Electronically Filed 9/26/2019 11:31 AM Hidalgo County District Clerks Reviewed By: Xavier Jimenez NO. CR—1180-18-C STATE OF TEXAS IN § THE DISTRICT COURT § vs. 139TH JUDICIAL DISTRICT § § PETER UVALLE HIDALGO COUNTY, TEXAS § BRIEF IN SUPPORT OF DEFENDANT’S MOTION TO SUPPRESS STATEMENTS AS INVOLUNTARILY COERCED IN VIOLATION OF TEXAS CCP ARTICLES 1.05, 38.22 & 38.23, CONSTITUTIONAL RIGHTS UNDER THE 4TH, 5TH 6TH AND 14TH AMENDMENTS, AND TEXAS CONSTITUTION ARTICLE 1, SECTION 9 TO THE HONORABLE JUDGE OF SAID COURT: Now comes, Peter Uvalle, Defendant, and Savannah Gonzalez, court appointed addendum to trial and files this brief by and through Lucia Regalado counsel for the defense, in support of and as the evidence and arguments elicited/made during the Jackson v. Denna hearing held in the 139th District Court 0n September 19, 2019. Issues Presented The Defendant filed this Investigator Enrique Ontiveros interrogation, that there timely Motion to Suppress the Video recorded statement on the basis was n0 knowing, intelligent prior to the procurement 0f said statement, rather was and was and voluntary waiver 0f Miranda that said statement Is rights. The Defendant was not made rights voluntarily, but raises the following specific issues: a suspect subj ect t0 a custodial interrogation When he is interrogated while constrained t0 a hospital bed/room under constant law enforcement bedside monitoring, is t0 the product of a custodial the product 0f improper, coercive police conduct in Violation of state statutory law and his federal due process 1. that said statement made prohibited from having any communication/contact With family Electronically Filed 9/26/2019 11:31 AM Hidalgo County District Clerks Reviewed By: Xavier Jimenez and is divested 0f his right to consent t0 medical treatment by law enforcement Who unilaterally assumes 2. Is this authority; a purported waiver 0f Miranda warnings and the resulting statement voluntary Where a suspect Will overborne is by youthful, lacks experience, heavily medicated and has his is the coercive actions of and circumstances created by law enforcement; and Is 3. Due a subj ect’s statement voluntary under addition t0 all Process When law enforcement, in 0f the previously discussed circumstances, also deprives him 0f access to medical care and basic necessities? Statement of Facts Despite testimony that there were at least two other Pharr Police Department officers present during the statement in question, during the Jackson v. Denna hearing the State presented only the testimony of lead Investigator Enrique Ontiveros 0f the Pharr Police Department. Investigator Ontiveros testified that on December 15th, 2017 he, a over thirteen years of experience, responded t0 Doctor’s Hospital law enforcement officer with at Renaissance (DHR) for the purpose of taking a statement from the Defendant, a suspect in an ongoing shooting investigation Who was in post-op but had not yet awoken from surgery. Prior Investigator Ontiveros spoke to a nurse (whose the hospital and was advised name is that the Defendant’s status to his arrival at DHR, both unrecalled and undocumented) was “stable”—Which at Investigator Ontiveros understood t0 mean, “not sedated”. Investigator Ontiveros testified that hospital to his arrival, Pharr PD was from the time of the Defendant’s arrival to the designated as the authorized agent for medical consent, the Defendant was not permitted t0 contact 0r have contact with his family members (or anyone Electronically Filed 9/26/2019 11:31 AM Hidalgo County District Clerks Reviewed By: Xavier Jimenez other than Pharr PD), and he was under 24-hour bedside watch. notified immediately upon the Defendant’s awakening post-op. approximately one o’clock pm, Investigator Ontiveros observed the Defendant to be laying down connected t0 an IV With Officer Cerda went in a hospital sitting Investigator Ontiveros Upon arrival t0 his t0 be DHR at directly to the hospital bed With patches on was room and arms and watch. Despite his admitted failure t0 inquire with the medical staff regarding the Defendant’s medicinal regimen, Investigator Ontiveros further described the Defendant as lucid, not impaired and with “nothing coming out 0f his mouth”. In support of their position, the State admitted State’s Exhibit statement 0f accused; in understands and testify to is it, the Defendant is that the a copy 0f the recorded read his Miranda warnings, directed t0 initial each warning any other indications 1, all at is asked if he once. Investigator Ontiveros did not Defendant actually understood these warnings. Next, the recording shows the following exchange: Investigator Ontiveros: “It says here, did which is you understand the Miranda Warnings, your rights?” Defendant: “Yes.” Investigator Ontiveros: “Okay. Investigator Ontiveros: rights, um, Defendant: The Defendant is right I need a check mark Where “And then it now and talk t0 me “I’ll talk to you about says, if so, would you it says “yes”. like t0 waive your about the case.” the case.” then directed t0 sign the appropriate waiver line and the recorded portion of the interrogation commences. The Defendant’s response here, which specifically does Electronically Filed 9/26/2019 11:31 AM Hidalgo County District Clerks Reviewed By: Xavier Jimenez not acknowledge the requested waiver whatsoever, is of the utmost importance as t0 the issue 0f the voluntariness 0f this purported waiver. The Defendant testified to a multitude 0f relevant facts related t0 his background, drug usage 0n the day in question, his experience With law enforcement prior to and during the recorded portion 0f his custodial interrogation, his subj ective feelings and mental state at the time 0f the interrogation and the mental and physiological effects he experienced from the medication administered at the hospital. controvert any 0f the evidence elicited The by State called no other Witnesses and did not the defense. Argument Custodial Interrogation The issue 0f whether or not a subject in custody is is objective circumstances in a particular case. Dowz‘hitt App 1996). Texas courts have outlined four situations When a subj ect enforcement is tells (4) a subject he cannot leave; (3) Where a 931 S.W.2d 244, 255 (Tex. Crim. subj ect his When law enforcement freedom of movement When law enforcement has probable cause freedom State, may be shows himself being guarded by a rotation 0f Pharr to arrest is when law creates a situation in significantly restricted; and does not inform the subj ect of his that the PD Defendant awoke post-surgery to find officers at his hospital bedside. Investigator Ontiveros testified that While waiting for the Defendant to awaken, Pharr its custody—(l) to leave. Id. at 255. In the instant case, the evidence (and in physically deprived 0f his freedom 0f action in a significant way; (2) Which a reasonable person would believe and v. based upon a review 0f all of the PD designated itself agents) as the only approved Visitor and sole agent for consent While the Defendant a patient of DHR. Furthermore, once the Defendant was conscious, Pharr PD also restricted was him Electronically Filed 9/26/2019 11:31 AM Hidalgo County District Clerks Reviewed By: Xavier Jimenez from having telephone access and prevented him from having any communication 0r contact with his family. The actions of Pharr the Defendant’s shoes tantamount to t0 a degree To would believe is 0n the defendant interrogation. Here, there that his freedom 0f movement was significantly restricted arrest. trigger the safeguards the burden PD resulted in a situation in which any reasonable person in is t0 of TeX. Code Crim. Proc. Art. 38.22 and Miranda show that a statement n0 question was v. Arizona, the product of custodial that the Defendant’s statement resulted from a custodial interrogation—a fact uncontroverted by the State. Voluntariness under Texas Code Criminal Procedure Sec. 38.22, Miranda and Federal Due Process The State bears the Defendant’s statement was Proc., Art. 38.22, §§ 2(b) burden t0 prove, by a preponderance of the evidence, made knowingly, intelligently, and voluntarily. Tex. Code Crim. & 3(a)(2). Voluntariness requires a review 0f and is assessed by considering the totality of the circumstances under Which the statement State, 23 S.W.3d 18, 23 (TeX. Crim. App. 2000) and Creager (TeX. Crim. App. 1997). The totality v. State, was (TeX. App.-H0ust0n [14th Dist] 2014, determination 0f voluntariness; obtained. Wyatt v. 952 S.W.2d 852, 855 of the circumstances includes a review 0f the accused’s experience, background and the conduct and characteristics 0f the accused. n0 pet). Intoxication is Umana v. State, also a relevant factor in the “When the record reflects evidence 0f narcotics, medications, other mind-altering agents, the questions becomes whether those 342 S.W. 3d 783, 792 (Tex. App.-Houston ‘involuntary,’ for the purposes 0f federal [14th Dist] 201 due process, only or intoxicants prevented the defendant from making an informed and independent decision t0 waive State, that the 1). if there “A was [his] rights.” Paolilla v. statement is official, coercive conduct Electronically Filed 9/26/2019 11:31 AM Hidalgo County District Clerks Reviewed By: Xavier Jimenez 0f such a nature that any statement obtained thereby was unlikely to have been the product 0f an essentially free and unconstrained choice by its maker.” Alvarado v. State, 912 S.W.2d 199, 211 (Tex. Crim. App. 1995). At the Jackson v. Denno hearing, the State presented one Witness and elicited the following scant evidence in support of its claim that the Defendant understood his rights, voluntarily 1. waived them and voluntarily gave the recorded statement: That the Defendant appeared lucid, unimpaired and had “nothing coming out 0f his mouth”; 2. That Investigator Ontiveros read the Miranda warnings to the Defendant Which the Defendant 3. and signed; That the Defendant never asked t0 stop the interrogation and never asked for an attorney; 4. initialed and That Investigator Ontiveros did not coerce 0r make any promises t0 the Defendant in exchange for his statement. State’s Exhibit #1 shows the warnings administered by Investigator Ontiveros and the Defendant’s response—one that does not address or acknowledge the waiver, but only states that he will discuss the case. This evidence 0f the exchange between Investigator Ontiveros and the Defendant is of utmost importance because contents 0fthe waiver it and expressly did not On cross—examination, underscores the fact that he did not understand the exercise a waiver. Investigator Ontiveros admitted that prior to the beginning of the recorded statement 0f accused, he was in the hospital two other officers (all armed With their service room With the Defendant and n0 weapons) for over less than 45 minutes. Despite his well- established obj ective t0 obtain a statement from the Defendant immediately upon arrival to DHR, Electronically Filed 9/26/2019 11:31 AM Hidalgo County District Clerks Reviewed By: Xavier Jimenez Investigator Ontiveros conveniently failed to record the interaction from its inception and thus, deprived this Court 0f any tangible evidence of the interactions with the Defendant during this period—leaving the Court t0 wonder What coercive Investigator Ontiveros testified that he tactics were utilized. had no prior dealings with the Defendant and could not speak t0 the Defendant’s normal mental capacity. Further, Investigator Ontiveros did not avail himself to any relevant information regarding the Defendant’s medical care 0r drug use (recreational 0r prescribed) in the days inquiry that Investigator Ontiveros and hours before the statement was taken. The only made was regarding the most recent administration 0f pain Defendant was unable medication—6z30am. Investigator Ontiveros testified that the medical consent and notification forms and did not have the capacity at the hospital t0 sign his t0 consent t0 treatment. The Court in Paolilla noted that While intoxication is a factor to be considered in determining the voluntariness of an accused’s statement, the record must reflect evidence that narcotics, medications, 0r other mind-altering agents” 3d at 792. Only then the Defendant from making an informed and independent decision suffering who t0 waive 342 S.W. [his] rights.” Id. examined the voluntariness 0f the statement 0f the appellant, a claimed to be intoxicated due to ingested medications coupled With her from acute opioid Withdrawal. that the testimony vs. State, will the Court turn t0 the question of “whether those intoxicants prevented In Paolilla, the Court heroin addict were present. Paolilla of three San Antonio intoxicated,” “spoke clearly Id. at PD 787. In that case, the Court underscored the fact officers indicated that the subj ect “did not appear and concisely,” gave responses appeared to be “physically fine and lucid”. Id. at 793. that appeared “calculated” and The Court seemed t0 be comforted by the notion that these officers testified t0 their experience in dealing with heroin addicts and did not Electronically Filed 9/26/2019 11:31 AM Hidalgo County District Clerks Reviewed By: Xavier Jimenez Witness any 0f the symptoms of Withdrawal 0r intoxication frequently associated With such addicts. Id. Despite the testimony provided by the defense’s expert Witness, a physician board certified in psychiatry and addiction medicine, there the appellant experienced 0r exhibited any This shows is that the some 0f the commonly t0 the interrogation and was experiencing associated With these medications. of all, Investigator Ontiveros freely admitted t0 having no special training 0r their side effects. Investigator Ontiveros Defendant was connected ignorance as and symptoms 0f intoxication—only Withdrawal. Defendant was heavily medicated prior knowledge 0f drugs/medication and at the in Paolilla that distinguishable from the Defendant’s case in that the evidence in the case at bar side effects First fact that the was n0 evidence presented it related t0 t0 an IV morphine drip but ignored any medications or drugs that the it, acknowledged the and he chose willful Defendant was under the influence 0f time 0f the interrogation—a fact that would surely give the Court pause as t0 the reliability credibility 0f law enforcement involved. Investigator Ontiveros elected t0 turn a blind eye t0 the fact that over the course 0f hours before his recorded statement, the Defendant was under the influence of a cocktail 0f antibiotics and heavy pain medications including, but not limited 1. to: Cefazolin a. An antibiotic that cause dizziness, headaches, altered mental state, light headedness, mental cloudiness, impairment 0f mental and physical performance, lack 0f coordination and severe pain. 2. Ertapenem a. An antibiotic that causes altered mental states, anxiety, dizziness, fatigue, fever, headache, insomnia; 3. Hydrocodone Electronically Filed 9/26/2019 11:31 AM Hidalgo County District Clerks Reviewed By: Xavier Jimenez a. A Norco opioid that causes lightheadedness, dizziness, sedation, drowsiness, mental cloudiness, lethargy, impairment of mental and physical fear, 4. dysphoria and Meperedine, commonly a. mood known state, anxiety, changes; as “Demerol” An opiod pain medication that causes agitation, lack 0f coordination, clouded sensoriam, dizziness, euphoria, light headedness, sedation hallucinations, headache, paranoid anxiety and confusion; and 5. Morphine a. An opioid pain medication that causes dizziness, drowsiness, headaches, euphoria, light headedness, nightmares, sedation, depression, hallucinations, nervousness and anxiety. Secondly, unlike in Paolilla, here there is ample evidence that the Defendant was experiencing the intoxicating effects 0f these medications. Specifically, the Defendant testified that he went to DHR for treatment of gunshot wounds he sustained t0 his arm and chest. He demonstrated the mental cloudiness he experienced occurred between his arrival at the hospital when he could not recall precisely What and the point at Which he awoke officers in his hospital room—including Investigator Ontiveros Who he to approximately 10 recalled seeing a short time after he awoke. The Defendant described feeling scared and nervous, and he remembered asking to see his family. The Defendant recalls the fear, intimidation and anxiety he experienced With the “cops” at his bedside at all times and preventing him from contacting his family. Although Investigator Ontiveros could not recount what happened in the 46 minutes that he was in the Defendant’s hospital room before beginning the recorded statement, the Defendant Electronically Filed 9/26/2019 11:31 AM Hidalgo County District Clerks Reviewed By: Xavier Jimenez definitively stated that Investigator Ontiveros questioned him during this time. The Defendant asked Ontiveros “if he could talk t0 family,” but was denied. In further contrast t0 Paolilla, the Defendant Viewing his statement of accused notes that he appears strange/different than his normal demeanor. experiencing headaches all He recalled feeling pain in his chest and the While going in and out 0f consciousness. The Defendant described that in addition t0 the medications administered to him, he had also consumed 15 Xanax pills over the course of the preceding day and night before and he felt intoxicated during the interrogation. Each 0f these his admission t0 the hospital, are established side-effects 0f the medications the Defendant was under. Investigator Ontiveros agreed that his opinion as to the voluntariness 0f the Defendant’s waiver and statement was solely based on the Defendant’s verbal response and signature on the Miranda waivers. In hindsight, Investigator Ontiveros reluctantly agreed that this medicinal cocktail could very well have had an effect 0n the Defendant’s mental ability t0 give a voluntary statement. Finally, the evidence showed that the Defendant was deprived of food, water, family and freedom of movement during the course 0f the interrogation. Moreover, When the Defendant could n0 longer bear the physical pain he was experiencing from the gunshot wounds and asked for pain medication, Investigator Ontiveros that as well—afterall, “[they]’re almost The evidence especially as made the most egregious Violation t0 the denying him done” [With the interrogation]. that the Defendant’s recorded statement compared in was involuntary is overwhelming minimal evidence the State provided. Not only did the State prove voluntariness by a preponderance of the evidence, it failed t0 controvert fail to any of the evidence elicited by the defense in support 0f involuntariness. The Court should find that based Electronically Filed 9/26/2019 11:31 AM Hidalgo County District Clerks Reviewed By: Xavier Jimenez 0n the totality 0f the circumstances, (1) Defendant’s statement 0f accused was the product of a custodial interrogation, (2) that any purported waiver 0f his knowingly and voluntarily, and finally, voluntarily, but instead was obtained (3) that the Miranda rights was not made Defendant’s statement was also not as a result of the coercive freely, made and improper actions 0f law enforcement in Violation 0f his right to Due Process. Conclusion and Prayer WHEREFORE, PREMISES CONSIDERED, his Motion the Defendant prays the Court grant t0 Suppress. Respectfully submitted, Regalado Law & Mediation Center 705 E. Pecan Blvd. McAllen, TX 78501 Tel: (956) 630-7546 Fax: (956) 630-7566 By: /s/ LWReg/ala/do- Lucia Regalado State Bar N0. 24083720 attylregalado@gmail.com Attorney for Peter Uvalle By: /s/ S mammoth 60W Savannah Gonzalez State Bar N0. 2407 1 750 attomey@savannahgonzalez.com Attorney for Peter Uvalle CERTIFICATE OF SERVICE Electronically Filed 9/26/2019 11:31 AM Hidalgo County District Clerks Reviewed By: Xavier Jimenez This is t0 certify that 0n September 26, 2019, a document was served 0n the true District Attorney's and correct copy of the above and foregoing Office, Hidalgo County, by electronic service through the Electronic Filing Manager. /s/ LWRegalondo Lucia Regalado