State v. Kevin Castanedanieto ( 2019 )

Affirmed; Opinion Filed; October 3, 2019
In the
Court of Appeals
Fifth District of Texas at Dallas
No. 05-18-00870-CR
No. 05-18-00871-CR
No. 05-18-00872-CR
THE STATE OF TEXAS, Appellant
V.
KEVIN CASTANEDANIETO, Appellee
On Appeal from the Criminal District Court No. 6
Dallas County, Texas
Trial Court Cause Nos. F17-57212-X, F17-57213-X & F18-00407-X
OPINION
Before Justices Bridges, Partida-Kipness, and Carlyle
Opinion by Justice Carlyle
On the court’s own motion, we withdraw our October 2, 2019 memorandum opinion and
vacate the judgment of that date. The following is now the court’s opinion.
The State appeals the trial court’s order suppressing appellee Kevin Castanedanieto’s
statement. For the reasons that follow, we affirm.1
The law
We review a trial court’s ruling on a motion to suppress for an abuse of discretion and
apply a bifurcated standard of review. Furr v. State, 499 S.W.3d 872, 877 (Tex. Crim. App. 2016);
1
Though the State’s sole issue on appeal is multifarious, we consider it and the differing legal bases the State
offers in support. See TEX. R. APP. P. 38.9; cf. TEX. R. APP. P. 38.1(f), (i).
State v. Aguilar, 535 S.W.3d 600, 604 (Tex. App.—San Antonio 2017, no pet.). We view the
evidence in the light most favorable to the trial court’s ruling, giving almost complete deference
to the court’s determination of historical facts that the record supports, especially those based on
credibility or demeanor assessments.2 Crain v. State, 315 S.W.3d 43, 48 (Tex. Crim. App. 2010);
State v. Garcia-Cantu, 253 S.W.3d 236, 241 (Tex. Crim. App. 2008). We review with this
deference even in cases involving video evidence. Montanez v. State, 195 S.W.3d 101, 109 (Tex.
Crim. App. 2006). That is because our system does not require parties to “concentrate their
energies and resources on persuading the trial judge” only to start over on appeal, treating the trial
proceedings as a “tryout,” and requiring parties to “persuade three more judges at the appellate
level.” Id. (citing and quoting Anderson v. Bessemer City, 470 U.S. 564, 574–75 (1985)).3
We afford that same deference regarding the trial court’s “application of law to questions
of fact and to mixed questions of law and fact, if resolution of those questions depends on an
evaluation of credibility and demeanor.” Crain, 315 S.W.3d at 48. For a mixed question of law
and fact that does not depend on credibility or demeanor evaluation, we “may conduct” de novo
review. Id. “The winning side is afforded the ‘strongest legitimate view of the evidence’ as well
2
We note that, because the court granted suppression, it was not required to issue findings of fact and conclusions
of law and we need not remand for the court to take that action. See TEX. CODE CRIM. PROC. art. 38.22, § 6 (“In all
cases where a question is raised as to the voluntariness of a statement of an accused, the court must make an
independent finding . . . as to whether the statement was made under voluntary conditions.”); see also State v. Perez,
No. 14-16-00690-CR, 2017 WL 5505855, at *9 (Tex. App.—Houston [14th Dist.] Nov. 16, 2017, no pet.) (mem. op.,
not designated for publication) (concluding article 38.22 requires trial court to file findings and conclusions “only if it
decides that the statement is voluntarily made” (emphasis added)).
3
Montanez groups Carmouche v. State, 10 S.W.3d 323, 332 (Tex. Crim. App. 2000), as part of a line of cases
rendering our law “somewhat unclear as to which standard of review” applies to video evidence in motion to suppress
cases. Montanez, 195 S.W.3d at 108. The court of criminal appeals then clarified as cited above. Id. at 109.
The CCA has since cited Carmouche for part of the proposition that the dissent asserts, that we cannot ignore
indisputable video evidence. State v. Duran, 396 S.W.3d 563, 570 n.20 (Tex. Crim. App. 2013). But the CCA has also
stated that deference to the trial court is appropriate when video evidence did “not indisputably refute the trial court’s
finding.” State v. Gobert, 275 S.W.3d 888, 892 n.13 (Tex. Crim. App. 2009). In line with the CCA, we believe Duran
and Gobert can coexist and that the Gobert explanation of Montanez most closely tracks the situation in this case,
requiring us not to “second-guess the trial court’s determination of the facts.” See Duran, 396 S.W.3d at 571 n.21; see
also State v. Hummel, No. 05-11-00833-CR, 2012 WL 3553383, at *3 (Tex. App.—Dallas Aug. 17, 2012, pet. ref’d)
(not designated for publication) (affirming trial court’s grant of motion to suppress when video showed traffic stop
that was basis of arrest).
as all reasonable inferences that can be derived from it.” Duran, 396 S.W.3d at 571 & n.23 (citing
State v. Weaver, 349 S.W.3d 521, 525 (Tex. Crim. App. 2011); State v. Woodard, 341 S.W.3d 404,
410 (Tex. Crim. App. 2011)).
We review the trial court’s legal ruling de novo unless the implied factual findings
supported by the record are also dispositive of the legal ruling. State v. Kelly, 204 S.W.3d 808, 819
(Tex. Crim. App. 2008). “[T]he party with the burden of proof assumes the risk of nonpersuasion.
If this party loses in the trial court and the trial court makes no explicit fact findings, then this party
should usually lose on appeal.” Id. We must uphold the trial court’s ruling if it is supported by the
record and correct under any theory of law applicable to the case, even if the trial court gave the
wrong reason for its ruling.4 State v. Stevens, 235 S.W.3d 736, 740 (Tex. Crim. App. 2007);
Armendariz v. State, 123 S.W.3d 401, 404 (Tex. Crim. App. 2003).
The facts
Castanedanieto was eighteen years old, an immigrant from El Salvador some five years
prior, and did not graduate high school. He made two custodial post-arrest statements. He made
the first to Detective Thayer shortly after arrest, around 3:00 a.m., and made the second to
Detective Garcia the next day, around dinner time. The record includes video recordings of both
statements. The State sought to admit only the second statement.
Detective Thayer began the first interrogation by saying, “I’m working on this case . . . kind
of a mess, huh? Kind of a mess. We’ll talk about it here in a minute.” Shortly thereafter, Detective
Thayer was authoritative, using gestures as he spoke: he told Castanedanieto, “take your arms out
4
When the record is silent on the reasons for the trial court’s ruling, or when there are no explicit fact findings
and neither party timely requested findings and conclusions from the trial court, we imply the necessary factual
findings that support the trial court’s ruling if the evidence, viewed in the light most favorable to the ruling, supports
those implied findings. See Garcia-Cantu, 253 S.W.3d at 241 (citing Kelly, 204 S.W.3d at 819). The dissent seeks to
apply its interpretation of the evidence below instead of implying the necessary findings to support the trial court’s
ruling.
of your shirt . . . it’s a respect thing though, right, cause we’re gonna have a conversation and
we’re gonna be truthful with each other.”
During the first four minutes of the video, Detective Thayer asked Castanedanieto several
background questions. Thayer then read Castanedanieto his Miranda rights in English. When he
asked Castanedanieto if he understood the rights he read to him, Castanedanieto tilted his hand
back and forth. The detective asked, “A little bit?” to which Castanedanieto nodded his head and
explained that he did not speak a lot of English. When Castanedanieto indicated that he could read
Spanish, Detective Thayer had him read the Miranda card in Spanish.5
After Castanedanieto read the card out loud and was asked if he understood,
Castanedanieto, looking down at the table, moved his head slightly. The detective then asked
Castanedanieto if he was willing to talk to him, at which point he looked up at Detective Thayer
and uttered “um.” As Castanedanieto looked back down at the table, Detective Thayer continued,
saying, “to try to figure this all out.” Castanedanieto then looked up at the detective while tapping
and rubbing his cheek with his hand and said, “It’s ’cause—um—I don’t understand.” Detective
Thayer then declared, “Ok, let’s talk about what happened tonight,” to which Castanedanieto
responded, “Yes, sir.” Castanedanieto answered Detective Thayer’s questions for the next twenty-
two minutes.
The next day Detective Garcia took his turn interrogating Castanedanieto. Garcia testified
he was investigating crimes similar to those for which Castanedanieto and his cohort were arrested.
Detective Garcia went to the jail and asked Castanedanieto if he would come to police headquarters
for an interview. Castanedanieto agreed. Detective Garcia got him food from McDonald’s and
5
The dissent seems to divine meaning from the circumstances that Castanedanieto seemed to understand English
well enough before the Miranda warnings, that he spoke in English, and that his lawyer did not require an interpreter
at the suppression hearing. In doing so, the dissent steps outside the proper standard of review and works to reweigh
and recategorize the evidence before the trial court piece by piece. If that were our function here, we may well agree
with the dissent. But in this case, we must defer to the trial court’s factual conclusions to the extent they implicate
these circumstances, even if implied.
brought him back to the interrogation room, where he was allowed to eat before the detective
conducted the interrogation. They spoke in English. It is not clear what Detective Garcia knew of
Castandanieto’s prior interrogation, though he certainly knew it had occurred and that
Castanedanieto had confessed to certain things.
As the video played at the hearing, Garcia explained to the trial court that during the initial
questioning while he was trying to get to know Castanedanieto, he had no concerns about
Castanedanieto’s understanding of what he was saying and that Castanedanieto responded properly
to his questions. The video depicts Garcia asking Castanedanieto about the police in El Salvador.
Castanedanieto responded they are “not good.” Garcia then declared, “Basically, we’re gonna go
over everything that you talked about with the other detective and now that you’ve had a couple
of days to think about stuff, maybe you might remember something that you didn’t, or you might
have some questions of your own for me that I’ll try to answer.”
After Garcia finished reading Castanedanieto his Miranda rights and asked him if he
understood the rights he read to him, Castanedanieto responded “Yes” and nodded his head.
Detective Garcia also testified he did not promise Castanedanieto anything in exchange for the
statement, nor did he threaten or coerce him into giving him a statement. That said, Garcia bought
Castanedanieto McDonald’s for dinner, which was not insignificant to the eighteen-year-old.
Castanedanieto ate the food and commented that he hoped it would not prove to be his last
hamburger for awhile. Garcia attempted to downplay Castanedanieto’s concern and continued with
his interrogation.
After watching the two interrogation videos, and after hearing Garcia testify regarding his
interaction with Castanedanieto, the trial court suppressed the second video interrogation.
Application of law to facts
The State asserts in its issue that the trial court erred in suppressing Castanedanieto’s
second statement because that statement “was given knowingly, intelligently, and voluntarily,”
and Castanedanieto’s “Fifth and Sixth Amendment rights to counsel were not violated.” Based on
our abuse-of-discretion review, we conclude the trial court’s ruling is supported by the record.
The trial court could have based its suppression in part on the continued behavior of law
enforcement figures declaring to Castanedanieto that he would speak to them in the interrogation
setting. The evidence supports an inference that Detective Thayer’s declarative statements set the
tone for an expectation that Castanedanieto would speak to authorities that overbore
Castanedanieto’s will and made his statements involuntary. Thayer told Castanedanieto twice that
he would be talking to the detective and then, despite going through the motion of providing
Miranda warnings in English and Spanish, despite Castanedanieto expressing hesitation by acts
and words, failed to elicit any verbal or non-verbal assent to waiving those rights. Instead, he said,
“Ok, let’s talk about what happened tonight.” Castanedanieto responded “Yes, sir” and went on to
tell on himself extensively. The very next day, Detective Garcia came calling and, though to a
lesser extent than Thayer, he too declared to Castanedanieto that he would talk. Further, Detective
Garcia reminded Castanedanieto of his interrogation and confession the day before, suggesting he
may have more to tell the second time around. This reference to the former confession gave the
trial court sufficient basis to have concluded that Castanedanieto’s second confession was
motivated, if only in part, by so-called cat-out-of-the-bag thinking.6
6
In United States v. Bayer, 331 U.S. 532, 540–41 (1947), Justice Jackson wrote,
[A]fter an accused has once let the cat out of the bag by confessing, no matter what the inducement,
he is never thereafter free of the psychological and practical disadvantages of having confessed. He
can never get the cat back in the bag. The secret is out for good. In such a sense, a later confession
may always be looked upon as fruit of the first. But this Court has never gone so far as to hold that
making a confession under circumstances which preclude its use, perpetually disables the confessor
from making a usable one after those conditions have been removed.
The court of criminal appeals has set forth a list of factors and guiding principles to govern
courts’ analysis of the situation we have here, when a criminal defendant complains a latter
confession was tainted by a prior one. See Sterling v. State, 800 S.W.2d 513, 519–20 (Tex. Crim.
App. 1990) (factors to be considered when determining whether a former confession’s illegality
tainted a later one are: (1) whether the condition rendering the first confession inadmissible
persisted through later questioning; (2) the length of the break in time between the two confessions;
(3) whether the defendant was given renewed Miranda warnings; (4) whether the defendant
initiated the interrogation which resulted in the later confession; and (5) “any other relevant
circumstances,” including whether a magistrate warned defendant of his rights between
confessions, whether the defendant’s latter confession was motivated by earlier improper
influences brought to bear on him, whether the defendant remained in custody between the
confessions, whether the defendant conferred with counsel between confessions or requested
counsel, and whether the defendant gave the second confession when he otherwise might not have
because he had already given the first one).7
From an analytical standpoint, Sterling involved the opposite (and much more common)
procedural situation from this case—a criminal defendant’s appeal from the denial of his motion
to suppress. The CCA held the trial court’s denial of suppression of Sterling’s first confession to
be error that, upon further analysis, was harmless in light of the proper admission of his subsequent
confession. Id. at 518. The first detective in that case unquestionably misled Sterling in a way
clearly prohibited by law. Id. at 515, 518. The second detective in Sterling did not compound the
We refer to this line of cases as a potential basis for the trial court’s action, as we must in our role as an appellate
court. It is not to be read as some broadening of the cat-out-of-the-bag theory, which is distinctly cabined as a basis in
Texas law for either (1) suppression in the trial court or (2) reversing the denial of suppression.
7
The CCA borrowed this framework from the Seventh Circuit, which formulated it in response to a criminal
appellant’s complaint that, “had he known that his first confession would be suppressed he would not have made the
later incriminating statements, but having once let ‘the cat out of the bag’ remaining silent during the later interrogation
appeared to be an exercise in futility.” Holleman v. Duckworth, 700 F.2d 391, 396 (7th Cir. 1983).
error the first detective made by making similar promises to Sterling. Also, he came from a
different law enforcement agency, did not question Sterling about the prior confession, nor “did
he use this confession to elicit the latter confession from appellant.” The second detective said he
knew nothing about the earlier improper statements to Sterling. And, finally, Sterling never
invoked his Miranda rights, clearly waiving them each time he was warned. Id. at 515, 520.
Here, the trial court granted the motion to suppress. We could easily write the opinion
affirming the trial court’s action had it denied Castanedanieto’s motion to suppress. But we just as
easily affirm the grant of the motion to suppress because of the wide discretion a trial court has in
making this decision. We stress that the video is not the only piece of evidence the trial court
evaluated here. Detective Garcia testified at the hearing, providing testimony regarding his visit to
Castanedanieto at the county jail, his invitation back to police headquarters, his offer to buy
Castanedanieto dinner, and the substance of their conversation during those events. Garcia
discussed their lack of speaking any Spanish to one another, as well as his perception that
Castanedanieto knew and understood English.8 The trial court had full discretion to assess Garcia’s
credibility and to view his demeanor. And, nothing in either video goes so far as to become
“indisputable video evidence” of Castanedanieto’s voluntariness to speak, given what we infer the
8
Garcia testified, and the dissent notes, that Castanedanieto used the slang word, “strap” in place of “gun” as
some indication he was ingrained into the culture of the United States. In the procedural posture of reviewing the grant
of suppression, though we consider the use of English, we believe it is not dispositive of the State’s claim that the trial
court abused its discretion. See also note 5 supra. There is a legitimate view of the evidence supporting affirmance,
expressed by Castanedanieto’s relatively recent immigration, his education level, and his lawyer’s explanation that
this was a comprehension issue, which was borne out by Castanedanieto’s on-the-spot statement in the first interview:
“it’s ’cause—um—I don’t understand.” Separately, the trial court would not have abused its discretion to minimize
the importance of Castanedanieto using slang and conclude that the young man perhaps latched on to slang as a way
of inculcating himself into a new culture.
If, in five years after moving to a foreign country whose primary language was not one’s mother tongue, a
young man finds himself in police custody in that foreign country, we cannot say it would be unreasonable to conclude
one did not feel he fully comprehended a legal warning like the Miranda warning. The facts of this case at least allow,
though they may not demand, a conclusion that this is what courts refer to when they speak of the “compulsion inherent
in custodial surroundings.” See Miranda v. Arizona, 384 U.S. 436, 458 (1966). Nothing in this record indisputably
overcomes a conclusion that Castanedanieto felt this inherent compulsion and attempted, but was thwarted in his
attempt, to remain silent.
trial court concluded about the first confession and what it could have inferred about Garcia and
the second confession. Nothing in the second video indisputably demonstrates Castanedanieto was
not under the influence of the detectives’ declarations that he would speak to them or that he was
not motivated at least in part by cat-out-of-the-bag thinking.9
We note that in Oregon v. Elstad, the Supreme Court walked back its recognition of the
cat-out-of-the-bag theory as a basis for excluding confessions. See 470 U.S. 298, 314 (1985). The
Court in Elstad said “the mere fact that a suspect has made an unwarned admission does not
warrant a presumption of compulsion.” Id. And, administering Miranda warnings to a “suspect
who has given a voluntary but unwarned statement ordinarily should suffice to remove the
conditions that precluded admission of the earlier statement.” Id. In those circumstances, the
“finder of fact may reasonably conclude that the suspect made a rational and intelligent choice
whether to waive or invoke his rights.” Id.
But Elstad’s “may reasonably” language does not require appellate courts reviewing a
grant of suppression to reverse if the court can reweigh the facts in a way that may warrant a
conclusion that denying the motion was possible.10 Our function in this case is to review the trial
court’s actions for an abuse of discretion. We must examine the video evidence to determine if it
renders certain facts or circumstances indisputable, but are not to act as if the trial court
9
Again, we need not approve the trial court’s conclusion as the one we necessarily would have made, but cite
this path of legal analysis as a potential basis for suppressing the confession that was not an abuse of discretion. See
Stevens, 235 S.W.3d at 740 (courts of appeals may affirm for any applicable legal theory if trial court’s decision is
supported by the record); see also note 6 supra. The dissent reweighs each Sterling factor, suggesting a different
answer to the analysis. That is not our job here.
10
We note that case law suggesting limited application of a sound theory of human behavior does not render it
forever impotent. We suggest the cat-out-of-the-bag theory here only as one potential alternate basis a trial court could
have relied on in this situation where we affirm its order. Thus, in this case, we conclude the trial court did not abuse
its discretion by suppressing the second confession and that cat-out-of-the-bag thinking was an acceptable part of the
reason for that conclusion.
proceedings were just a tryout. See Montanez, 195 S.W.3d at 109 (citing and quoting Anderson,
470 U.S. at 574–75).11
On this record, we conclude the trial court did not abuse its discretion by granting
Castanedanieto’s motion to suppress his second statement. We affirm the trial court’s order.
/Cory L. Carlyle/
CORY L. CARLYLE
JUSTICE
Bridges, J., dissenting
Publish
TEX. R. APP. P. 47.2(b)
180870F.P05
11
See McPherson v. Rudman, No. 05-16-00719-CV, 2019 WL 3315453, at *3 (Tex. App.—Dallas July 24, 2019,
order) (Schenck, J., concurring on denial of en banc reconsideration) (“[W]e cannot function like an instant replay
booth.” (citing Michigan v. Lucas, 500 U.S. 145, 155 (1991) (Stevens, J., dissenting) (“We sit, not as an editorial
board of review, but rather as an appellate court. Our task is limited to reviewing ‘judgments, not opinions.’”))).
Court of Appeals
Fifth District of Texas at Dallas
JUDGMENT
THE STATE OF TEXAS, Appellant On Appeal from the Criminal District Court
No. 6, Dallas County, Texas
No. 05-18-00870-CR V. Trial Court Cause No. F17-57212-X.
Opinion delivered by Justice Carlyle,
KEVIN CASTANEDANIETO, Appellee Justices Bridges and Partida-Kipness
participating.
Based on the Court’s opinion of this date, the trial court’s order is AFFIRMED.
Judgment entered this 3rd day of October, 2019.
Court of Appeals
Fifth District of Texas at Dallas
JUDGMENT
THE STATE OF TEXAS, Appellant On Appeal from the Criminal District Court
No. 6, Dallas County, Texas
No. 05-18-00871-CR V. Trial Court Cause No. F17-57213-X.
Opinion delivered by Justice Carlyle,
KEVIN CASTANEDANIETO, Appellee Justices Bridges and Partida-Kipness
participating.
Based on the Court’s opinion of this date, the trial court’s order is AFFIRMED.
Judgment entered this 3rd day of October, 2019.
Court of Appeals
Fifth District of Texas at Dallas
JUDGMENT
THE STATE OF TEXAS, Appellant On Appeal from the Criminal District Court
No. 6, Dallas County, Texas
No. 05-18-00872-CR V. Trial Court Cause No. F18-00407-X.
Opinion delivered by Justice Carlyle,
KEVIN CASTANEDANIETO, Appellee Justices Bridges and Partida-Kipness
participating.
Based on the Court’s opinion of this date, the trial court’s order is AFFIRMED.
Judgment entered this 3rd day of October, 2019.