Jose Alvaro Perez v. State ( 2009 )

i i i i i i
MEMORANDUM OPINION
No. 04-08-00641-CR
Jose Alvaro PEREZ,
Appellant
v.
The STATE of Texas,
Appellee
From the 399th Judicial District Court, Bexar County, Texas
Trial Court No. 2006-CR-5286
Honorable Juanita Vasquez-Gardner, Judge Presiding
Opinion by: Steven C. Hilbig, Justice
Sitting: Rebecca Simmons, Justice
Steven C. Hilbig, Justice
Marialyn Barnard, Justice
Delivered and Filed: July 15, 2009
AFFIRMED
Jose Alvaro Perez was convicted of making a false report and sentenced to one year in the
Texas Department of Criminal Justice – State Jail Division and a $2,000 fine. Perez appeals the
judgment, contending the trial court abused its discretion in denying his motion to suppress and
admitting his written statement into evidence. We affirm the judgment of the trial court.
04-08-00641-CR
Perez argues admission of his statement violated his rights under the Fifth Amendment to
the United States Constitution and Miranda v. Arizona, 384 U.S. 436 (1966), because the State failed
to establish Perez was advised of his rights and waived them before police began interrogating him.
We review the trial court’s ruling for abuse of discretion. Amador v. State, 275 S.W.3d 872, 878
(Tex. Crim. App. 2009). When the trial court makes explicit fact findings, we determine whether the
evidence, viewed in the light most favorable to the trial court’s ruling, supports those findings. State
v. Kelly, 204 S.W.3d 808, 818 (Tex. Crim. App. 2006). We will uphold the trial court’s ruling if it
is reasonably supported by the record and is correct under any theory of law applicable to the case.
Ramos v. State, 245 S.W.3d 410, 417 (Tex. Crim. App. 2008). The trial court is the sole factfinder
at a suppression hearing, and it may believe or disbelieve all or any part of a witness’s testimony.
State v. Ross, 32 S.W.3d 853, 855 (Tex. Crim. App. 2000). The trial court may also make reasonable
inferences from the evidence presented. State v. Garcia-Cantu, 253 S.W.3d 236, 241 (Tex. Crim.
App. 2008); Kelly v. State, 163 S.W.3d 722, 726 (Tex. Crim. App. 2005).
The evidence before the jury established that on the evening of April 11, 2006, Officer Joe
Saldana of the San Antonio Police Department responded to a 911 call of a bomb threat at the post
office. After speaking to witnesses, Officer Saldana identified Perez as the suspect, handcuffed
Perez, and placed him in the back of a police vehicle. Officer Saldana did not interrogate Perez. The
San Antonio Police Department bomb squad and San Antonio Arson Investigator Timothy Bays
were also called to the scene. Investigator Bays, who is employed by the San Antonio Fire
Department, conducted the follow-up investigation. After the bomb squad determined the area was
safe, Investigator Bays spoke to Perez, who was in the back of a patrol car. Investigator Bays
testified:
-2-
04-08-00641-CR
I told him that I had already talked to the witnesses and that he was going to be
placed under arrest and told him he was under arrest for false alarm, false report;
gave him his Miranda warning; and asked him if he wanted to come down to the
arson office at 515 South Frio to give a statement. . . . [H]e decided to waive his
rights and come down. He talked to me there in the back of the car. I told him he
didn’t have to. And then I asked him if he wanted to go down and make a statement
and he said yes. So that’s what we did.
The court then held a brief hearing outside the presence of the jury to consider Perez’s motion to
suppress the written statement Perez gave Investigator Bays at the arson office.
During the hearing, Investigator Bays testified he “read Mr. Perez the Miranda warning from
SAPD Form 66 echo” while Perez was in the patrol car at the scene. He testified he is familiar with
the Miranda warnings and identified Form 66-E as “the Miranda warning, in English and Spanish.”
Investigator Bays stated he read Perez the Miranda warnings in English. Defense counsel’s
questioning continued:
Counsel: And to the best of your knowledge, did Mr. Perez understand
the warning?
Bays: Yes, sir.
Counsel: Did he acknowledge that understanding of the warning?
Bays: Yes, sir.
Counsel: : How did he acknowledge that?
Bays: I asked him these are your rights; do you understand them.
And he said yes.
...
I told him I didn’t think this was something he would
normally do and I asked him if he would like to come down
to the office and give a statement telling me what led up to the
actions.
Counsel: Okay. And did he consent?
-3-
04-08-00641-CR
Bays: Yes, sir.
About five minutes after this exchange between Investigator Bays and Perez, Officer Saldana drove
Perez to the arson office. Investigator Bays met with Perez in an interview room, and as Perez spoke,
Investigator Bays prepared a written statement. Perez reviewed it and made changes. This occurred
several times before Perez was satisfied and signed the statement. Investigator Bays testified he did
not read Perez his rights again after arriving at the arson office. However, the Miranda warnings are
listed on the form on which the statement was printed, and Perez read them before signing the
statement. Investigator Bays testified Perez did not indicate at any time during the interview that he
wanted to end the interview or that he wanted counsel.
The trial court found Perez was orally advised of his Miranda rights at the scene, that Perez
knowingly, intelligently, and voluntarily waived his rights, and that the written statement was
voluntarily given. The written statement was admitted into evidence. Perez contends the trial court
erred because “[t]here is nothing within the evidence to suggest what admonitions were contained
in . . . form [66-E]; the only evidence regarding the warnings Mr. Perez supposedly received is
Officer Bays’s testimony that he Mirandized Mr. Perez in accordance with Form 66E.” Perez argues
the record therefore does not support a findng that Perez was adequately advised of his rights or that
he waived them. We disagree.
Investigator Bays testified he read Perez his Miranda rights from San Antonio Police
Department Form 66-E. Investigator Bays also testified he is familiar with the Miranda warnings
and that Form 66-E contains the warnings required by Miranda. See Johnson v. State, 651 S.W.2d
303, 310 n. 3 (Tex. App.—San Antonio 1983, no pet.) (recognizing that SAPD Form 66-E contains
the Miranda warnings). The evidence and the reasonable inferences therefrom support the trial
-4-
04-08-00641-CR
court’s finding that Perez was fully and adequately advised of his Miranda rights. The evidence also
supports the trial court’s finding that Perez waived his rights after he was advised of them at the
scene and before any interrogation occurred. Accordingly, the trial court did not abuse its discretion
in admitting Perez’s written statement, and we affirm the trial court’s judgment.
Steven C. Hilbig, Justice
Do not publish
-5-