Page 29 - TPA Journal March April 2023

motherfucker.” After Appellant shot Harvey, the testified that Appellant did not mistreat, harm, or
passenger shot Javier. Javier fell to the ground, act disrespectfully to her or her four children while
went for his gun, and shot at the passenger. When he was there and that she did not feel threatened
that happened, the two men got back into the by him. The evidence also showed that Appellant
SUV and drove away, with the passenger hanging surrendered peacefully to border patrol agents
on to the door. Harvey’s parents identified when they found him. And a director from the
Appellant as the driver and testified that Appellant Texas Department of Criminal Justice testified
shot Harvey. The friend, Aric Garcia, testified that she saw nothing in Appellant’s records that
that the driver shot Harvey. Harvey’s wife testified indicated he was part of a security threat group,
that Appellant was one of the men in the SUV. though she testified on cross-examination that he
Harvey died, never regaining consciousness. had previously been placed in administrative
segregation.
Around 2:00 the next morning, the SUV broke
down and Appellant and his passenger were II. GUILT
forced to walk. They went to a house and asked for A. Venue
help. The woman who lived there let them in, …
but she alerted border patrol agents after seeing a B. Jury Selection
helicopter search light. …
D. Recorded Statements
Appellant and his passenger were arrested. Swabs
from testing Appellant’s hands tested In points of error three through seven, Appellant
positive for gunshot residue. A .45 caliber Taurus contends that the trial court erred in failing
pistol was later found near the scene of to suppress his recorded custodial statements to
Appellant’s arrest. Four .45 caliber cartridge the Texas Rangers. He claims that parts of the
casings found at the crime scene and the bullet that statements were inadmissible because they were
killed Harvey were consistent with having been obtained in violation of Miranda v. Arizona and
fired from the Taurus. Bloodstains on the driver’s Article 38.22 after he invoked his right to silence.
side seatbelt and the passenger seat backrest of the He also claims that the statements were coerced or
red SUV matched Appellant’s DNA.6 involuntary in violation of constitutional and
At the punishment stage of trial, the State statutory protections and that constitutional and
introduced evidence that Appellant participated statutory requirements were violated because he
in three other robberies against people fishing in did not knowingly, intelligently, and voluntarily
the area. During these robberies, the victims were waive his rights prior to the statements. In point of
ordered at gunpoint to get on the ground. One error eight, Appellant contends that the trial court
victim was struck twice in the head with the butt should have instructed the jury on voluntariness
of a gun. Appellant also had convictions for under Section 7 of Article 38.22.
misdemeanor assault, unlawful carrying of a
weapon, and driving while intoxicated, as well as 1. General Law on Confessions, Standard of
two convictions for possession of marijuana. And Review, and Standard of Harm
Appellant had a federal conviction for illegal
reentry after deportation. Ordinarily, for an electronically recorded
statement made by a defendant in custody to be
Appellant presented the following mitigating admissible under Article 38.22, the officers taking
evidence at punishment: The woman who lived the statement must, prior to the statement and on
in the house where Appellant was arrested the recording, convey certain warnings outlined in

March-April 2023 www.texaspoliceassociation.com • (512) 458-3140 25