and dispatch warned that Quintero was coming into Deputy Ortega’s area of patrol at a high rate of speed, was possibly transporting drugs, and was being pursued by the Pharr Police Department. Deputy Ortega then observed the police lights and “wig wags” of the police units involved in the chase, and saw Quintero drive past him. By the time Deputy Ortega made a u-turn and began pursuing Quintero, Quintero was more than a half-mile ahead. The Deputy stopped at numerous intersections as he chased Quintero, finally coming upon the scene of the accident after it had already occurred. The affidavits of several witnesses to the accident stated that the wreck occurred at least two minutes before Deputy Ortega arrived. The Thirteenth Court held that this evidence proved that Deputy Ortega acted with the appropriate regard for the safety of others.

In response, Herrera’s family provided a report from an expert in police procedure. The expert opined that Officer Gonzalez should not have initiated the high-speed chase over a minor traffic infraction, and that Deputy Ortega demonstrated reckless disregard by joining the pursuit without knowledge of the triggering incident. The Thirteenth Court disregarded this report as conclusory, emphasizing that it did not specify the laws that Deputy Ortega allegedly disregarded or the reasons why the chase was allegedly reckless. Thus, the Thirteenth Court held that the Herrera family failed to raise a genuine issue of material fact regarding the County’s immunity.

The trial court’s judgment was reversed, and the Thirteenth Court rendered judgment dismissing the cause for want of jurisdiction.

Read the Full Opinion Here