Luis Gerardo Lugo Pena v. the State of Texas

NUMBER 13-24-00230-CR

                           COURT OF APPEALS

                  THIRTEENTH DISTRICT OF TEXAS

                    CORPUS CHRISTI – EDINBURG


LUIS GERARDO LUGO PENA,                                                  Appellant,

                                         v.

THE STATE OF TEXAS,                                                       Appellee.


            ON APPEAL FROM THE 206TH DISTRICT COURT
                   OF HIDALGO COUNTY, TEXAS


                         MEMORANDUM OPINION

                 Before Justices Silva, Cron, and Fonseca
                  Memorandum Opinion by Justice Silva

      Appellant Luis Gerardo Lugo Pena was indicted for aggravated robbery, a first-

degree felony. See TEX. PENAL CODE § 29.03(a)(3)(A), (b). The indictment contained one

enhancement paragraph alleging that Pena had previously been convicted of a felony

offense. See id. § 12.42(c)(1). Following a jury trial, he was found guilty and was
sentenced to fifteen years’ imprisonment. By two issues, Pena argues (1) the trial court

committed error when it failed to conduct a hearing pursuant to Texas Code of Criminal

Procedure Article 38.22 concerning the voluntariness of his statement to police, and

(2) he received ineffective assistance of counsel. We affirm.

                                         I.      BACKGROUND

         The indictment alleged that Pena, on or about September 29, 2023, “did then and

there, while in the course of committing theft of property and with intent to obtain or

maintain control of said property, intentionally, knowingly, or recklessly cause bodily injury

to Miguel Martinez Aguirre, a person 65 years of age or older, by striking him with his

hand.” See id. § 29.03(a)(3)(A). The indictment also alleged that prior to the commission

of the aggravated robbery, Pena was convicted of the felony offense of possession of a

controlled substance on April 6, 2022. See id. § 12.42(c)(1); TEX. HEALTH & SAFETY CODE

§ 481.115(d). On April 1, 2024, Pena filed a motion to suppress alleging in part that “he

was under coercive custodial interrogation” and that any statements obtained from him

by police were “in violation of Article 38.22 of the Texas Code of Criminal Procedure.” 1

         A jury was subsequently empaneled on April 9, 2024, and a jury trial commenced

that same day. In a trial spanning over three days, twelve witnesses testified and over a

hundred exhibits were admitted. We summarize the relevant testimony and evidence

below.




         1 The appellate record is devoid of any indication that the trial court held a hearing or ruled on

Pena’s motion to suppress.
                                                     2
A.     Lay Witness Testimony

       1.     Natalie Ortiz

       Natalie Ortiz testified that on September 29, 2023, she was having problems “with

the brakes and the lug[ ]nuts” on her van. She explained that Pena was a friend of hers

and that she had known him for eleven years. Ortiz allowed Pena to take possession of

her van around 7:00 or 7:30 that morning “because he was working on it,” and the lug

nuts fell off shortly after. Ortiz further testified that her van broke down near a restaurant

in Edinburg. Pena called Ortiz and she picked him up from the restaurant in her friend’s

vehicle and drove him to Advance Auto Parts to purchase lug nuts for her van. A

photograph of the receipt related to the transaction was admitted into evidence. Ortiz

stated that after the trip, she dropped Pena back off at the restaurant around 8:15 or 8:30

a.m. and that he was the last person to be in possession of her van that day. Ortiz also

identified Pena in a photograph admitted into evidence which depicted him sitting in the

driver’s seat of her van.

       2.     Manuel David Herrera Jr.

       Manuel David Herrera Jr. testified that he observed a van occupied by two

individuals parked in front of the home of Moises Elizondo, Herrera’s neighbor. Herrera

observed that the van’s hood was open and there was a jack under the tire; however,

smoke was not coming from the engine, nor did the van appear to have a flat tire. That

night, Herrera learned that Elizondo reported “he had been robbed.” Herrera stated he

observed the same van in his neighborhood the following day on September 29, 2023,

but this time near the corner of Victoria Street. Herrera testified that it appeared the van

was having the same problems as the day before. He took photographs of the van and

                                              3
the individual in the driver’s seat, which were admitted as evidence. Herrera identified

Pena as the driver of the van in the photographs.

      Herrera testified that the van proceeded to leave the neighborhood and he followed

it in his white vehicle. He testified that during this pursuit, he observed a Pharr Police

Department (PPD) unit and waved his hand out of his vehicle in an attempt to direct the

officer’s attention to the van. He also noticed that the van had a flat tire. Herrera was

subsequently pulled over by PPD and explained to the officer that he was following the

van because his neighbor Elizondo reported a crime.

      3.     Genaro Cortez

      Genaro Cortez testified that he was employed by the Hidalgo County Irrigation

District as an excavator operator and that he cleaned ditches. At approximately 10:00

a.m. on September 29, 2023, Cortez was “cleaning an irrigation canal” when he noticed

a van and two young men running around the canal. He further testified that he was not

concerned with the men at first because “a lot of people go running and walking there.”

However, Cortez eventually became concerned because the van was still running,

whereas the people who go there to run and walk usually turn off their vehicles.

Photographs of the van parked near the canal were admitted into evidence. Cortez

described the area near the van’s location as brush area. He also testified that Juan Balli

Road was located behind the brush area.

      4.     Miguel Martinez Aguirre

      Aguirre testified he was seventy-seven years old, and he was driving to see his

cardiologist in his light blue Honda on September 29, 2023. Aguirre testified that he was

driving on Juan Balli Road and before he got to Jackson Road, “a male came out of the

                                            4
brush area” and stood in front of his vehicle. Aguirre stated another man came up to the

driver’s side of his vehicle, asked for help, and then started hitting him. Aguirre tried to

cover his face to prevent further injuries and was unable to see either of the men because

he had blood in his eye. Photographic evidence admitted at trial depicted Aguirre’s blood

located on the ground at the scene where the attack occurred and around the driver’s

side of his vehicle. He also testified that one of the men unbuckled his seatbelt and the

other man pulled him out of his vehicle. Once he was pulled out of his vehicle, a woman,

identified as Blanca Rosales, arrived to assist Aguirre in moving him out of the road.

       5.      Blanca Rosales

       Blanca testified that on September 29, 2023, she drove towards Juan Balli Road

at approximately 9:45 a.m. Blanca explained that when she first drove by the area, she

noticed a “white van on the other side of the canal.” Blanca additionally saw a blue vehicle

and “thought it had mechanic[al] problems,” but when she passed the blue vehicle, she

“saw a person being beat up.” She also noticed two men on Juan Balli Road, with a third

man in the driver’s seat of the blue vehicle. Blanca further stated that she observed the

driver of the blue vehicle being forcefully punched, strangled, and kicked by the other two

men. To gather more information, Blanca followed the two men, who left the scene in the

blue vehicle. After calling 911, she returned to the victim to assist with his injuries. After

viewing previously admitted photographs of the van, Blanca confirmed that the van was

the same one she observed earlier. She also identified the victim of the attack as the

same man depicted in other photographs admitted into evidence. 2


       2 During Blanca’s testimony, Pena’s counsel stipulated that the victim suffered bodily injury. See

TEX. PENAL CODE § 29.03(a)(3).

                                                   5
B.     Law Enforcement Testimony

       1.     Officer Alexis Diaz

       PPD Officer Alexis Diaz testified that he was on patrol on September 29, 2023,

when he noticed a white vehicle committing traffic violations at around 9:45 or 10:00 a.m.

Officer Diaz “proceeded to conduct a traffic stop on said vehicle” in his “fully marked police

unit with [his] emergency lights and sirens.” Once he caught up to the white vehicle,

Officer Diaz noticed it was following a van, which was operating with a flat tire. The white

vehicle eventually stopped, and Officer Diaz conducted a traffic stop. He testified that the

driver of the white vehicle, identified as Herrera, was cooperative, “calm, [and] just trying

to provide information.” Officer Diaz’s dash camera video footage admitted into evidence

depicted a white vehicle following a van. In the video, Herrera is seen waving his hand

outside of his vehicle. Officer Diaz testified that an aggravated robbery occurred near the

intersection of Juan Balli Road and Jackson Road approximately ten minutes after he

stopped Herrera.

       2.     Detective Daniel Javier Rosales

       PPD Detective Daniel Javier Rosales testified that on September 29, 2023, he

“responded to the scene where the van was at on a canal.” After looking at photographs

of the van near the canal that were admitted into evidence, he confirmed that was how

he found the van when he arrived at the scene and that he spoke to an employee working

on the excavator depicted in the photographs. Detective Rosales further stated that based

on his training and experience, the van was parked in an unusual location. Detective

Rosales looked inside of the van, as the windows were open, and discovered a receipt

and a pipe. He additionally photographed a footprint in the brush area “running from the

                                              6
van going east towards where [Aguirre]’s vehicle was at on Juan Balli Road.” Detective

Rosales also noted that the van was “missing a tire and rim on the driver’s side rear.”

      3.     Officer Alexis Rosas

      PPD Officer Alexis Rosas testified that he was patrolling around 9:45 or 10:00 a.m.

and was dispatched to “a possible robbery that had just occurred.” When he arrived on

scene, he observed “an old man in the middle of the street” who “looked like he had just

received a beating.” After contacting the victim, he noticed the man was bleeding from his

eye and had blood all over his face and torso. Officer Rosas also made contact with

Blanca who summarized her observations for him. He testified that he learned Aguirre’s

“injuries were made by two male subjects that were punching.” On cross-examination,

when counsel pointed out that Aguirre “testified that only one person was punching him,”

Officer Rosas repeated, “He had told me that he was being punched by both of them.”

      4.     Detective Hector Castillo

      PPD Detective Hector Castillo testified he “heard over the radio that there had

been a robbery by Juan Balli and South Jackson” at approximately 10:00 a.m. He arrived

at the scene shortly after and made contact with Aguirre. Detective Castillo additionally

noticed a van by the canal with a missing tire. He received consent from Ortiz and

conducted an inventory search of the van. Detective Castillo testified that he was able to

get a name and description of the individual who drove the van. He further testified that

he recovered a glass pipe and an Advance Auto Parts receipt dated earlier that same

day. Detective Castillo stated that the receipt was significant because “it was time

stamped for the morning just before the robbery” and it was important to determine who

purchased an item on the day at issue. He also stated that the “van was involved in a

                                            7
vehicle pursuit minutes . . . before the aggravated robbery.” Detective Castillo identified

Pena as the individual who was driving the van. He further testified that the aggravated

robbery occurred approximately ten minutes after officers stopped Herrera.

      Detective Castillo explained that he obtained video surveillance of Advance Auto

Parts showing Pena arriving at the store, making a purchase, receiving a receipt, and

returning to Ortiz’s friend’s vehicle, which was driven by Ortiz, on September 29, 2023.

He testified that this purchase was consistent with Ortiz’s statement, linked Pena to the

items found in the van, and “confirmed that it was him inside that van.” During his

investigation, Detective Castillo was able to get information concerning Pena’s

whereabouts and located him at the home of Marissa Lima, Pena’s common law wife, in

Edinburg. He further testified that Aguirre’s vehicle was located in Edinburg as well. Once

Lima informed officers that Pena was in her home, Detective Castillo found him “hiding

behind the door” in one of the rooms.

      After taking him into custody, Detective Castillo and his colleague proceeded to

conduct an interview of Pena in Spanish. The following exchange occurred during his

testimony in the presence of the jury:

      [The State]:                Before speaking with [Pena], did you advise him
                                  of his constitutional right in connection with his
                                  privilege against self-incrimination?

      [Detective Castillo]:       Yes, I did. Once I was in the interview room . . . I
                                  sat him down and I read him his Miranda
                                  warnings in Spanish.

      [The State]:                Did you advise [Pena] of his right to an attorney?

      [Detective Castillo]:       Yes, I did.

      ....

                                            8
[The State]:            Did you advise [Pena] at that time of his right to
                        remain silent?

[Detective Castillo]:   Yes, I did.

[The State]:            Okay. And that anything he said could and
                        w[ould] be used against him?

[Detective Castillo]:   Yes, I did.

[The State]:            Okay. And his right to have an attorney present
                        prior to and during any questioning?

[Detective Castillo]:   Yes, sir.

[The State]:            Okay. And . . . his right to have an attorney
                        appointed to advise him prior to and during any
                        questioning, did you advise him of that?

[Detective Castillo]:   Yes, sir, I did.

[The State]:            And did you advise him of his right to terminate
                        the interview at any time?

[Detective Castillo]:   Yes, I did.

....

[The State]:            Detective Castillo, are you fluent in the Spanish
                        language?

[Detective Castillo]:   Yes, I am.

....

[The State]:            And you had every reason to believe that [Pena]
                        was fluent in Spanish only?

[Detective Castillo]:   Yes.

....

[The State]:            And did you have any reason to believe that
                        [Pena] was under [a] mental illness?

                                    9
[Detective Castillo]:   Negative, sir.

[The State]:            Did he appear to be under the influence of a
                        mind-altering drug?

[Detective Castillo]:   No, sir.

[The State]:            Based on everything that you saw about [Pena],
                        did it appear that he understood what you were
                        saying to him?

[Detective Castillo]:   Yes, sir.

[The State]:            And did you understand what he was saying to
                        you?

[Detective Castillo]:   Absolutely.

....

[The State]:            [Detective] Castillo, when you . . . conduct a
                        custodial interview of a defendant, where do you
                        do that?

[Detective Castillo]:   We do it . . . upstairs in a [Criminal
                        Investigations Division] office. It’s a secure
                        location with audio and video record[ing].

[The State]:            Do you sometimes use other devices that you
                        take in there with you?

[Detective Castillo]:   Body[ ]cam[era].

....

[The State]:            Okay. Does the recording reflect that the
                        delivery of [Pena]’s rights . . . w[ere] done
                        before asking any questions of him?

[Detective Castillo]:   Yes.

[The State]:            Okay. And does the recording reflect that [Pena]
                        waived those rights and then agreed to talk to
                        you?

                                    10
      [Detective Castillo]:      Yes.

After this exchange, the State moved to admit Pena’s video-recorded statement.

However, Pena objected, and the following colloquy ensued while the jury was present in

the courtroom:

      [Pena’s counsel]:          Your Honor, we also question voluntariness and
                                 we [would] ask the [c]ourt to review at least the
                                 initial part of the videotape to see whether it
                                 complies with [Article] 38.22 before showing the
                                 video—or admitting the video into evidence.

                                 ....

                                 [W]e would argue under Section 6 as to [the]
                                 voluntariness of the statement, given the failure
                                 to comply with the full [“]knowingly, intelligently
                                 and voluntarily.[”]

      ....

                                 (At the [b]ench, on the record)

      [The State]:               I do understand under that section, Section 6 of
                                 [Article] 38.22, that the issue as to the
                                 voluntariness can be raised but [Pena] has not
                                 filed a motion to suppress or any other motion[.]

      ....

      [Pena’s counsel]:          [I]f you read the statute, it says when the
                                 question of voluntariness is—of a statement of
                                 [an] accused, the [c]ourt must make an
                                 independent finding in the absence of the jury.

      THE COURT:                 Right. But it has to be requested. I can’t—I do
                                 not represent [Pena]. It has to be a request
                                 made by the defense and a request for a
                                 hearing and a ruling. Has that been done?

      [Pena’s counsel]:          No. I wanted a ruling. If the [c]ourt’s going to
                                 deny it, it’s fine.

                                          11
       ....

                                   (Open court, [Pena] present, no jury)

       ....

       THE COURT:                  [Pena]’s objections are overruled.

The trial court overruled Pena’s objection outside of the jury’s presence.

       When the jury returned to the courtroom, the State proceeded to publish Pena’s

recorded statement and admitted into evidence a written translation of the statement.

Pena’s statement confirmed all of the details concerning his involvement in the robbery

of Aguirre, including the trip to Advance Auto Parts, driving Ortiz’s van, being in Herrera’s

neighborhood and being chased by him, encountering a police officer, getting a flat tire,

and taking Aguirre’s vehicle; however, Pena did not admit to hitting Aguirre. Detective

Castillo testified that his investigation led him to another suspect by the name of Jesus

Limas, Pena’s brother-in-law. He obtained a statement from Limas and confirmed that

Limas’s statement was consistent with Pena’s statement.

       On re-cross examination, Pena’s counsel asked Detective Castillo how he

determined Pena was not using drugs, to which Detective Castillo responded, “Because

[of] his composure. He was in five senses. He answered all [the] questions. He

understood what I was trying to tell him. That’s what makes me believe that he was

capable of giving me his statement.” Detective Castillo further testified that if he had

noticed any signs or symptoms of Pena being intoxicated, he would not have interviewed

Pena that day. After Detective Castillo testified, the State rested its case-in-chief and

Pena did not call any witnesses.


                                             12
C.     Jury Charge, Verdict, and Sentence

       On April 11, 2024, the trial court held a charge conference outside the presence of

Pena and the jury. Pena’s counsel had no objections to the proposed charge; however,

he requested a change to the law of parties language and also requested the addition of

a lesser included offense. The trial court denied both requests. The final charge included

an instruction regarding the law of parties. Pena’s counsel did not object to the proposed

charge concerning Article 38.22 or the voluntariness of his statement to Detective Castillo.

Following this conference, Pena rested his case-in-chief.

       During its closing argument, the State summarized all of the testimony and

evidence presented and briefly mentioned Pena’s statement:

       And I want to talk about the defendant’s statement. He wasn’t—there was
       no signs of intoxication, no symptoms of mental illness. He was Mirandized
       just like you are supposed to do, and he freely and voluntarily waived his
       rights and he agreed to talk to Detective Castillo. And what did he say? He
       admitted to everything. He admitted to every single thing except, [he] didn’t
       hit the old man, right. What a self-serving statement, and maybe that’s true,
       right, or maybe it’s not.

The jury found Pena guilty of aggravated robbery. Pena pleaded “true” to the indictment’s

felony enhancement paragraph, which the jury found “true.” The jury sentenced Pena to

fifteen years’ imprisonment in the Texas Department of Criminal Justice Institutional

Division. This appeal followed.

                          II.     VOLUNTARINESS OF STATEMENT

       Pena first argues that the trial court failed to conduct a hearing as to the

voluntariness of his statement in accordance with Article 38.22 of the Texas Code of

Criminal Procedure. Pena contends that he was harmed by this error because, among

other things, he was deprived of a potential jury instruction under the same article.

                                            13
A.     Standard of Review and Applicable Law

       Article 38.22, Section 6 provides that “[i]n all cases where a question is raised as

to the voluntariness of a statement of an accused, the court must make an independent

finding in the absence of the jury as to whether the statement was made under voluntary

conditions.” See TEX. CODE CRIM. PROC. art. 38.22, § 6 (emphasis added); Oursbourn v.

State, 259 S.W.3d 159, 175 (Tex. Crim. App. 2008) (explaining that when a question is

raised regarding the voluntariness of a statement, the trial court should conduct a hearing

outside of the jury’s presence).

       A trial court’s failure to conduct a voluntariness hearing in accordance with Article

38.22 is subject to a harm analysis. See Baiza v. State, 487 S.W.3d 338, 346 (Tex. App.—

Eastland 2016, pet ref’d). “[W]hen only a statutory violation is claimed, the error must be

treated as non-constitutional for the purpose of conducting a harm analysis.” Gray v.

State, 159 S.W.3d 95, 98 (Tex. Crim. App. 2005). Therefore, a violation of Article 38.22

is non-constitutional error subject to review under Texas Rule of Appellate Procedure

44.2(b). See TEX. R. APP. P. 44.2(b); Funes v. State, 630 S.W.3d 175, 183 n.7 (Tex.

App.—El Paso 2020, no pet.) (“A violation of only Article 38.22 amounts to non-

constitutional error.” (citing Woods v. State, 152 S.W.3d 105, 118 (Tex. Crim. App.

2004))).

       In conducting a harm analysis, we assume the defendant’s statement was

involuntary and thus improperly admitted, and we apply Rule 44.2(b) to determine

whether the erroneous admission of the statement calls for reversal of the judgment. See

Kane v. State, 173 S.W.3d 589, 594 (Tex. App.—Fort Worth 2005, no pet.). Under the

applicable standard for non-constitutional error, we must disregard the trial court’s error,

                                            14
if any, “unless it affects the defendant’s substantial rights.” King v. State, 666 S.W.3d 581,

585 (Tex. Crim. App. 2023). A defendant’s substantial rights are affected when the error

has “a substantial and injurious effect or influence in determining the jury’s verdict.” Cook

v. State, 665 S.W.3d 595, 599 (Tex. Crim. App. 2023). “A criminal conviction should not

be overturned for non-constitutional error if the appellate court, after examining the record

as a whole, has fair assurance that the error did not influence the jury, or had but a slight

effect.” King, 666 S.W.3d at 585 (quoting Johnson v. State, 967 S.W.2d 410, 417 (Tex.

Crim. App. 1998)).

       We review the entire record—“including any testimony or physical evidence

admitted for the jury’s consideration, the nature of the evidence supporting the verdict,

and the character of the alleged error and how it might be considered in connection with

other evidence in the case”—to ascertain the effect or influence of the wrongfully admitted

evidence on the verdict. Barshaw v. State, 342 S.W.3d 91, 94 (Tex. Crim. App. 2011).

We “may also consider the jury instruction given by the trial judge, the state’s theory,

defensive theories, closing arguments, voir dire, and whether the state emphasized the

error.” Id. The weight of evidence of the defendant’s guilt is also relevant in conducting

the harm analysis under Rule 44.2(b). Neal v. State, 256 S.W.3d 264, 285 (Tex. Crim.

App. 2008). “When the erroneous admission of evidence is cumulative of other properly

admitted evidence proving the same fact, the erroneous admission is harmless.” Eggert

v. State, 395 S.W.3d 240, 244 (Tex. App.—San Antonio 2012) (citing Brooks v. State,

990 S.W.2d 278, 287 (Tex. Crim. App. 1999)); Cook, 665 S.W.3d at 600 (“The erroneous

admission of evidence ‘will not result in reversal when other such evidence was received

without objection, either before or after the complained-of ruling.’” (quoting Leday v. State,

                                             15
983 S.W.2d 713, 718 (Tex. Crim. App. 1998)));Valle v. State, 109 S.W.3d 500, 509 (Tex.

Crim. App. 2003) (error in the admission of evidence is harmless when the same evidence

is offered without objection); Mosley v. State, 983 S.W.2d 249, 258 (Tex. Crim. App. 1998)

(op. on reh’g) (noting that similar evidence can render erroneously admitted evidence

harmless); Sandone v. State, 394 S.W.3d 788, 794 (Tex. App.—Fort Worth 2013, no pet.)

(applying the same principle to an alleged error in admitting evidence under Article 38.22).

B.     Harm Analysis

       1.     Cumulative Evidence

       Assuming, without deciding, that the trial court erred by failing to conduct a

voluntariness hearing concerning Pena’s statement, we conclude that the record does

not establish the requisite level of harm from that error.

       Before the contents of Pena’s statement were admitted and disclosed, the jury

heard testimony from multiple witnesses concerning the events of September 29, 2023.

Ortiz testified that she drove Pena to Advance Auto Parts to purchase lug nuts for her van

that morning since Pena agreed to help fix her van. She further testified that Pena was

the last person in possession of her van that day.

       Herrera testified that he observed a van in his neighborhood, and after his neighbor

reported a crime, he observed the same van again on September 29, 2023. Herrera

further testified that Pena was the driver of the van, that the van had a flat tire, and that

he followed Pena in his own vehicle. This chase was recorded on Officer Diaz’s dash

camera, which was admitted into evidence and published to the jury. Officer Diaz also

confirmed the details of the chase and testified he observed the van was traveling on a

flat tire. Further, he testified that an aggravated robbery occurred by Juan Balli and South

                                             16
Jackson Road approximately ten minutes after he stopped Herrera.

       Cortez confirmed that the van stopped in a brush area near the canal behind Juan

Balli Road; however, the van was still running. Detective Rosales found the van near the

canal and noted it was parked in an unusual location and missing a tire. Detective Rosales

also testified that there was a receipt, a smoking pipe, and a footprint in the brush area

“running from the van going east towards where the victim’s vehicle was at on Juan Balli

Road,” where the aggravated robbery occurred.

       Furthermore, Blanca testified that she saw a blue vehicle and “thought it had

mechanic[al] problems,” but when she passed the blue vehicle, she “saw a person being

beat up.” She also stated that the two assailants left the scene in the blue vehicle, and

she tried to follow the vehicle and gather as much information as possible before calling

911 and returning to Aguirre to render aid. Aguirre confirmed that he was seventy-seven

years old when this incident took place. He stated he was driving his vehicle when he was

approached by two men and one of the men began hitting him.

       Detective Castillo testified that he arrived at the scene, made contact with Aguirre,

and noticed the van was missing a tire. He found a pipe and receipt dated earlier that

same day in the van. Detective Castillo located Pena hiding behind a door in his common

law wife’s home. See Simpson v. State, 181 S.W.3d 743, 754 (Tex. App.—Tyler 2005,

pet. ref’d) (evidence of hiding or fleeing from police evinces a consciousness of guilt). He

stated that Aguirre’s car was located in Edinburg as well. Detective Castillo also confirmed

that Pena’s brother-in-law, Jesus Limas, was another suspect in the aggravated robbery

and that Limas’s statement was consistent with Pena’s statement.

       After considering the entire record, we find that Pena’s statement was largely

                                            17
cumulative of all the properly admitted evidence considered by the jury as described

above. See Eggert, 395 S.W.3d at 244. The jury was able to consider all such evidence

and could have made reasonable inferences concerning Pena’s involvement in the

aggravated robbery, as a principal or a party. See Gardner v. State, 306 S.W.3d 274, 285

(Tex. Crim. App. 2009) (“[T]he State may prove the defendant’s identity and criminal

culpability by either direct or circumstantial evidence, coupled with all reasonable

inferences from that evidence.”). In addition, we cannot say that the prosecutor heavily

relied on or emphasized Pena’s statement in its opening or closing arguments. See

Barshaw, 342 S.W.3d at 94; Ramos v. State, 273 S.W.3d 356, 360–61 (Tex. App.—San

Antonio 2008, pet. ref’d). The prosecutor did not reference Pena’s statement to police

during his opening statement to the jury. Moreover, the prosecutor did not primarily focus

on Pena’s statement in its closing but instead summarized all of the other admitted

evidence and only briefly referenced his statement. See Ramos, 273 S.W.3d 356 at 362

(finding error in admitting a confession harmless when “the prosecutor did not emphasize

the confession as the linchpin to conviction but rather as evidence to suggest the jury

should rely on the testimony of the witnesses”). In this regard, we do not find that Pena

suffered harm when the jury heard his video-recorded statement.

       2.     Lack of Jury Instruction

       Pena additionally claims that the trial court’s failure to conduct a voluntariness

hearing harmed him because he was deprived of a potential jury instruction under Article

38.22. Article 38.22 provides that a trial court may instruct a jury on the voluntariness of

a defendant’s statement. See TEX. CODE CRIM. PROC. art. 38.22, §§ 6, 7. Article 38.22,

Section 6 provides that when a trial court independently finds in the absence of the jury

                                            18
that a defendant’s statement is voluntary, “evidence pertaining to such matter may be

submitted to the jury and it shall be instructed that unless the jury believes beyond a

reasonable doubt that the statement was voluntarily made, the jury shall not consider

such statement for any purpose nor any evidence obtained as a result thereof.” Id. art.

38.22, § 6. In addition, Article 38.22, Section 7 provides that “[w]hen the issue is raised

by the evidence, the trial judge shall appropriately instruct the jury, generally, on the law

pertaining to such statement.” Id. art. 38.22, § 7. But to trigger the trial court’s duty to

include a voluntariness instruction of a defendant’s statement under either section, the

record must contain some evidence that such a statement was involuntary. See id. art.

38.22, §§ 6, 7; Vasquez v. State, 225 S.W.3d 541, 545 (Tex. Crim. App. 2007) (a

defendant is required to present evidence to the jury from which a reasonable jury could

conclude that his statement was involuntary). 3

        Pena claims that since the trial court failed to conduct a voluntariness hearing

concerning his recorded statement, he was deprived of a potential jury instruction

afforded to him under Article 38.22. See TEX. CODE CRIM. PROC. art. 38.22, § 6, 7. The

State responds that Pena did not introduce any evidence concerning voluntariness which

contradicted Detective Castillo’s testimony that Pena was not intoxicated at the time of

the interview. We agree. Pena correctly points out that the trial court must submit the

issue to the jury when evidence that a defendant’s statement was given involuntarily is

raised at trial. See id.; Vasquez, 225 S.W.3d at 545. However, other than his general

voluntariness instruction argument, Pena does not explain which evidence, if any, exists


        3 Conversely, a trial court is required to hold a hearing under Article 38.22, Section 6, whenever “a

question is raised” as to voluntariness, even if there is no evidence of involuntariness. TEX. CODE CRIM.
PROC. art. 38.22, § 6.
                                                    19
from which the jury could have reasonably concluded that his recorded oral statement

was involuntary, and we have found none. See Vasquez, 225 S.W.3d at 545. Rather, the

recording of Pena’s oral statement in Spanish, reviewed in conjunction with the admitted

translation, shows that Detective Castillo informed Pena of his rights in accordance with

Article 38.22 and Miranda; that Pena acknowledged that he understood his rights; and

that, without any apparent coercion, Pena agreed to waive his rights and to discuss his

alleged offense with Detective Castillo and his colleague. See TEX. CODE CRIM. PROC. art.

38.22, §§ 2(a), 3(a)(2); Miranda v. Arizona, 384 U.S. 436 (1966).

       The record indicates that Pena’s counsel suggested his statement was involuntary

by questioning Detective Castillo regarding how he knew that Pena was not on drugs at

the time he provided his statement. Detective Castillo answered the question and further

testified that he would not have conducted an interview of Pena if he suspected Pena was

under the influence of any substances. There is no evidence in the record before us

indicating that Pena was intoxicated when he provided his statement.

       Because there is no evidence indicating that Pena’s recorded oral statement was

involuntary, Pena was not entitled to a voluntariness instruction in the jury charge,

regardless of whether the trial court held a voluntariness hearing outside the presence of

the jury under Article 38.22, section 6. See Oursbourn, 259 S.W.3d at 175; Vasquez, 225

S.W.3d at 545–46 (“Under [A]rticle 38.22, there is no error in refusing to include a jury

instruction where there is no evidence before the jury to raise the issue. Some evidence

must have been presented to the jury that the defendant’s confession was not given

voluntarily.”) (internal citations omitted). Thus, we cannot conclude that the trial court’s

failure to hold such a hearing caused Pena to suffer harm in this manner.

                                            20
       Based on the foregoing reasons, we have a fair assurance that any error in

allowing the jury to consider Pena’s recorded statement without an Article 38.22

instruction was harmless or had but a slight effect on the jury’s verdict. See King, 666

S.W.3d at 585. We overrule Pena’s first issue.

                       III.   INEFFECTIVE ASSISTANCE OF COUNSEL

A.     Standard of Review and Applicable Law

       The Sixth Amendment provides that “[i]n all criminal prosecutions, the accused

shall enjoy the right . . . to have the Assistance of Counsel for his defence.” U.S. CONST.

amend. VI. “An appellate court looks to the totality of the representation and the particular

circumstances of each case in evaluating the effectiveness of counsel.” Lynch v. State,

318 S.W.3d 902, 904 (Tex. App.—San Antonio 2010, pet. ref’d) (citing Thompson v.

State, 9 S.W.3d 808, 813 (Tex. Crim. App. 1999)). “[A] person claiming ineffective

assistance of counsel must show that (1) counsel’s performance was deficient, and

(2) the deficient performance prejudiced the defense.” Ex parte Covarrubias, 665 S.W.3d

605, 609 (Tex. Crim. App. 2023) (citing Strickland v. Washington, 466 U.S. 668, 687

(1984)).

       To satisfy the first prong, deficiency is established by “showing that counsel’s

performance fell below an objective standard of reasonableness under prevailing

professional norms, considering the facts of the case viewed from counsel’s perspective

at the time of the representation.” Ex parte Garza, 620 S.W.3d 801, 808–09 (Tex. Crim.

App. 2021). The Texas Court of Criminal Appeals has routinely held that “claims of

ineffective assistance of counsel are generally not successful on direct appeal and are

more appropriately urged in a hearing on an application for a writ of habeas corpus.”

                                             21
Lopez v. State, 343 S.W.3d 137, 143 (Tex. Crim. App. 2011). “On direct appeal, the record

is usually inadequately developed and ‘cannot adequately reflect the failings of trial

counsel’ for an appellate court ‘to fairly evaluate the merits of such a serious allegation.’”

Id. (quoting Bone v. State, 77 S.W.3d 828, 833 (Tex. Crim. App. 2002)). In the absence

of an explanation in the record for why counsel’s conduct allegedly fell below this objective

standard, we will “assume a strategic motivation if any can possibly be imagined” and not

conclude that the challenged conduct constituted deficient performance unless the

conduct was “so outrageous that no competent attorney would have engaged in it.” Garcia

v. State, 57 S.W.3d 436, 440 (Tex. Crim. App. 2001); see Ex parte Westerman, 570

S.W.3d 731, 731 n.1 (Tex. Crim. App. 2019).

       The appellant bears the burden to prove ineffective assistance of counsel by a

preponderance of the evidence. Lynch, 318 S.W.3d at 904; Perez v. State, 689 S.W.3d

369, 381 (Tex. App.—Corpus Christi–Edinburg 2024, no pet.). We employ a strong

presumption that counsel’s conduct fell within the wide range of reasonable, professional

assistance and that it was motivated by a sound trial strategy. Strickland, 466 U.S. at 689;

Hart v. State, 667 S.W.3d 774, 781 (Tex. Crim. App. 2023). The presumption of a sound

trial strategy generally cannot be overcome absent evidence in the record of the

attorney’s reasons for his conduct. Mata v. State, 226 S.W.3d 425, 430 (Tex. Crim. App.

2007) (“The lack of a clear record usually will prevent the appellant from meeting the first

part of the Strickland test.”); Davis v. State, 533 S.W.3d 498, 510 (Tex. App.—Corpus

Christi–Edinburg 2017, pet. ref’d). If there is any basis for concluding that counsel’s

conduct was strategic, then further inquiry is improper. Lopez, 343 S.W.3d at 143. We

consider “the reasonableness of counsel’s actions at the time, rather than viewing such

                                             22
actions through the benefit of hindsight.” Hart, 667 S.W.3d at 782.

      To establish prejudice under the second prong, the appellant must show “a

reasonable probability that, but for counsel’s unprofessional errors, the result of the

proceeding would have been different.” Strickland, 466 U.S. at 694. “A reasonable

probability is a probability sufficient to undermine confidence in the outcome.” Id. “An

appellant’s failure to satisfy one prong of the Strickland test negates a court’s need to

consider the other prong.” Williams v. State, 301 S.W.3d 675, 687 (Tex. Crim. App. 2009).

Accordingly, failure to make a showing under either Strickland prong defeats a claim for

ineffective assistance. Perez v. State, 310 S.W.3d 890, 893 (Tex. Crim. App. 2010) (citing

Thompson, 9 S.W.3d at 813).

B.    Analysis

      Pena first argues that he was denied effective assistance because his trial counsel

never requested to have an actual hearing outside the presence of the jury prior to his

trial to determine the voluntariness of his statement under Article 38.22, Section 6.

Contrary to Pena’s contentions, his counsel did inform the trial court of the voluntariness

issue when his counsel stated: “[I]f you read the statute, it says when the question of

voluntariness is—of a statement of [an] accused, the [c]ourt must make an independent

finding in the absence of the jury.” Regardless, a specific request for a hearing was not

necessary and raising the issue of voluntariness before the trial court admitted Pena’s

statement was sufficient to invoke the issue of voluntariness under Article 38.22, Section

6. See TEX. CODE CRIM. PROC. art. 38.22, § 6; Oursbourn, 259 S.W.3d at 175 (a “‘question

is raised’ when the trial judge is notified by a party or raises on his own an issue about

the voluntariness of the confession” and once raised, the trial court has a duty to conduct

                                            23
a hearing outside of the jury’s presence). We conclude Pena’s trial counsel was not

deficient in this regard. See Ex parte Garza, 620 S.W.3d at 808–09.

      Pena also asserts that his trial counsel failed to “inform” the trial court about his

motion to suppress. However, the failure of trial counsel to file or pursue a motion to

suppress is not per se ineffective assistance of counsel. See Loza v. State, 659 S.W.3d

491 (Tex. App.—Eastland 2023, no pet.); see also Ware v. State, No. 07-07-0076-CR,

2008 WL 3863480, at *2 (Tex. App.—Amarillo Aug. 20, 2008, no pet.) (mem. op., not

designated for publication) (recognizing the “failure to file or pursue pretrial motions

generally does not per se demonstrate ineffective assistance of counsel”). To prevail on

an ineffective assistance of counsel claim concerning a motion to suppress, Pena must

show by a preponderance of the evidence that the motion would have been granted and

that the remaining evidence would have been insufficient to support his conviction. See

Wert v. State, 383 S.W.3d 747, 753 (Tex. App.—Houston [14th Dist.] 2012, no pet.) (citing

Jackson v. State, 973 S.W.2d 954, 956–57 (Tex. Crim. App. 1998). In his motion to

suppress, Pena argued in part that he was “under coercive custodial interrogation” and

that his statement was obtained in violation of Article 38.22. See TEX. CODE CRIM. PROC.

art. 38.22. Pena does not direct us to any evidence concerning police coercion or that his

statement was otherwise involuntary, nor have we located any such evidence. As

indicated above, the record shows that Pena was informed of his rights in accordance

with Article 38.22 and Miranda, acknowledged that he understood his rights, and agreed

to speak with Detective Castillo. See id. art. 38.22, §§ 2(a), 3(a)(2); Miranda, 384 U.S.

436. Accordingly, Pena failed to establish that his motion to suppress would have been

granted. See Wert, 383 S.W.3d at 753. Even if we assume that his statement should have

                                           24
been suppressed, he fails to show that the remaining evidence properly admitted at trial

would have been insufficient to support his conviction as we have found, supra. See id.

Thus, Pena has failed to establish his counsel was ineffective for failing to inform the trial

court about his motion to suppress.

       Pena finally complains that his trial counsel failed to request a jury instruction

concerning the voluntariness of his recorded statement. As previously discussed,

because Pena did not present any evidence that his statement was involuntary, nor have

we found any, the trial court did not err by failing to include such an instruction. See

Oursbourn, 259 S.W.3d at 175; Vasquez, 225 S.W.3d at 545–46. Accordingly, Pena fails

to show that his trial counsel’s performance fell below an objective standard of

reasonableness by failing to request a jury instruction that he was not afforded. See Ex

parte Covarrubias, 665 S.W.3d at 609; Ex parte Garza, 620 S.W.3d at 808–09; see also

Young v. State, 991 S.W.2d 835, 839 (Tex. Crim. App. 1999) (en banc) (holding that

appellant’s counsel was not deficient under the first prong of the Strickland test for failing

to request an instruction that appellant was not entitled to receive); Cummings v. State,

401 S.W.3d 127, 132 (Tex. App.—Houston [14th Dist.] 2011, pet. ref’d) (“Appellant’s trial

counsel’s failure to request an instruction to which appellant was not entitled is not

ineffective assistance.”). Therefore, we overrule Pena’s second issue.




                                             25
                                   IV.    CONCLUSION

       We affirm the trial court’s judgment.

                                                       CLARISSA SILVA
                                                       Justice

Do not publish.
TEX. R. APP. P. 47.2(b).

Delivered and filed on the
9th day of April, 2026.




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