Page 36 - TPA Journal March April 2023

Article 36 of the Vienna Convention on Consular As for lack of sleep, some lack of sleep was
Relations. And he claims that the Rangers’ failure inevitable given that Appellant appears to have
to honor his right to cut off questioning created a fled until law enforcement caught up with him at
coercive environment. 2:00 in the morning. But the claim that he was
not allowed sleep between the two interviews is
A confession is coerced in violation of due process based solely on his own testimony, which the trial
if the suspect’s “will has been overborne court was free to disbelieve and did disbelieve.
and his capacity for self-determination critically Also, tiredness by Appellant does not by itself
impaired.” Factors taken into account in show that his will was overborne so that his
addressing this question are “the youth of the capacity for self-determination was impaired.
accused, his lack of education or his low As for lack of medical care, Appellant
intelligence, the lack of any advice about acknowledges that Ranger O’Connor did not
constitutional rights, the length of detention, the believe the injury to be serious. Appellant has not
repeated and prolonged nature of the questioning, shown that Ranger O’Connor’s assessment was
and the use of physical punishment such as the incorrect, nor has he shown that this purported
deprivation of food or sleep.”89 But even with injury pressured him to make incriminating
these factors, an essential element of any due- statements. We conclude that Appellant has not
process involuntariness claim is law-enforcement shown that his will was overborne by official
overreaching. A suspect’s lack of sleep, alone, misconduct.
does not make a statement coercive in violation of
due process. As for Appellant’s claim that he was not informed
of his rights under Article 36 of the Vienna
Most of the factors do not favor a conclusion that Convention on Consular Relations, the Supreme
Appellant’s will was overborne. Appellant Court has held that exclusion of evidence
was not young—he was 30 years old at the time he is not an appropriate remedy in that situation.
gave the statement—and he does not point to And the Supreme Court has said that a failure to
anything suggesting that he lacked education or inform an accused of his right under Article 36 “is
intelligence. It does appear that his primary, and unlikely, with any frequency, to produce
perhaps sole, language was Spanish, but the unreliable confessions” and that “there is likely to
interviews were conducted in Spanish. The be little connection between an Article 36
elapsed time for all interviews combined was violation and evidence or statements obtained by
approximately 2 hours and 25 minutes, which police.” Given the other voluntariness factors we
does not seem particularly long, especially for a have discussed above, the failure to inform
capital murder case. Appellant was given Appellant of his right to contact the consulate did
complete Article 38.22 warnings at the beginning not cause otherwise voluntary statements to
of each of the two recorded interviews, and while become coerced.
Ranger Vela continued the first interview after
Appellant first said he did not want to continue It is true that the Rangers continued to interview
talking, this continued questioning was brief, and Appellant after his statement in the second
questioning did cease after Appellant reiterated his interview that he did “not want to talk about this
request. Appellant’s claims of mistreatment are anymore.” That fact is not sufficient, under the
based solely on his own testimony, which the trial circumstances of this case, to cause what was said
court was free to disbelieve. And in fact, the afterwards to have been coerced in violation of
findings indicate that the trial court did not believe due process. Regardless, little was admitted into
Appellant’s testimony in this regard. evidence after this statement. The only

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