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Click here for the full text of this decision FACTS:The appellant was convicted in November 2003 of capital murder. The trial court sentenced appellant to death. HOLDING:Affirmed. The appellant argues that his consular notification rights under the Vienna Convention were violated. The appellant argues that, because he is a Salvadoran citizen, the police were required to notify him without delay that he had a right to seek assistance from the Salvadoran consulate and that the police were required to inform the Salvadoran consulate without delay of his detention so that it could provide consular assistance. He complains that the police failed to provide such notice without delay. This court has previously held that the Vienna Convention does not create the type of personal rights the violation of which can be remedied in Texas criminal courts by the suppression of evidence under Texas Code of Criminal Procedure Article 38.23. The 5th U.S. Circuit Court of Appeals recently reiterated the position of many American jurisdictions in concluding that “the Vienna Convention does not confer individually enforceable rights.” Cardenas v. Dretke, 405 F.3d 244 (5th Cir. 2005). The appellant argues that this court’s prior holding should be reconsidered in light of recent International Court of Justice decisions in Federal Republic of Germany v. United States (LaGrand), 2001 I.C.J. 104 (June 27, 2001), and Mexico v. United States (Avena), 2004 I.C.J. 128 (March 31, 2004). In these two cases, the ICJ interpreted Article 36 of the Vienna Convention as giving detained foreign nationals individual rights that the foreign national’s home country could invoke in a proceeding before the ICJ. Even assuming that American state and federal courts are bound by LaGrand and Avena or that Article 36 does confer personal rights, appellant has not shown: 1. that any of the rights he claims under the Vienna Convention were violated; or 2. that any purported treaty violation either caused him to do anything he would not otherwise have done or affected the fairness of his trial in any way. The record indicates that when appellant’s attorneys and investigator sought assistance from the Salvadoran consulate, they were rebuffed. There is no evidence in the record as to what assistance the Salvadoran consulate might have provided had the police notified the consulate sooner than they did. The only issue is whether the police notified the Salvadoran consulate without delay. Article 36 does not define the phrase “without delay.” The Avena court concluded that the Article 36 notification rights “cannot be interpreted to signify that the provision of such information must necessarily precede any interrogation, so that the commencement of interrogation before the information is given would be a breach of Article 36.” The court examines the manner in which the U.S. Department of State interprets the phrase “without delay” in Article 36, both as that article applies to Americans detained in a foreign country and foreigners detained in the United States. The Consular Notification and Access booklet states that a foreign national should be notified “without delay” of his right to consular assistance. The Department of State would normally expect notification to consular officials to have been made within 24 hours or certainly within 72 hours. The State Department tells its overseas consular officials to lodge a diplomatic protest if detaining authorities in a foreign country do not notify the consulate within 72 hours of an American citizen’s arrest. The court notes that Texas criminal procedure laws have used the phrase “without delay” or “without unnecessary delay” in many instances, including when an arrestee is entitled to be taken before a magistrate. Article 15.17 of the Code of Criminal Procedure states that “the person making the arrest or the person having custody of the person arrested shall without unnecessary delay, but not later than 48 hours after the person is arrested, take the person arrested or have him taken before some magistrate of the county where the accused was arrested.” The purpose of this provision is to comply with constitutional and statutory requirements that an accused person be promptly and fully informed of the accusation against him, as well as his legal rights, including his Miranda rights and his right to reasonable bail. This requirement is similar to the Fourth Amendment requirement that a person arrested without warrant be given a prompt judicial determination of probable cause to permit further detention. In County of Riverside v. McLaughlin, 500 U.S. 44 (1991), the U.S. Supreme Court held that a jurisdiction that provides for such probable cause hearings within 48 hours is sufficient to survive “systemic challenges” to its system. The court concludes that, in faxing the required notification within 48 hours of appellant’s arrest on the probation revocation warrant, the police notified the Salvadoran consulate without delay. The court holds that Texas authorities complied with their obligations under Article 36 of the Vienna Convention. The trial court did not err in refusing to suppress appellant’s videotaped statements, in declining to give any article 38.23 jury instruction concerning the Vienna Convention, or in refusing to reform appellant’s death sentence to a sentence of life imprisonment. The court overrules appellant’s remaining points of error. OPINION:Cochran, J., Keller, P.J., Price, Womack, Johnson, Keasler, Hervey and Holcomb, JJ., joined. Meyers, J., not participating.

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