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); 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 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 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 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] 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 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 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 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 Court of Appeals Fifth District of Texas at Dallas JUDGMENT Based on the Court’s opinion of this date, the trial court’s order is AFFIRMED. Judgment entered this 3rd day of October, 2019. THE STATE OF TEXAS, Appellant No. 05-18-00870-CR V. KEVIN CASTANEDANIETO, Appellee On Appeal from the Criminal District Court No. 6, Dallas County, Texas Trial Court Cause No. F17-57212-X. Opinion delivered by Justice Carlyle, 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. THE STATE OF TEXAS, Appellant No. 05-18-00871-CR V. KEVIN CASTANEDANIETO, Appellee Court of Appeals Fifth District of Texas at Dallas JUDGMENT On Appeal from the Criminal District Court No. 6, Dallas County, Texas Trial Court Cause No. F17-57213-X. Opinion delivered by Justice Carlyle, Justices Bridges and Partida-Kipness participating. THE STATE OF TEXAS, Appellant No. 05-18-00872-CR V. KEVIN CASTANEDANIETO, Appellee Court of Appeals Fifth District of Texas at Dallas JUDGMENT On Appeal from the Criminal District Court No. 6, Dallas County, Texas Trial Court Cause No. F18-00407-X. Opinion delivered by Justice Carlyle, 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.
