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Click here for the full text of this decision FACTS:On Aug. 30, 2003, Angel Resendez and a group of friends, including Amanda Garza, drank a considerable amount of alcohol at a nightclub. After the nightclub closed, the group went to a hotel and continued drinking. Resendez called his friend Steve Perez, because he and Garza needed a ride home. By the time Perez arrived, Garza was extremely intoxicated and got into the backseat of Perez’s car. Perez then climbed into the backseat and proceeded to have sex with Garza while Resendez drove. After several minutes, Garza began screaming and striking Perez and she told Resendez to pull over and let her out, which he did. Garza got out of the car, began to walk away and shouted obscenities at Perez, threatening to report the assault to the police. Resendez gave two different statements to police regarding the events that evening. In the first statement, Resendez claimed that he insisted on walking Garza to his home but Perez did not want her to tell anyone what happened. Perez followed Resendez and Garza in the car for a few feet, then got out of the car and shot Garza once in the head. Perez threatened to shoot Resendez and told him to get in the car. Perez then shot Garza three more times. Resendez claimed to have no prior knowledge of a gun in the car. In the second statement, however, Resendez claimed he did know about the gun, because Perez told Resendez to remove the gun from the glove compartment and place it under the seat, so that if they were stopped by police on the way home, the police would not see the gun when they retrieved their proof of insurance. In the second statement, Resendez grabbed the gun and shot Garza once in the head. Perez then took the gun from Resendez and shot Garza three more times. Resendez later claimed he changed his story the second time because Perez and Perez’s friends threatened him and he thought that if he took partial responsibility for what happened, his family would be protected. Appellant gave his first videotaped statement on Aug. 31, 2003. Before this first videotaped statement, police gave Resendez Miranda warnings. After the first statement, Resendez agreed to stage a recorded phone conversation with Perez. Police then became suspicious of Resendez’s involvement because Perez implicated appellant in the shooting. On Sept. 2, appellant agreed to take a polygraph test, which he took and failed. Police then questioned and videotaped Resendez a second time and he confessed to shooting Garza. During the second videotaped statement, Resendez was not given any Miranda warnings. Police arrested Resendez later that day for Garza’s murder. Resendez filed two motions to suppress his second unwarned statement, once on Sept. 19, 2003, and again on Oct. 29, 2004. After filing the second motion to suppress but before his trial, appellant testified against Perez at Perez’s trial on Nov. 3, 2004. Appellant testified about what he said to police in his two statements. Appellant testified that the reason he changed his story and admitted shooting Garza was because he felt threatened by Perez but his first statement was factually correct. At the suppression hearing on Nov. 8, appellant argued his second statement should be suppressed because it was not given voluntarily and police did not give him Miranda warnings preceding a custodial interrogation. The state countered that Miranda warnings were not required because the interrogation was not custodial and the statement was given voluntarily. Perez’s and appellant’s trials both took place in the same trial court and were presided over by the same judge. At appellant’s suppression hearing, the trial court took judicial notice of appellant’s testimony in Perez’s trial. The trial court denied appellant’s motion to suppress. Resendez then pleaded guilty. The trial court assessed punishment at 99 years of confinement. HOLDING:Reversed and remanded. First, the court held that Resendez did not waive the right to appeal the denial of his motion to suppress, because punishment had not yet been assessed when Resendez made his plea. The court found that the trial court erred when it took judicial notice of appellant’s prior testimony. Resendez’s prior testimony, the court stated, did not contain adjudicative facts capable of accurate and ready determination to be used by the trial court to decide whether appellant’s second statement was voluntary or whether appellant was in custody and Miranda warnings were required. Then the court examined whether lack of Miranda warnings mandated suppression of the second confession. Resendez, the court stated, had argued to the trial court that he voluntarily went to the police station to talk to police, but at some point his interrogation turned custodial and was no longer voluntary, requiring police to give appellant Miranda warnings. The court noted the sequence of events that led to the second confession. The police officers asked appellant to take a polygraph test, which he took and failed, the court stated. Agreeing to answer more questions, Resendez eventually stated for the first time that he was the first one to shoot the complainant. The existence of probable cause, the officer’s failure to tell appellant that he could leave and these other circumstances would lead a reasonable person in Resendez’s position to believe that he was under restraint to the degree associated with an arrest after admitting that he was the first one to shoot the complainant. Because the interrogation of appellant was custodial from the point after which appellant admitted he shot the complainant, the court held that the trial court erred in denying appellant’s motion to suppress this part of Resendez’s statement based on Resendez’s failure to receive the required warnings from the law enforcement officers or waive his rights. In reversing the trial court and remanding the case for a new trial, the court found that the trial court’s erroneous denial of Resendez’s motion to suppress influenced Resendez’s decision to plead guilty. OPINION:Anderson, J.; Anderson, Edelman and Frost, J.J.

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