Luis Gerardo Lugo Pena v. the State of Texas

Summary

The Texas Thirteenth Court of Appeals affirmed Luis Gerardo Lugo Pena’s aggravated-robbery conviction and fifteen-year sentence. Pena argued that the trial court failed to conduct a voluntariness hearing under Texas Code of Criminal Procedure article 38.22 and that he received ineffective assistance of counsel. The court assumed, without deciding, that the failure to conduct a hearing was error but concluded that any error was harmless because the statement was cumulative of other evidence and was not heavily emphasized.

Holdings

1. Assuming the trial court erred by failing to conduct the required voluntariness hearing, the error was nonconstitutional and harmless because Pena's statement was largely cumulative of properly admitted evidence, the State did not substantially emphasize the statement, and the record provided fair assurance that the error had no substantial and injurious effect on the verdict.
2. Pena was not entitled to an Article 38.22 voluntariness instruction because the record contained no evidence from which a reasonable jury could conclude that his recorded statement was involuntary.
3. Pena failed to establish ineffective assistance because counsel was not deficient in raising the voluntariness issue, Pena did not show that a suppression motion would have been granted or that the remaining evidence was insufficient, and counsel was not deficient for failing to request an instruction to which Pena was not entitled.

Questions Presented

1. Whether the trial court erred by failing to conduct an independent hearing outside the jury's presence on the voluntariness of Pena's custodial statement under Texas Code of Criminal Procedure article 38.22, section 6, and whether any error was harmful.
2. Whether the failure to conduct the hearing deprived Pena of an Article 38.22 voluntariness instruction.
3. Whether trial counsel rendered ineffective assistance by failing to obtain or pursue an Article 38.22 hearing, failing to pursue the motion to suppress, and failing to request a voluntariness instruction.

Disposition

affirmed