Opinion
No. 04-04-00058-CR
Delivered and Filed: March 2, 2005. DO NOT PUBLISH.
Appeal from the 216th Judicial District Court, Kendall County, Texas, Trial Court No. 4037, Honorable Stephen B. Ables, Judge Presiding. Affirmed.
Sitting: Catherine STONE, Justice, Sarah B. DUNCAN, Justice, Karen ANGELINI, Justice.
MEMORANDUM OPINION
Following the trial court's denial of his motion to suppress, appellant, Jimmy David, Jr., pled guilty to aggravated sexual assault and was sentenced to life imprisonment. David raises four issues on appeal. We affirm the trial court's judgment.
Motion to Suppress
In his first three issues, David contends the trial court erred in denying his motion to suppress his written confession. We review a trial court's suppression ruling under an abuse of discretion standard. Balentine v. State, 71 S.W.3d 763, 768 (Tex.Crim.App. 2002). Under this standard, we view "the evidence in the light most favorable to the trial court's ruling," affording almost total deference to findings of historical fact supported by the record. Guzman v. State, 955 S.W.2d 85, 89 (Tex.Crim.App. 1997). We review the court's application of the law de novo. Id. In his first issue, David contends the trial court erred in finding he was not in custody when he gave his oral and written confessions. David argues that once he verbally confessed his DNA might be found on the victim, probable cause existed to arrest him, and he became the focus of the police investigation. David contends that the police questioning then rose to the level of a custodial interrogation, triggering his Miranda rights. In his third issue, David complains that when he received the Miranda warnings that were contained on the paper on which he wrote his confession, he did not possess the reading comprehension necessary to understand them. In addition, David argues his written statement was inadmissible as a result of the "question-first" tactic used by law enforcement officials; a tactic that has been condemned by the United States Supreme Court. See Missouri v. Seibert, 124 S. Ct. 2601 (2004) (holding that when Miranda warnings are inserted in the midst of coordinated and continuing custodial interrogation, they are likely to mislead and "deprive a defendant of knowledge essential to his ability to understand the nature of his rights and the consequences of abandoning them"). David insists that his rights were not safeguarded and that article 38.22 of the Texas Code of Criminal Procedure required the exclusion of his statement at trial. It is well settled that the issuance of a defendant's Miranda rights and the protections of article 38.22 of the Code of Criminal Procedure do not apply to statements made during non-custodial interrogations. See Tex. Code Crim. Proc. Ann. art. 38.22, § 5 (Vernon 1979); Stone v. State, 583 S.W.2d 410, 413 (Tex.Crim.App. 1979). They do not apply to voluntary statements resulting from non-custodial interrogation. Lam v. State, 25 S.W.3d 233, 239 (Tex.App.-San Antonio 2000, no pet.). Custodial interrogation is questioning initiated by law enforcement after a person has been taken into custody or otherwise deprived of his freedom in any significant way. Cannon v. State, 691 S.W.2d 664, 671 (Tex.Crim.App. 1985), cert. denied, 474 U.S. 1110 (1986). The United States Supreme Court has delineated a two-part inquiry to determine whether a suspect is in custody: 1) what were the circumstances surrounding the interrogation; and 2) under those circumstances would a reasonable person feel he or she was not free to terminate the questioning and leave. See Thompson v. Keohane, 516 U.S. 99, 112 (1995); Stansbury v. California, 511 U.S. 318, 322 (1994). In Stansbury, the Supreme Court made it clear that the "determination of custody depends on the objective circumstances of the interrogation, not on the subjective views harbored by either the interrogating officers or the person being questioned." 511 U.S. at 323. Hence the subjective views of both the officers and the suspect are irrelevant to the question of whether the suspect is in custody, except to the extent those views are manifested by the words or actions of the officers and that manifestation would lead a reasonable person to believe he was not free to leave. Stansbury, 511 U.S. at 325. The Texas Court of Criminal Appeals has outlined four general situations which may constitute custody: 1) when the suspect is physically deprived of his freedom of action in a significant way; 2) when a law enforcement officer tells the suspect he cannot leave; 3) when a law enforcement officer creates a situation that would lead a reasonable person to believe that his freedom of movement has been significantly restricted; and 4) when there is probable cause to arrest and law enforcement officers do not tell the suspect that he is free to leave. Dowhitt v. State, 931 S.W.2d 244, 255 (Tex.Crim.App. 1996). In the first three situations, the restraint on freedom must originate from an arrest and not simply an investigative detention. Id. In the fourth situation, the officer's knowledge of probable cause must be manifested to the suspect, and when viewed in the totality of the circumstances, that manifestation must have been such that it would lead a reasonable person to believe that he was not free to leave. Id. Stationhouse questioning, by itself, does not constitute custody. Id. The trial court conducted a motion to suppress hearing at which Detective Clint Cook and clinical psychologist Caroline Williams testified. Detective Cook testified that he drove to David's apartment to ask him if he would go to the police station to answer questions in relation to a sexual assault that occurred at David's place of employment. Detective Cook was accompanied by another uniformed officer, Lieutenant Kohler. David agreed, and accepted a ride with the officers because David did not own a vehicle. David was not restrained in any way, and Detective Cook explained to David that he was not under arrest. Upon arriving at the police station, a secured facility, David was taken into Detective Cook's office, where the interview was conducted with the door open. While seated in his office, Detective Cook again explained to David that he was not under arrest and was free to leave at any time. The officers proceeded to interrogate David and within twenty minutes, David verbally admitted to the offense of sexual assault. He then agreed to give a written statement, which was contained on paper that contained Miranda warnings. David read and initialed the warnings, and then proceeded to write out his statement. At the hearing, Dr. Williams stated her opinion that being in a situation with armed police officers in a secured area, David was more likely than others to give a statement. Because of the trial court's unique ability to judge the demeanor of the witnesses, we give great deference to its findings of fact, including a finding of whether custodial interrogation occurred. See Garza v. State, 34 S.W.3d 591, 593 (Tex.App.-San Antonio 2000, pet. ref'd). The trial court heard the testimony from Detective Cook and Dr. Williams, and was unconvinced that David's freedom of movement had been significantly restricted. Although David was in a secured facility with two armed police officers, he was told at least twice that he was free to leave. Even if the officers possessed a subjective belief that David was their prime suspect and there was probable cause to arrest him, this was never conveyed to David. See Stansbury, 511 U.S. at 324 ("It is well settled, then, that a police officer's subjective view that the individual under questioning is a suspect, if undisclosed, does not bear upon the question whether the individual is in custody for purposes of Miranda"). The trial court determined David was not in custody and that Miranda warnings were not required. The court denied David's motion to suppress, and based on the totality of the circumstances, we cannot say that decision was an abuse of discretion. Garza, 34 S.W.3d at 593. David's first and third issues are overruled. In his second issue, David argues that his written statement was procured by police officers through a "question-first" tactic in violation of the Fifth and Fourteenth Amendments of the United States Constitution. See Missouri v. Seibert, 124 S. Ct. 2601, 2611 (2004). The Seibert case is inapplicable to the case at bar. In Seibert, the Supreme Court held that where the defendant is questioned without Miranda warnings and confesses pursuant to a custodial interrogation, any subsequent confessions given with Miranda warnings are inadmissible if the interrogating officers have not taken steps to ensure the suspect understands his pre- Miranda confession could not have been used against him. Id. at 2612-13. Because the evidence at the suppression hearing supported a finding that David was not interrogated pursuant to a custodial interrogation, we overrule David's second issue.New Evidence
In his fourth issue, David contends the trial court erred because it did not permit him to present new evidence about the issue of voluntariness pursuant to article 38.22, section 6, of the Code of Criminal Procedure. Tex. Code Crim. Proc. Ann. art. 38.22, § 6. Article 38.22, section 6, states, in pertinent part:In any case where a motion to suppress the statement has been filed and evidence has been submitted to the court on this issue, the court within its discretion may reconsider such evidence in his finding that the statement was voluntarily made and the same evidence submitted to the court at the hearing on the motion to suppress shall be made a part of the record the same as if it were being presented at the time of trial. However, the state or the defendant shall be entitled to present any new evidence on the issue of the voluntariness of the statement prior to the court's final ruling and order stating its findings. (Emphasis added).Id. The trial court denied David's motion to suppress at the hearing, but did not file any findings of fact or conclusions of law. Subsequent to the filing of David's brief, we abated this cause to the trial court to enter findings of fact and conclusions of law as required by article 38.22 of the Code of Criminal Procedure. Id. The trial court's findings of fact and conclusions of law have now been included in the record before us. David argues that prior to entering its findings of fact, the trial court did not afford him the opportunity to present new evidence on the issue of voluntariness. The record does not reflect that David ever filed any requests to present additional evidence, or that the trial court refused to hear new evidence. Therefore, we overrule David's fourth issue. Having overruled David's issues on appeal, we affirm the trial court's judgment.