Aroldo Humberto Cadriel v. State ( 2015 )

NUMBER 13-14-00137-CR
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI - EDINBURG
AROLDO HUMBERTO CADRIEL, Appellant,
v.
THE STATE OF TEXAS, Appellee.
On appeal from the 404th District Court
of Cameron County, Texas.
MEMORANDUM OPINION
Before Justices Rodriguez, Garza, and Longoria
Memorandum Opinion by Justice Rodriguez
A jury found appellant Aroldo Humberto Cadriel guilty of murder by shooting Brisna
Mireles with a firearm.1 See TEX. PENAL CODE ANN. § 19.02(b) (West, Westlaw through
1 As this is a memorandum opinion and the parties are familiar with the facts, we will not recite
them here except as necessary to advise the parties of the Court's decision and the basic reasons for it.
See TEX. R. APP. P. 47.4.
2015 R.S.). The trial court sentenced him to life in the Texas Department of Criminal
Justice–Institutional Division. By six issues, Cadriel contends: (1) the trial court erred
in refusing to recuse or disqualify the District Attorney who magistrated Cadriel; (2) the
trial court abused its discretion when it did not, sua sponte, conduct an informal inquiry
into his competency; (3) the trial court erred in denying his motion to suppress because
probable cause to support a search warrant was based on illegal or “tainted” information;
(4) the trial court abused its discretion when it admitted the State’s ballistics expert’s
testimony because it was unreliable; (5) the trial court erred in failing to grant a mistrial
because of the “many times that defense counsel’s motion in limine was violated”; and
(6) the State violated his due process rights and the trial court erred in not granting a
mistrial when the State did not produce a video statement. We affirm.
I. RECUSAL OR DISQUALIFICATION OF THE DISTRICT ATTORNEY
By his first issue, Cadriel contends that the trial court erred when it denied his
motion to recuse or to disqualify Cameron County District Attorney Luis V. Saenz because
he “magistrated” Cadriel on the day he was arrested.2
A. Cadriel’s Motion, the State’s Response, and the Trial Court’s Ruling
In his motion to recuse or disqualify the district attorney, Cadriel set out the
following undisputed facts: (1) Cadriel was charged with a murder that occurred on or
about March 31, 2012; (2) he was arrested on April 12, 2012: (3) Cadriel was booked into
the Cameron County jail and arraigned; (4) Saenz magistrated Cadriel; and (5) after being
2 The duties of a magistrate are set out in article 15.17 of the Texas Code of Criminal Procedure.
See TEX. CODE CRIM. PROC. ANN. art 15.17 (West, Westlaw through 2015 R.S.).
2
elected District and County Attorney for Cameron County, Saenz was Cadriel’s
prosecuting attorney. Cadriel argued that Saenz should have recused himself because
“Saenz is conflicted from now prosecuting a defendant over whom he presided over [sic]
at the defendant’s magistration, as a Judge.” He also asserted that the trial court should
disqualify Saenz because he would be a material witness in his case, testifying on his
behalf regarding “(1) if the defendant was magistrated; (2) was the defendant advised of
his Miranda warning rights; (3) whether the defendant stated he understood those rights
and if it appeared that he understood those rights; (4) and any and all other matters that
may relate[ ] to defendant’s magistration.”
The State responded, arguing that Saenz “ha[d] chosen not to recuse himself or
the District Attorney’s Office” because no conflict of interest existed. And Cadriel alleged
only a perceived possibility of a conflict of interest—that Saenz was a material witness
who could be called to testify as to the magistration of Cadriel. See Gilbert McClure
Enters. v. Burnett, 735 S.W.2d 309, 311 (Tex. App.—Dallas 1987, orig. proceeding)
(stating that disqualification is not appropriate when opposing counsel merely announces
his intention to call the attorney as a fact witness; there must be a genuine need for the
attorney’s testimony that is material to the opponent’s client). The State also argued that
Cadriel presented no evidence that Saenz’s contemplated testimony on the issue of
Cadriel’s initial arraignment was necessary and that it went to an essential fact in the
case. See TEX. DISCIPLINARY R. PROF’L CONDUCT 3.08(a), reprinted in TEX. GOV’T CODE
ANN., tit. 2, subtit. G app. A (Tex. State Bar R., art. X, § 9) (providing that, with exceptions
that do not apply in this case, “[a] lawyer shall not accept or continue employment as an
3
advocate before a tribunal in a contemplated or pending adjudicatory proceeding if the
lawyer knows or believes that the lawyer is or may be a witness necessary to establish
an essential fact on behalf of the lawyer's client”). Finally, the State agreed to stipulate
to the following: (1) Saenz magistrated Cadriel; (2) Cadriel was advised of his rights; (3)
Cadriel did not make any statement of which the State was aware either during the initial
arraignment hearing before the magistrate or since magistration; and (4) the hearing was
estimated to have taken no more than three or four minutes.
After hearing the parties’ arguments, the trial court denied Cadriel’s motion.
However, because the ruling allowed for the Cameron County District Attorney’s
continued prosecution of Cadriel, the trial court informed Cadriel that it “left the door open”
should he feel compelled to reurge recusal or disqualification. Cadriel did not reurge his
motion during the trial, and neither the State nor Cadriel called Saenz as a witness.
B. Applicable Law and Standard of Review
“[T]he district attorney must initiate his own recusal.” State of Tex. ex rel. Hill v.
Pirtle, 887 S.W.2d 921, 939 (Tex. Crim. App. 1994) (en banc). “A prosecutor's refusal to
recuse himself from the case cannot be corrected because the trial court has no authority
to force a recusal.” Johnson v. State, 169 S.W.3d 223, 229 (Tex. Crim. App. 2005).
However, when a prosecutor refuses to voluntarily recuse himself, the trial court may
disqualify the prosecutor, but only when the disqualification is based on a conflict of
interest that rises to the level of a due-process violation. State ex rel. Young v. Sixth
Judicial Dist. Court of Appeals at Texarkana, 236 S.W.3d 207, 211 n.15 (Tex. Crim. App.
2007) (orig. proceeding); Pirtle, 887 S.W.2d at 927 (same). Reflective of such conflicts
4
are certain statutory provisions under which the trial court can disqualify the prosecutor.
For example, the court may disqualify the prosecutor for being previously employed
adversely to the State in the pending matter. See TEX. CODE CRIM. PROC. ANN. art. 2.01
(West, Westlaw through 2015 R.S.); Landers v. State, 256 S.W.3d 295, 297–310 (Tex.
Crim. App. 2008) (concluding that the trial court did not abuse its discretion when it denied
the defense’s motion to disqualify a prosecutor who had represented the defendant in a
prior alcohol-related offense that was similar to, but not the same, as the pending charge).
And it may disqualify the prosecutor for instances of incompetency, official misconduct,
or intoxication. See TEX. LOC. GOV’T CODE ANN. § 87.013 (West, Westlaw through 2015
R.S.).
Disqualification of counsel is a severe remedy. See Spears v. Fourth Court of
Appeals, 797 S.W.2d 654, 656 (Tex. 1990) (orig. proceeding). In order to prevent such
misuse of the rule as a dilatory trial tactic, the trial court should require the party seeking
disqualification to demonstrate actual prejudice to himself resulting from the opposing
lawyer’s service in the dual roles. See id.; Ayres v. Canales, 790 S.W.2d 554, 558 (Tex.
1990) (orig. proceeding) (citing TEX. DISCIPLINARY R. PROF’L CONDUCT 3.08 cmt. 10).
We review the trial court’s decision of whether to disqualify a prosecutor for an
abuse of discretion. Landers, 256 S.W.3d at 303. Under that analysis, the trial court
abuses its discretion only when the decision lies “outside the zone of reasonable
disagreement.” Id.
5
C. Discussion
In sum, Cadriel argues that Saenz should have recused himself and that the trial
court should have disqualified Saenz because (1) Saenz, as magistrate, and Saenz, as
prosecutor, creates a conflict, and (2) being the magistrate made Saenz a witness in this
case. We disagree.
Cadriel has not shown actual prejudice from an alleged disciplinary rule violation
or any violation of his due-process rights by Saenz serving in dual roles—as his
magistrate and then as the prosecuting attorney in this case. See Spears, 797 S.W.2d
at 656; Ayres, 790 S.W.2d at 558; see also TEX. DISCIPLINARY R. PROF’L CONDUCT 3.08
cmt. 10. The record does not reveal a conflict of interest, if any, that rises to the level of
a due-process violation. See Young, 236 S.W.3d at 211 n.15; Pirtle, 887 S.W.2d at 927
(same). Instead, we agree with the State and conclude that no conflict of interest exists.
A perceived or potential conflict is not enough. See Gilbert McClure Enters., 735 S.W.2d
at 311. And no statutory grounds for disqualification were shown. Finally, there is no
factual basis for a disqualification. Cadriel provides no record citations, and we find
none, where the jury heard evidence or even argument concerning Saenz’s role as
magistrate. Saenz did not testify as a witness; neither the State nor Cadriel called him
to testify. Cadriel presented no evidence that Saenz’s contemplated testimony on
Cadriel’s initial arraignment was necessary or that it was material and went to an essential
fact in this case. See TEX. DISCIPLINARY R. PROF’L CONDUCT 3.08(a). Moreover, Cadriel
provides no citations to the record, and we find none, to indicate that he made any
statement during the initial arraignment hearing that was later used against him at trial.
6
And, among other things, the State stipulated that Cadriel made no statements at the
arraignment or subsequent to it.
Based on the above, the trial court’s decision did not lie outside the zone of
reasonable disagreement, and so we conclude that the trial court did not abuse its
discretion. See Landers, 256 S.W.3d at 303. We overrule Cadriel’s first issue.
II. INFORMAL INQUIRY INTO CADRIEL’S COMPETENCY
Cadriel argues by his second issue that the trial court abused its discretion by
failing to conduct, sua sponte, an informal inquiry to determine whether evidence existed
to justify a formal competency trial. In response, the State asserts that the trial court
conducted an informal competency inquiry, and therefore, the trial court did not abuse its
discretion. We agree with the State.
A. Standard of Review and Applicable Law
This Court reviews a trial court’s decision regarding an informal competency
inquiry for an abuse of discretion. Montoya v. State, 291 S.W.3d 420, 426 (Tex. Crim.
App. 2009), superseded by statute on other grounds as stated in Turner v. State, 422
S.W.3d 676, 692 n.31 (Tex. Crim. App. 2013); Jackson v. State, 391 S.W.3d 139, 141
(Tex. App.—Texarkana 2012, no pet.); see also Luna v. State, 268 S.W.3d 594, 600 (Tex.
Crim. App. 2008). A “person is incompetent to stand trial if the person does not have:
(1) sufficient present ability to consult with the person's lawyer with a reasonable degree
of rational understanding; or (2) a rational as well as factual understanding of the
proceedings against the person.” TEX. CODE CRIM. PROC. ANN. art. 46B.003(a) (West,
Westlaw through 2015 R.S.). “On suggestion that the defendant may be incompetent to
7
stand trial, the court shall determine by informal inquiry whether there is some evidence
from any source that would support a finding that the defendant may be incompetent to
stand trial.” Id. art. 46B.004(c) (West, Westlaw through 2015 R.S.). Under the present
statute, “[a] suggestion of incompetency is the threshold requirement for an informal
inquiry” regarding competency. Id. art. 46B.004(c–1); see Turner, 422 S.W.3d at 692.
An informal inquiry does not have to be exhaustive. It may be satisfied when the
trial court poses simple questions to the defendant and/or defense counsel regarding the
defendant’s competency. See generally Luna, 268 S.W.3d at 598–600; Jackson, 391
S.W.3d at 142; Gray v. State, 257 S.W.3d 825, 829 (Tex. App.—Texarkana 2008, pet.
ref’d); see also Stevenson v. State, No. 05-12-01668-CR, 2014 WL 3555767, at *2 (Tex.
App.—Dallas July 17, 2014, pet. ref’d) (not designated for publication); Coyt-Sowells v.
State, No. 14–11–00986–CR, 2013 WL 1499579, at *1 (Tex. App.—Houston [14th Dist.]
Apr. 11, 2013, no pet.) (mem. op., not designated for publication).
B. Discussion
The record in this case shows Cadriel’s trial counsel asked to make a record with
Cadriel at a pre-trial status hearing. The trial court granted his request. Through
counsel’s questions and Cadriel’s answers, counsel brought to the trial court’s attention
a disagreement he and Cadriel had regarding counsel’s desire to request two expert
witnesses, one to investigate the possibility of an insanity defense and another to
investigate issues related to ballistics. Cadriel agreed with counsel that he suffered from
post-traumatic stress disorder and had been diagnosed with “some bipolar issues.”
However, when asked if he wished to raise “any kind of an insanity defense, not
8
competent to stand trial defense,” or “any kind of diminished capacity” defense, Cadriel
responded, “No.” Cadriel agreed that he made the decision freely and voluntarily and
without pressure. After testifying that he understood that the State would be asked to
absorb the cost of any defense expert, Cadriel again agreed that he did not want to raise
any type of “mental defense.”
Counsel also asked questions of Cadriel about the report prepared by the State’s
ballistics expert, which concluded that the ballistics tool marking on a fragment of a bullet
recovered from the victim matched that of a bullet fired from a handgun attributed to
Cadriel. When asked whether he wanted to hire a defense expert to controvert this
evidence, Cadriel testified that he wanted “[t]o move on with the trial and not to hire no
one.” According to his testimony, no one pressured or forced him to make that decision.
Although counsel told Cadriel that, without such an expert, it would be hard to controvert
the State’s evidence, he remained firm in his decision.
After defense counsel concluded his questioning, the trial court posed a series of
background questions to Cadriel regarding his incarceration, employment history,
income, education, and military experience. The trial court also discussed with Cadriel
the importance of matters raised by counsel, including the ballistics and mental
competency issues. Cadriel informed the trial court that he based his decision regarding
the ballistics expert on more than finances and testified, “there are about three issues
pertaining to that. . . . I want to just move on.” When the trial court explained to Cadriel
that his counsel was also suggesting that the court might want some analysis or testing
of Cadriel’s mental competence and asked Cadriel if he was saying he did not want to
9
pursue that, he answered, “Yes, Your Honor. That’s my—that’s my answer and there
are several reasons behind it.”
Because Cadriel referenced reasons or issues supporting his answers, the trial
court asked Cadriel’s counsel to talk with Cadriel in private. The court explained that this
would give Cadriel an opportunity to discuss those matters with his attorney. Following
an off-the-record conference with his client, counsel reported the following to the court:
“In speaking with Mr. Cadriel privately in the jury room, Your Honor, with respect to
ballistics, requesting our ballistics expert and any kind of a psychiatric expert, Mr. Cadriel
continues to insist he does not want either, he wants to proceed forward to trial as soon
as possible.”
We conclude that the questions asked of Cadriel were sufficient to constitute an
informal inquiry into Cadriel’s competence. See Luna, 268 S.W.3d at 598–600; Jackson,
391 S.W.3d at 142; Gray, 257 S.W.3d at 829. And, after Cadriel had testified, the trial
court specifically gave defense counsel an opportunity to privately discuss with Cadriel
his understanding of these matters and his desires. Under these circumstances, the trial
court's own observations coupled with its questions to Cadriel and to counsel that related
to Cadriel’s competency satisfied the requirement of an informal inquiry.3 The court did
not abuse its discretion in doing so. See Montoya, 291 S.W.3d at 426. We overrule
Cadriel’s second issue.
3
By his second issue, Cadriel complains only that the trial court failed to conduct an informal
inquiry. He does not complain in the alternative that if we find the trial court conducted an informal inquiry
it should have further conducted a formal inquiry pursuant to article 46B.005. See TEX. CODE CRIM. PROC.
ANN. art. 46B.005(a) (West, Westlaw through 2015 R.S.). So that issue is not before the Court. See TEX.
R. APP. P. 47.1.
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III. MOTION TO SUPPRESS
By his third issue, Cadriel contends that the trial court erred in denying his motion
to suppress evidence seized from his home because probable cause for the search
warrant was based on his illegally seized phone records. Cadriel alleges that Special
Agent Luther Selby with ICE-Homeland Security Investigations violated section 2702 of
the Stored Communications Act (SCA) by requesting the cell phone records without first
obtaining a court order or a warrant authorizing the pinging. See 18 U.S.C.A. § 2702(a–
c) (prohibiting providers from voluntarily disclosing customer records to a governmental
entity unless an exception applies). Cadriel contends that the officers were able to
determine his whereabouts on the day of the murder through the illegally obtained cell
phone records and then included that information in the affidavit used to obtain the search
warrant for his residence. Cadriel asserts, that while the cell phone records were not
admitted as evidence, what was found in his home during that search and what was
admitted as evidence at trial “were the guns seized, one of which was claimed to be the
weapon which fired bullet 18A, one of five bullets found in the victim’s body.” It is the
admission of this evidence that Cadriel attempted to suppress.
A. Standard of Review and Applicable Law
We review a trial court's ruling on a motion to suppress under a bifurcated
standard. Hubert v. State, 312 S.W.3d 554, 559 (Tex. Crim. App. 2010); Shepherd v.
State, 273 S.W.3d 681, 684 (Tex. Crim. App. 2008); Carmouche v. State, 10 S.W.3d 323,
327 (Tex. Crim. App. 2000). We give the trial court almost complete deference in its
determination of historical facts, especially if they are based on an assessment of
11
credibility and demeanor. Crain v. State, 315 S.W.3d 43, 48 (Tex. Crim. App. 2010).
We afford the trial court the same deference in its rulings on the application of the 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. Id. However, for mixed
questions of law and fact that do not fall within that category, a reviewing court conducts
a de novo review. Id.
We view all of the evidence in the light most favorable to the trial court's ruling.
State v. Castleberry, 332 S.W.3d 460, 465 (Tex. Crim. App. 2011). Therefore, the
prevailing party is entitled to “the strongest legitimate view of the evidence and all
reasonable inferences that may be drawn from that evidence.” Id. Since all evidence
is viewed in the light most favorable to the trial court's ruling, we are obligated to uphold
its ruling on a motion to suppress if that ruling is supported by the record and is correct
under any theory of law applicable to the case. State v. Ross, 32 S.W.3d 853, 856 (Tex.
Crim. App. 2000) (en banc); Carmouche, 10 S.W.3d at 327; State v. Ballard, 987 S.W.2d
889, 891 (Tex. Crim. App. 1999).
“Probable cause exists where, under the totality of the circumstances, there is a
fair probability that contraband or evidence of a crime will be found at the specified
location.” Rodriguez v. State, 232 S.W.3d 55, 60 (Tex. Crim. App. 2007) (citing Illinois
v. Gates, 462 U.S. 213, 238 (1983)). When reviewing whether an affidavit for a warrant
provided a basis for finding probable cause, this Court does not consider each fact in
isolation; rather, we must consider the totality of the circumstances. Illinois v. Gates, 462
U.S. 213, 238–39 (1983) (reaffirming “the totality-of-the-circumstances analysis,” and
12
setting out that “the duty of a reviewing court is simply to ensure that the magistrate had
a ‘substantial basis for . . . conclud[ing]’ that probable cause existed”); Rodriguez, 232
S.W.3d at 59–60. While a warrant may not be issued if it is based on illegally obtained
information, “tainted” information will not invalidate an otherwise valid warrant. State v.
Bridges, 977 S.W.2d 628, 632 (Tex. App.—Houston [14th Dist.] 1998, no pet.) (“The
relevant inquiry into probable cause based upon a tainted affidavit is to put aside the
tainted allegations and determine whether the independently acquired and lawful
information clearly established probable cause.”); see Castillo v. State, 818 S.W.2d 803,
805 (Tex. Crim. App. 1991) (“[I]f the tainted information was clearly unnecessary to
establish probable cause for the search warrant, then the defendant could not have been
harmed by the inclusion of the tainted information in the affidavit.”); see also Gates, 462
U.S. at 238.
B. Discussion
It is undisputed that Agent Selby did not obtain a warrant or court order to get
Cadriel’s cell phone records. The evidence shows that the provider voluntarily gave this
information to law enforcement, upon the representation that exigent circumstances
existed. See 18 U.S.C.A. § 2702(b)(7)–(8) (setting out that one of the exceptions for
disclosure of communications is exigent circumstances). Yet, even were we to conclude
that exigent circumstances did not exist, that Agent Selby obtained the phone records in
violation of section 2702 of the SCA, and that, because of the violation, the evidence was
improperly obtained, we would still conclude that the trial court did not abuse its discretion
in denying Cadriel’s motion to suppress.
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The affidavit signed by Police Chief Patrick Quill and filed in support of the search
warrant follows in its entirety:
On March 31, 2012, at approximately 8:10 a.m. the body of Brisna
Mireles was discovered on the eastside of Northbound Frontage Road U.S.
77, in the Town of Combes, Texas. An autopsy of the body of Brisna
Mireles revealed the causes of her death to be two gunshot wounds to her
head, a gunshot wound to her back, a gunshot wound to her right shoulder
area, and a gunshot wound to her pelvic area. The recovery of three
projectiles from Brisna Mireles and the recovery of one projectile found in
the ground within close proximity of her body provide evidence that
someone likely killed her. The murder of Brisna Mireles is presently under
investigation by affiant.
On March 31, 2012, while processing the crime scene, a key to a
hotel room identified as Hudson House Hotel, located in Harlingen, Texas,
was discovered a few inches from Brisna Mireles’ body. Combes Police
Investigator Ricardo Herrera found that the key was registered to room #52
of the Hudson House Hotel, which was found to be registered to a male
subject identified as Robert Castillo.
Shortly thereafter affiant made contact with family members of Brisna
Mireles who stated that she was last seen with a male subject identified as
an uncle, AKA “Randy”. A family member provided the cellular telephone
number . . . which Brisna Mireles was known to contact “Randy”. The
family member provided a physical description of “Randy” stating he was a
male subject in his late 50s, gray hair and gray beard. This was the same
physical description as provided by the hotel manager of the Hudson House
Hotel of the male subject registered to room #52. A preliminary check of
the telephone number identified as “Randy’s” revealed that the telephone
number belonged to the suspected party identified as Aroldo Humberto
Cadriel date of birth 09/16/1946. Once the telephone number was
identified as belonging to Aroldo H Cadriel, a photo lineup was prepared
and shown to witnesses present at the Hudson House Hotel as well as
several associates and family members of Brisna Mireles. Witnesses at the
Hudson House Hotel identified Aroldo H. Cadriel as the individual registered
to room #52 under the name Robert Castillo. Associates and family
members of Brisna Mireles all identified the individual as the person known
as “Randy” and numerous associates of Brisna Mireles stated that this was
not a blood relative of Brisna Mireles but an individual that had a long-
standing sexual relationship for which Brisna Mireles received monetary
compensation.
14
Texas Ranger Mike Ramirez made contact via telephone with Aroldo
H. Cadriel. Aroldo H. Cadriel met with Ranger Ramirez and affiant and
stated that he had been with Brisna Mireles on March 30, 2012 for a short
time, and then dropped her off at her residence in Harlingen, Texas.
Aroldo H. Cadriel then stated that once Brisna Mireles was returned to her
residence he returned to his residence located at 4 Crownridge Drive in
Brownsville, Texas and went to sleep. Aroldo H. Cadriel stated that he did
not remain in Harlingen, Texas and that he had not rented any hotel rooms
in the Harlingen area on March 30, 2012. A short time later Ranger
Ramirez and affiant met with a witness identified as Jacob Vento who stated
that on March 30, 2012, at approximately 10:00 p.m. Brisna Mireles had
called him to pick her up at the Hudson House Hotel. Jacob Vento stated
to Ranger Ramirez and affiant that when he arrived at the hotel he found
Brisna Mireles outside the hotel and was escorting her to his vehicle when
he was confronted by Aroldo H. Cadriel in a threatening manner. Jacob
Vento stated that Aroldo H. Cadriel displayed a handgun and placed the
firearm against Jacob Vento’s torso and told him to leave the area
immediately. Jacob Vento stated that both he and Brisna Mireles ran away
from Aroldo H. Cadriel and fled the area in Jacob Vento’s vehicle.
On March 31, 2012, Ranger Ramirez interviewed a male subject
identified as Frank Muniz who stated that he met with Brisna Mireles and a
male subject who he identified through a photo lineup as being Aroldo H.
Cadriel at 2:30 a.m. on March 31, 2012 and provided drugs to them. Frank
Muniz stated that Aroldo H. Cadriel and Brisna Mireles were in a large white
Ford pickup truck, which matched the description by previous witnesses as
being used by Aroldo H. Cadriel. A review of telephone tolls place Aroldo
H. Cadriel in the Harlingen, Texas area beyond 4:00 a.m. March 31, 2012
rather than at his residence in Brownsville, Texas as he had previously
stated.
Affiant believes that the foregoing facts establish probable cause to
believe that the offense of murder was committed on the eastside of
Northbound Frontage Road U.S. 77, in the Town of Combes, Texas on or
about the 31st day of March 2012.
(Italics added.) The italicized portion of the affidavit represents information obtained
from phone records that Cadriel claims were illegally obtained.
Our review of the affidavit reveals that Quill did reference information obtained from
Cadriel’s cell phone records, which we assume for purposes of this analysis to be illegally
15
obtained or tainted information. Nonetheless, we will “set aside the tainted allegations
and determine whether the independently acquired and lawful” information established
probable cause. Bridges, 977 S.W.2d at 632.
Based on our de novo review of this issue, which involves mixed questions of law
and fact, see Crain, 315 S.W.3d at 48, we cannot conclude that the tainted information
was necessary to establish probable cause for the search warrant. See Castillo, 818
S.W.2d at 805. Instead, the affidavit referenced additional facts that were otherwise
sufficient to establish probable cause. See id. The affidavit set out that Mireles’s body
was found on March 31, 2012, at approximately 8:10 a.m. Cadriel’s hotel room key was
located inches from Mireles’s body. Cadriel had a sexual relationship with Mireles.
And the night before the shooting, Mireles and another party were in front of Cadriel’s
hotel when Cadriel arrived. Cadriel was acting in a threatening manner and had a gun.
Mireles and the other person ran from Cadriel. A second individual reported meeting
with Cadriel and Mireles at 2:00 a.m. on the morning of the shooting and providing them
with drugs. Cadriel and Mireles had been in a Ford truck that Cadriel used.
Putting aside the allegedly tainted information from the phone records, the
independently acquired and lawful information clearly established probable cause for the
search warrant. See Bridges, 977 S.W.2d at 632. The affidavit contained sufficient
information, other than Cadriel’s “tainted” cell phone records, for the trial court to find a
“fair probability,” Rodriguez, 232 S.W.3d at 60, that Cadriel had committed the murder of
Brisna Mireles and that evidence of the murder would be found in Cadriel’s residence.
We conclude that the record supports the trial court’s ruling, and the ruling is correct under
16
a theory of law applicable to this case. See Ross, 32 S.W.3d at 856; Carmouche, 10
S.W.3d at 327; Ballard, 987 S.W.2d at 891. The trial court did not err in denying Cadriel’s
motion to suppress. We overrule Cadriel’s third issue.
IV. ADMISSION OF THE Testimony of State’s Ballistics Expert Richard Hitchcox
Cadriel describes his fourth issue as a sufficiency challenge. But his argument is
that the trial court abused its discretion in allowing Richard Hitchcox, the State’s forensic
tool-mark expert, to testify. Cadriel asserts that systemic scientific problems in the field
of tool-mark and firearms identification made Hitchcox’s testimony unreliable. Because
of these problems, Cadriel claims that Hitchcox could not conclusively determine whether
the bullets and guns he examined were in fact the bullets and guns used in the shooting.
Cadriel then contends that without Hitchcox’s testimony, the evidence is insufficient to
convict. The State responds that Cadriel failed to preserve a challenge to the reliability
of Hitchcox’s techniques for appellate review.4
A. Applicable Law
To preserve a complaint for appellate review, the record must show that a specific
and timely objection was made to the trial judge and that the trial judge ruled on the
objection. TEX. R. APP. P. 33.1(a); see Martinez v. State, 98 S.W.3d 189, 193 (Tex. Crim.
App. 2003). “The complaining party must let the trial judge know what she wants and
why she thinks she is entitled to it, and do so clearly enough for the judge to understand
4 We note that “an appellate court must consider all evidence actually admitted at trial in its
sufficiency review . . . . ‘[A]n appellant . . . is not entitled to have an appellate court first consider the
appellant’s complaints concerning improper admitted evidence and, if it resolves any of those in favor of
the appellant, to then, second, consider the sufficiency of the properly-admitted evidence to support the
conviction.’” Moff v. State, 131 S.W.3d 485, 489–90 (Tex. Crim. App. 2004) (quoting George E. Dix and
Robert O. Dawson in 43A Texas Practice, Criminal Practice and Procedures § 43.531 at 742 (2d ed. 2001)).
17
and at a time when the trial court is in a position to do something about it.” Bekendam
v. State, 441 S.W.3d 295, 300 (Tex. Crim. App. 2014) (citing Lankston v. State, 827
S.W.2d 907, 909 (Tex. Crim. App. 1992) (en banc)). A defendant who fails to preserve
error regarding the admissibility of evidence waives his complaint on appeal. Amspacher
v. State, 311 S.W.3d 564, 572 (Tex. App.—Waco 2009, no pet.). A reviewing court
should not address the merits of an issue that has not been preserved for appeal. Ford
v. State, 305 S.W.3d 530, 532 (Tex. Crim. App. 2009).
B. Discussion
At trial, Cadriel did not challenge the reliability of this expert’s testimony in the field
of tool-mark and firearms identification. Cadriel directs us to no specific and timely
objection in the record, and we find none. See TEX. R. APP. P. 33.1(a); Martinez, 98
S.W.3d at 193. Moreover, Cadriel had the opportunity to cross-examine Hitchcox
regarding his testing protocol, his results, and the reliability of those results. But Cadriel
did not object to Hitchcox’s testimony on the basis that it was unreliable. He did not let
the trial judge know what he wanted and why, at a time when the trial court was in a
position to do something about it. See Bekendam, 441 S.W.3d at 300. We conclude
that Cadriel failed to preserve error regarding the reliability of this evidence. We overrule
this fourth issue.
V. MOTION IN LIMINE
By his fifth issue, Cadriel complains that the trial court erred in failing to grant a
18
mistrial because of repeated violations of an order in limine.5 Cadriel complains of two
separate instances of conduct, which he alleges violated the order in limine.
First, Cadriel complains of the State’s conduct related to a statement made by
Jovonnie Quiroz, one of the State’s witnesses. Quiroz testified that, about one month
before the murder, he saw Cadriel and that Cadriel “had a gun on him, and a 12-guage,
too.” Cadriel objected that the State’s conduct in eliciting this testimony violated the
order in limine because it presented evidence of an extraneous bad act. The trial court
inquired of Cadriel’s trial counsel how the mere possession of a pistol and a shotgun was
a bad act, and counsel responded that it imputed incidents with firearms. The trial court
found that the State’s conduct did not violate the order in limine and overruled Cadriel’s
objection.
The second incident involved the testimony of Police Chief Quill. He testified that
during his continuing investigation of the murder, he went to Brownsville and met with a
Brownsville Police Department officer at a location just west of Cadriel’s residence.
When the State asked Quill what was the “point of that meeting,” he responded, “Mr.
Cadriel was firing a weapon in his backyard.” Cadriel objected that “this is going outside
of the motion.” After the trial court sustained the objection, it explained that while Quill’s
5 Cadriel filed pre-trial motions in limine seeking, among other things, a bench conference before
the introduction of evidence of prior bad acts. Relevant language from Cadriel’s motion in limine filed on
September 9, 2013, follows:
Any specific prior acts or misconduct of the defendant [shall] not be inquired into until the
proper predicate has been established out of the presence of the jury, to include, but not
limited to any prior arrests or convictions, specifically, but not limited to an arrest for
discharging a firearm within city limits. . . .
The trial court granted this motion, rendering an order in limine.
19
response violated the order in limine, the testimony was unresponsive6 and found that
the State did not “intentionally [seek] to inject any offensive response by Chief Quill.”
Cadriel requested an instruction, and the trial court instructed the jury that the witness’s
last answer was nonresponsive. The trial court denied Cadriel’s motion for mistrial.
A. Applicable Law
A mistrial is appropriate only when the improper conduct was “so prejudicial that
expenditure of further time and expense would be wasteful and futile.” Hawkins v. State,
135 S.W.3d 72, 77 (Tex. Crim. App. 2004) (en banc) (citation omitted). A mistrial is
required only in extreme circumstances when the prejudice is incurable. Id.
B. Standard of Review
Whether a mistrial was warranted lies within the trial court’s discretion, and the
appellate court reviewing that decision for an abuse of discretion will only reverse if the
trial court’s ruling lies outside the zone of reasonable disagreement. Archie v. State, 221
S.W.3d 695, 699 (Tex. Crim. App. 2007). In determining whether the trial court abused
its discretion by denying a motion for mistrial, the reviewing court should consider the
severity of the misconduct, i.e., the magnitude of the prejudicial effect, the measures
adopted to cure the misconduct, and the certainty of conviction absent the misconduct.
Id. at 700; Hawkins, 135 S.W.3d at 77.
C. Discussion
In this case, we cannot say that the circumstances were so extreme that any
prejudice was incurable. Considering the severity of the State’s conduct in the first
6
The trial court explained that the response was not responsive because it addressed what Cadriel
was doing instead of “the point of the meeting.”
20
instance, the trial court concluded that its conduct was not improper. The court inquired
how the mere possession of a pistol and a shotgun could be a bad act such that the
State’s conduct in eliciting this testimony violated the order in limine. Reasoning that it
could not, the court overruled Cadriel’s objection to this testimony. In the second
instance, the trial court determined that the State did not solicit Quill’s reference to
Cadriel’s firing a gun and that it did not pose an offending question in an effort to elicit the
testimony. In other words, there is no showing that the State’s conduct was improper in
the first instance or that it was intentional in the second instance. See Archie, 221
S.W.3d at 700. Also, the trial court instructed the jury to disregard Quill’s answer—that
Cadriel was shooting a weapon in his yard—as nonresponsive. “Instructions to the jury
are generally considered sufficient to cure improprieties that occur during trial.” Gamboa
v. State, 296 S.W.3d 574, 580 (Tex. Crim. App. 2009). And we must presume that the
jury followed the trial court’s admonishment. See Waldo v. State, 746 S.W.2d 750, 754
(Tex. Crim. App. 1988). So the trial court adopted measures, which we consider
sufficient, to cure this misconduct. See Archie, 221 S.W.3d at 700.
Finally, even absent the complained-of conduct, after reviewing the record, we
conclude that it is likely that a guilty verdict would have been obtained. Taking into
account all of the evidence, we can see no significant likelihood that Cadriel would have
been found not guilty if the questions had never been asked. See id. We conclude that
the trial court did not abuse its discretion in denying the requested mistrial. We overrule
Cadriel’s fifth issue.
21
VI. VIDEO STATEMENT OF ALICIA MIRELES
In his sixth issue, Cadriel argues that the State violated his constitutional rights to
due process when he was tried after the alleged destruction of exculpatory evidence—
the video statement of Alicia Mireles (Ms. Mireles), the victim’s mother. 7 In the
alternative, Cadriel contends that the trial court erred in refusing to strike Ms. Mireles’s
testimony and to grant a mistrial because the State failed to produce the video statement
after her direct examination. See TEX. R. EVID. 615.
A. Due-Process Claim
The duty to preserve evidence is limited to the evidence that possesses an
exculpatory value that was apparent before the evidence was destroyed. California v.
Trombetta, 467 U.S. 479, 488 (1984). In order to establish a due process claim, a
defendant must make some showing that the lost evidence was favorable and material to
his defense. United States v. Valenzuela-Bernal, 458 U.S. 858, 873 (1982); Nastu v.
State, 589 S.W.2d 434, 441 (Tex. Crim. App. 1979). And a criminal defendant must
show bad faith on the part of the police or the prosecution, in this case, to establish that
failure to preserve potentially useful evidence constitutes a denial of due process. See
Arizona v. Youngblood, 488 U.S. 51, 58 (1988); Penix v. State, 488 S.W.2d 86, 89 (Tex.
Crim. App. 1972).
1. No Showing That the Video Statement Was Exculpatory or Favorable,
and Material
Cadriel argues that if the video statement could have been examined and if it was
7During Ms. Mireles’s cross-examination, the video statement was described as being taken by
Texas Ranger Mike Ramirez twenty-three days after the shooting.
22
determined that there were inconsistencies between Ms. Mireles’s video statement and
her testimony at trial, then her credibility might have been impeached. But a showing
that the video statement might have been favorable and material does not meet the
standard; instead, Cadriel must make an affirmative showing that the evidence was
favorable and material. See Hebert v. State, 836 S.W.2d 252, 254 (Tex. App.—Houston
[1st Dist.] 1992, pet. ref’d) (op. on reh’g); Gamboa v. State, 774 S.W.2d 111, 112 (Tex.
App.—Fort Worth 1989, pet. ref’d). In addition, sources of comparable evidence—Ms.
Mireles and Ranger Ramirez, who took the video statement—were available for
questioning on the circumstances and substance of the video statement. See Hebert,
836 S.W.2d at 254. Cadriel cross-examined Ms. Mireles. He also received a copy of
Ranger Ramirez’s written notes of his interview with Ms. Mireles. Yet we find nowhere
in the record that the lost evidence was exculpatory or favorable and material. See
Valenzuela-Bernal, 458 U.S. at 873; Nastu, 589 S.W.2d at 441. So we conclude that
Cadriel failed to meet his burden of affirmatively showing that the video statement was
either exculpatory or favorable and material. See Hebert, 836 S.W.2d at 254; Gamboa,
774 S.W.2d at 112.
2. No Showing that the State Acted in Bad Faith
Regarding bad faith, the record is also devoid of any fact showing bad faith on the
part of the State, Ranger Ramirez, or the police. See Youngblood, 488 U.S. at 58; Penix,
488 S.W.2d at 89. Instead, the record shows that the State was not aware of any video
statement. In addition, the record shows that neither Ranger Ramirez nor the police
knew what happened to the video statement. And a showing of negligence on the part
23
of the police or the government is not equivalent to bad faith. See Saldana v. State, 783
S.W.2d 22, 24 (Tex. App.—Austin 1990, no pet.) (per curiam); see also United States v.
Kennedy, 714 F.2d 968, 975 (9th Cir. 1983). We conclude that Cadriel has not shown
that the State acted in bad faith.
B. Rule 615 Claim
In the alternative, Cadriel contends that the trial court improperly refused to strike
Ms. Mireles’s testimony or to grant a mistrial. See TEX. R. EVID. 615. We disagree.
On cross-examination, Cadriel asked Ms. Mireles if she had made a statement to
law enforcement, and she responded, “Yes.” Cadriel asked the State to tender the
statement to defense counsel. Later, at a hearing outside the presence of the jury, after
acknowledging that Ms. Mireles gave a video statement to Ranger Ramirez, the State
informed the trial court that it had never received the statement and was uncertain as to
what happened to the statement, but that it no longer existed. And, as noted above,
neither Ranger Ramirez nor the police knew where the video statement was. Cadriel
moved that the trial court strike Ms. Mireles’s testimony and grant a mistrial under rule
615(e). The trial court denied the motion.
Texas Rule of Evidence 615 provides the following:
(a) Motion for Production. After a witness other than the defendant has
testified on direct examination, the court, on motion of a party who did not
call the witness, shall order the attorney for the state or the defendant and
defendant's attorney, as the case may be, to produce, for the examination
and use of the moving party, any statement of the witness that is in their
possession and that relates to the subject matter concerning which the
witness has testified. . . .
(e) Sanction for Failure to Produce Statement. If the other party elects not
to comply with an order to deliver a statement to the moving party, the court
24
shall order that the testimony of the witness be stricken from the record and
that the trial proceed, or, if it is the attorney for the state who elects not to
comply, shall declare a mistrial if required by the interest of justice.
Id. By its plain language, rule 615(a) requires a party to produce witness statements that
are in “their possession.” Id. In Jenkins v. State, the Texas Court of Criminal Appeals
held that rule 615 only requires a prosecutor to produce witness statements that are “in
the prosecutor’s possession” or in the possession of the “prosecutorial arm of the
government.” 912 S.W.2d 793, 819 (Tex. Crim. App. 1993) (op. on reh’g) (en banc); see
Dancer v. State, 253 S.W.3d 368, 370 (Tex. App.—Fort Worth 2008, pet. ref’d) (per
curiam) (mem. op.).
The record in this case shows that at the time of trial the statement was not in the
possession of the State. The prosecutor affirmatively represented to the trial court that
he did not have Ms. Mireles’s video statement and that he did not know what happened
to it. The record establishes that neither the State, Ranger Ramirez, nor the police
physically possessed the statement at the time Cadriel requested it. The record also
shows that the statement was not within their control and was not readily accessible to
them. According to the State, “[n]obody has it anymore. That’s what we agreed on.”
And the trial court found that Cadriel had made no
suggestion or any direct implication . . . that the responsibility for this
misplacement or loss is at the feet of the office of the district attorney. . . . It
seems to rest—the responsibility tends to rest either at the feet of the office
of the Texas Ranger or at the Combes Police [D]epartment . . . and neither
side [is] able to account for it.
Upon the record and the findings of the trial court, this Court can only conclude that Ms.
Mireles’s video statement was not in the State’s possession for purposes of rule 615.
25
The trial court could not have ordered the State to produce the video statement. See
TEX. R. EVID. 615(a).
Furthermore, section (e) of rule 615 requires sanctions only “[i]f the other party[, or
in this case, the attorney for the State] elects not to comply with an order to deliver a
statement to the moving party.” Id. R. 615(e). Yet because the State did not possess
Ms. Mireles’s statement, the trial court did not order the State to deliver it to Cadriel.
Because the trial court never ordered the State to deliver the statement to Cadriel, the
State could not have elected not to comply with such an order. See id.; see also Marquez
v. State, 757 S.W.2d 101, 103 (Tex. App.—San Antonio 1988, pet. ref’d).
Based on the above, we conclude that the trial court properly denied Cadriel’s rule
615 motion for production and for sanctions.
C. Summary
We overrule Cadriel’s sixth issue.
VII. CONCLUSION
We affirm.
NELDA V. RODRIGUEZ
Justice
Do not publish.
TEX. R. APP. P. 47.2(b).
Delivered and filed the 24th
day of September, 2015.
26