FROM THE 331ST DISTRICT COURT OF TRAVIS COUNTY
NO. D-1-DC-15-300095 , THE HONORABLE DAVID CRAIN, JUDGE PRESIDING MEMORANDUM OPINION
A jury found appellant Shawn Gant-Benalcazar guilty of capital murder for killing Kathy Blair while burglarizing her home. See Tex. Penal Code § 19.03(a)(2). The State did not seek the death penalty, and the trial court assessed the mandatory punishment of life imprisonment without parole. See id. § 12.31(a)(2); Tex. Code Crim. Proc. art. 37.071, § 1(a). On appeal, appellant challenges the trial court's denial of his motion to suppress his incriminating statements to police and complains about alleged error in the jury charge caused by the trial court's denial of his requested jury-charge instructions. We affirm the trial court's judgment of conviction.
Because appellant does not challenge the sufficiency of the evidence supporting his conviction, we provide only a general overview of the facts of the case. We provide additional facts as necessary to advise the parties of the Court's decision and the basic reasons for it. See Tex. R. App. P. 47.1, 47.4.
Joseph Harris found his mother, Kathy Blair, dead on the floor of her bedroom in their home. The ensuing police investigation indicated that Blair had been killed during the burglary of her home, during which some of her jewelry had been taken. In the course of their investigation, police detectives Kerry Scanlon and Derrick Israel developed Tim Parlin as a suspect. After Parlin's alibi proved false, Detective Israel confronted Parlin about Blair's murder. Parlin denied killing Blair and implicated appellant, whom, the evidence showed, Parlin had met a few months before the murder through his nephew who was dating appellant's sister. Because they were aware of Parlin's criminal history, the detectives did not believe Parlin's claim that appellant was responsible for Blair's death and felt that Parlin was the murderer. The prosecutor's office, however, required the detectives to eliminate appellant as a suspect before pursuing a capital murder charge against Parlin for Blair's death.
The evidence at trial reflected that Parlin had a connection to the Blair home (he had been hired to do work on Blair's backyard); that he had provided a false alibi to police; that he had pawned jewelry on the same day as Blair's murder; that the car he was driving (a Camry on loan from his sister) was consistent with a car shown in an FLIR (or "forward looking infrared") video recording taken by one of Blair's neighbors the night of the murder; and that the Camry had bloodstains on the passenger seat and floorboard, which DNA analysis showed was Blair's blood. The detectives were also familiar with Parlin's criminal history, which included multiple burglaries of a habitation.
Detective Israel called appellant, who lived in Galveston, and explained the situation to him—that Parlin had implicated him in a murder and that the detectives needed to eliminate him as a suspect as quickly as possible. Appellant agreed to meet with the detectives, expressing that he was eager to cooperate with the investigation. The detectives drove to Galveston and met with appellant that evening at the Galveston police station. They talked with him in the witness-interview room (rather than the suspect-interrogation room); the interview lasted approximately five hours. Appellant ultimately admitted that he stabbed Blair in the neck when she woke up while he was burglarizing her home. After appellant gave further corroborating information, the detectives consulted with police superiors and the prosecutor's office and then arrested appellant for capital murder.
Appellant was indicted for capital murder. He filed two pretrial motions to suppress the incriminating statements that he made to the detectives when they interviewed him at the Galveston police station. The trial court denied both motions.
The case proceeded to trial. During the seven-day trial, twenty-three witnesses testified for the State; five witnesses, including appellant, testified for the defense. During the charge conference, appellant requested, by a proposed written instruction, a jury instruction on the voluntariness of his statements and "the standard 38.23 instruction." The State objected to the suggested language of appellant's voluntariness instruction, maintaining that it was "extremely specific" and "amount[ed] to a comment on the evidence." The trial court included a general instruction on the voluntariness of statements in the jury charge but declined to use the language that appellant requested. The trial court denied appellant's request for an article 38.23 instruction.
Appellant also requested a jury-charge instruction on the affirmative defense of duress, which the trial court granted, although the trial court used language in the application paragraph of the defense that differed slightly from the language of appellant's requested application paragraph.
The trial court submitted three offenses to the jury: the charged offense of capital murder and the lesser-included offenses of murder and burglary of a habitation. After deliberating approximately two and a half hours, the jury found appellant guilty of capital murder. The trial court imposed the mandatory sentence of life without the possibility of parole. Appellant filed a motion for new trial, which was overruled by operation of law. See Tex. R. App. P. 21.8(c). This appeal followed.
Appellant raises three points of error. In his first point of error, he argues that the trial court abused its discretion by denying his motion to suppress his incriminating statements. In his second and third points of error, he contends that the trial court erred by denying his requested jury-charge instructions concerning the voluntariness of his statements.
Motion to Suppress
In his first point of error, appellant asserts that the trial court erred in denying his motion to suppress his incriminating statements.
We review a trial court's ruling on a motion to suppress evidence for an abuse of discretion, State v. Cortez, 543 S.W.3d 198, 203 (Tex. Crim. App. 2018); Furr v. State, 499 S.W.3d 872, 877 (Tex. Crim. App. 2016), applying a bifurcated standard of review, State v. Arellano, 600 S.W.3d 53, 57 (Tex. Crim. App. 2020); Lerma v. State, 543 S.W.3d 184, 189-90 (Tex. Crim. App. 2018). We afford almost total deference to the trial court's findings of historical fact and determinations of mixed questions of law and fact that turn on credibility and demeanor if they are reasonably supported by the record. Arellano, 600 S.W.3d at 57; Sims v. State, 569 S.W.3d 634, 640 (Tex. Crim. App.), cert. denied, 139 S.Ct. 2749 (2019). We review de novo a trial court's determination of legal questions and its application of the law to facts that do not turn upon a determination of witness credibility and demeanor. Arellano, 600 S.W.3d at 57; Sims, 569 S.W.3d at 640.
In our review, we must view the evidence in the light most favorable to the trial court's ruling. State v. Garcia, 569 S.W.3d 142, 152 (Tex. Crim. App. 2018); Furr, 499 S.W.3d at 877. "The prevailing party is afforded the strongest legitimate view of the evidence and all reasonable inferences that may be drawn from it." Wade v. State, 422 S.W.3d 661, 666-67 (Tex. Crim. App. 2013); State v. Woodard, 341 S.W.3d 404, 410 (Tex. Crim. App. 2011). When the trial court makes express findings of fact, as it did here, we determine whether the evidence, viewed in the light most favorable to the trial court's ruling, supports the fact findings. Garcia, 569 S.W.3d at 153; Johnson v. State, 414 S.W.3d 184, 192 (Tex. Crim. App. 2013). We overturn the trial court's ruling only if it is arbitrary, unreasonable, or "outside the zone of reasonable disagreement." State v. Story, 445 S.W.3d 729, 732 (Tex. Crim. App. 2014); State v. Dixon, 206 S.W.3d 587, 590 (Tex. Crim. App. 2006). Further, we will uphold the ruling if it is correct on any theory of law applicable to the case that is reasonably supported by the record. Arellano, 600 S.W.3d at 57-58; State v. Ruiz, 581 S.W.3d 782, 785 (Tex. Crim. App. 2019).
Ten months after indictment, appellant filed a pretrial motion to suppress in which he sought the suppression of, among other things, "All statements, oral or written, and any actions made by Defendant at the time of and after his apprehension by law enforcement officers or their agents," claiming that
[a]ny statements or actions allegedly made by Defendant were the result of an illegal stop, arrest, and detention, all occurring without reasonable suspicion, probable cause and/or a valid warrant. Further, all statements or actions allegedly made by the Defendant were the result of undue duress and coercion. Further, at the time of the statements or actions, Defendant did not have the mental capacity to knowingly and voluntarily waive his rights. All of the above were in violation
of the Fourth, Fifth, Sixth and Fourteenth Amendments to the United States Constitution; Article I, Section 9 of the Constitution of the State of Texas; and Articles 1.06, 14.01 through 14.06, 15.01 through 15.26, 38.21, 38.22 and 38.23 of the Texas Code of Criminal Procedure.
The generic form motion alleged multiple bases for suppressing all the evidence in the case but contained no specific factual allegations in support of any alleged constitutional or statutory violations. Only at the suppression hearing did appellant explain the legal theory and factual basis for suppressing his statements.
The trial court conducted a hearing on the motion. Appellant asserted that his interview with the detectives was, in reality, a custodial interrogation. He maintained that he was in custody because, after he confessed to stabbing Blair, he was not free to leave. Thus, according to appellant, the incriminating statements that he made to the detectives were inadmissible because he had been subjected to custodial interrogation without being given the requisite constitutional warnings under Miranda and the Fifth Amendment and the requisite statutory warnings under article 38.22 of the Code of Criminal Procedure. Therefore, appellant argued, his statements should be suppressed.
Detective Scanlon and Detective Israel testified at the hearing, and the video recording of the interview along with a transcription of the interview were admitted. At the conclusion of the hearing, the trial court took the suppression issue under advisement. Subsequently, the court denied appellant's motion to suppress, concluding that appellant was not in custody until the detectives placed him under arrest, and issued the following written findings of facts and conclusions of law:
1. On January 9, 2015, Detectives Scanlon and Isreal [sic] traveled to Galveston to interview the defendant in connection with an Austin homicide investigation. The interview took place at the Galveston Police Department.
2. At the time of the interview, the detectives believed that another man, Timothy Parlin, had committed the murder.
3. The defendant voluntarily agreed to the interview and drove himself to the police department. The defendant stated that he wanted to help the detectives with the investigation.
4. At the beginning of the interview, the detectives set out that the defendant was not under arrest and was free to leave. The defendant acknowledged these statements.
5. The interview was conducted in the "family and witness" interview room, rather than the "suspect" interview room.
6. The detectives communicated to the defendant that they suspected another man, Timothy Parlin, of committing the murder.
7. Throughout the interview, the detectives left the defendant in an unlocked interview room by himself, did not guard the door to the interview room, took him to the restroom when he asked, and got him water when he requested it.
8. The defendant was not handcuffed or physically restrained during the interview.
9. The detectives did not exercise a high degree of control over the defendant.
10. Even after the defendant confessed, the detectives left him alone in the unlocked interview room.
11. Until the defendant was placed under arrest, the detectives did not suggest to the defendant that he would be arrested that day or that their earlier statement that he was free to leave at any time was no longer true.
12. The detectives did not believe they had probable cause to arrest the defendant until after he not only confessed to the offense but also made statements that corroborated evidence from the crime scene.
13. After the defendant confessed to the crime and discussed the details of it, and immediately before he was arrested, he asked, "What's going to happen to me?"
14. An officer's knowledge of probable cause must be manifested to the suspect and does not, by itself, establish custody. A person is considered to be in custody when "the manifestation of probable cause, combined with other circumstances, would lead a reasonable person to believe that
he is under restraint to the degree associated with an arrest." Dowthitt v. State, 931 S.W.2d 244, 255 (Tex. Crim. App. 1996).
15. In this case, although a reasonable person would have realized the incriminating nature of the defendant's admissions, the other circumstances of the interview would not lead a reasonable person to believe that he was under restraint to the degree associated with an arrest.
16. The defendant was not in custody until the detectives placed him under arrest.
Four months after the trial court denied his motion to suppress, appellant filed a second motion to suppress in which he again sought the suppression of his incriminating statements to the detectives.
The trial court did not conduct a hearing on the second suppression motion, but the motion was discussed during a subsequent pretrial hearing. Appellant explained to the court that with his second motion, he sought "to exclude everything after [appellant] sa[id] 'I don't want to talk anymore' because that statement was "an indication of his right to remain silent." The court agreed to review the recording again. The court later denied appellant's second motion to suppress and issued additional findings of fact and conclusions of law.
We do not consider that second motion to suppress or those additional fact findings and legal conclusions in our discussion of the complaint appellant raises in his first point of error as they relate to the issue of whether appellant invoked his right to remain silent, which appellant does not raise on appeal.
At trial, when the State offered the recording of appellant's interview with the detectives, appellant asserted the "prior objections that [he] raised pretrial." In addition, he asserted a "new objection" based on Detective Israel's testimony in appellant's prior trial that, according to appellant, differed from his testimony at the suppression hearing. Appellant maintained that the detective's prior trial testimony that he "did not know if [appellant] was free to leave" after he admitted to stabbing Blair differed from the detective's testimony at the suppression hearing that appellant "was free to leave the entire time." Based on that "change in testimony," appellant "object[ed] to anything coming in after the statement when [appellant] said he stabbed Kathy Blair in the neck." The trial court concluded that "the statement should still be admissible," overruled appellant's additional objection, and stood by its previous rulings.
The record reflects that appellant's first trial, conducted six months earlier, ended in a mistrial.
In his first point of error, appellant contends, as he did at the suppression hearing, that his interview with the detectives at the Galveston police station evolved into a custodial interrogation, and therefore, the constitutional and statutory warnings were required. Because they were not given, he argues, his statements should have been suppressed.
The Fifth Amendment privilege against self-incrimination prohibits the government from compelling a criminal suspect to bear witness against himself. Pecina v. State, 361 S.W.3d 68, 74-75 (Tex. Crim. App. 2012) (citing U.S. Const. amend. V); see Miranda v. Arizona, 384 U.S. 436, 444 (1966). In Miranda v. Arizona, the United States Supreme Court crafted safeguards to protect the privilege against self-incrimination in the inherently coercive atmosphere of custodial interrogations. Pecina, 361 S.W.3d at 75 (citing Miranda, 384 U.S. at 441). Texas has incorporated the requirements of Miranda into article 38.22 of the Code of Criminal Procedure, which sets out specific warnings that must be provided to an accused during a custodial interrogation. See Tex. Code Crim. Proc. art. 38.22, §§ 2-3. Both Miranda and article 38.22 require that the accused be properly admonished of certain constitutional rights in order for any statements "stemming from custodial interrogation" to be admissible as evidence against him. See Miranda, 384 U.S. at 444; Tex. Code Crim. Proc. art. 38.22, §§ 2-3.
It is undisputed that appellant was not given the Miranda warnings or the article 38.22 warnings before or during the interview until he was formally arrested by the detectives. See Miranda, 384 U.S. at 444; Tex. Code Crim. Proc. art. 38.22, §§ 2-3. However, "[t]he warnings required by Miranda and article 38.22 are intended to safeguard a person's privilege against self-incrimination during custodial interrogation." Gardner v. State, 306 S.W.3d 274, 294 (Tex. Crim. App. 2009) (emphasis added); see Herrera v. State, 241 S.W.3d 520, 525 (Tex. Crim. App. 2007) (explaining that Miranda warnings "safeguard an uncounseled individual's constitutional privilege against self-incrimination during custodial interrogation"). Thus, the warnings set out in Miranda and article 38.22 are required only when a person is subjected to "custodial interrogation." See Miranda, 384 U.S. at 442-57, 467-79 (stating that warnings apply only to use of statements obtained from suspect during police-initiated "custodial interrogation"); Tex. Code Crim. Proc. art. 38.22, §§ 2-3 (setting out requirements for admissibility of defendant's statement resulting from "custodial interrogation").
Under Miranda, "custodial interrogation" refers to "questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way." 384 U.S. at 444. What constitutes "custodial interrogation" under article 38.22 is the same as it is under Miranda and the Fifth Amendment. Thai Ngoc Nguyen v. State, 292 S.W.3d 671, 677 n.27 (Tex. Crim. App. 2009); see Bass v. State, 723 S.W.2d 687, 691 (Tex. Crim. App. 1986) (construing "custodial interrogation" for purposes of article 38.22 to be consistent with meaning of "custodial interrogation" under Fifth Amendment). Thus, the concerns raised by a failure to comply with Miranda or article 38.22 only arise when the individual is subject to both (1) custody by a law enforcement officer and (2) an interrogation. See Miranda, 384 U.S. at 444; Tex. Code Crim. Proc. art. 38.22, §§ 2-3; see also J.D.B. v. North Carolina, 564 U.S. 261, 270 (2011) ("Because these measures protect the individual against the coercive nature of custodial interrogation, they are required 'only where there has been such a restriction on a person's freedom as to render him "in custody."'" (quoting Stansbury v. California, 511 U.S. 318, 322 (1994))).
A person is in "custody" when he is placed under arrest or if, under all of the objective circumstances, a reasonable person would believe that his freedom of movement has been restricted to the degree associated with a formal arrest. State v. Saenz, 411 S.W.3d 488, 496 (Tex. Crim. App. 2013) (citing Stansbury, 511 U.S. at 322); Dowthitt v. State, 931 S.W.2d 244, 254 (Tex. Crim. App. 1996). The Court of Criminal Appeals has recognized at least four general situations that may constitute custody: (1) the suspect is physically deprived of his or her freedom of action in any significant way, (2) a law enforcement officer tells the suspect that he or she cannot leave, (3) law enforcement officers create a situation that would lead a reasonable person to believe that his or her freedom of movement has been significantly restricted, and (4) there is probable cause to arrest and law enforcement officers do not tell the suspect that he or she is free to leave. Saenz, 411 S.W.3d at 496; Dowthitt, 931 S.W.2d at 255.
"We evaluate 'custody' 'on an ad hoc basis, after considering all of the (objective) circumstances' and apply the 'reasonable person' standard." Herrera, 241 S.W.3d at 532 (quoting Dowthitt, 931 S.W.2d at 254-55). "The 'reasonable person' test presupposes an innocent person." Florida v. Bostick, 501 U.S. 429, 438 (1991); Dowthitt, 931 S.W.2d at 254. "[T]he court must apply an objective test to resolve the ultimate inquiry: was there a formal arrest or restraint on freedom of movement of the degree associated with formal arrest." J.D.B., 564 U.S. at 270 (quoting Thompson v. Keohane, 516 U.S. 99, 112 (1995) (internal quotation marks, alteration, and footnote omitted)); see Yarborough v. Alvarado, 541 U.S. 652, 663 (2004) (explaining that "[c]ourts must examine 'all of the circumstances surrounding the interrogation' and determine 'how a reasonable person in the position of the individual being questioned would gauge the breadth of his or her freedom of action'" (quoting Stansbury, 511 U.S. at 322)). Whether a person is "in custody" is an objective determination; the subjective views of the interrogating officer and the person being questioned are irrelevant. J.D.B., 564 U.S. at 270-71; Stansbury, 511 U.S. at 323; Dowthitt, 931 S.W.2d at 255; see Yarborough, 541 U.S. at 663 (observing that "the initial 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").
At a suppression hearing, the defendant bears the burden to prove that he was in custody before the burden shifts to the State to show compliance with Miranda and article 38.22. Gardner, 306 S.W.3d at 294; Herrera, 241 S.W.3d at 526. The trial court's determination of whether the defendant was "in custody" presents a mixed question of law and fact. Herrera, 241 S.W.3d at 526; see Saenz, 411 S.W.3d at 494 ("The ultimate legal determination of whether an individual was in custody requires an appellate court to take the facts, as assessed for weight and credibility by the trial court, and then to make a legal determination as to whether those facts amount to custody under the law.").
The evidence admitted at the suppression hearing consisted of the testimony by the detectives, the video recording of the interview, and a transcription of the interview. The detectives testified that on January 9, 2016, they traveled to Galveston to meet with appellant after Detective Israel talked with appellant on the phone and appellant agreed to meet with them, expressing his desire to help with their investigation because Parlin was "a bad person." Both detectives testified that they considered appellant to be a potential witness at that time. The purpose of the interview was to eliminate appellant as a suspect and ask questions of appellant to obtain information to corroborate Parlin as the murderer.
Appellant told the detectives that his mother was a lawyer and that she had advised him not to meet with them, but that he chose to do so, against his mother's advice, because he wanted to help with their investigation.
The testimony reflected that they arranged to meet appellant at the Galveston police station because it was a facility that provided an interview room with recording capabilities. Appellant drove himself to the station. The detectives met appellant outside the station because it was afterhours and the doors were locked. Instead of the suspect-interrogation room, the detectives interviewed appellant in the witness-interview room, which had couches and recliners and "was designed to be a little more comfortable." The door to the room was unlocked. The detectives explained to appellant that he was not under arrest and was "free to go" at any time; they even offered to help appellant find his way out of the building, if necessary, should he wish to leave. At no point during the interview was the door to the witness room locked.
Appellant maintains that for the interview he was "in the middle of a police station . . . where a key card [was] needed to get around and he [was] always escorted." However, Detective Scanlon's testimony indicated that the police station was a restricted facility and any interviewee, whether a suspect or not, must be escorted back to where the interview rooms with recording devices were located. Further, the testimony reflected that the officers too were escorted because they were unfamiliar with the building.
The evidence at the hearing showed that breaks were taken during the interview and that, at various times, the detectives left appellant alone in the unlocked room. Appellant was repeatedly asked if he needed a restroom break and was allowed to use the restroom when he asked. He was also repeatedly offered, and given, water. Appellant never asked to make a phone call or have a lawyer present. He never asked to leave or asked to stop the interview. He was never patted down, handcuffed, or restrained in any manner until his formal arrest towards the end of the interview. There was no evidence that appellant was physically prevented from leaving until after he was handcuffed upon his arrest.
Appellant challenges the trial court's fact findings and determination that he was not in custody, arguing that his interview with the detectives became a custodial interrogation because of the detectives' "point blank manifestation" of their subjective belief that he caused Blair's death and because of appellant's "pivotal admission" that he had stabbed Blair in the neck. In support of his contention, appellant cites to State v. Ortiz, 382 S.W.3d 367 (Tex. Crim. App. 2012), and Xu v. State, 100 S.W.3d 408 (Tex. App.—San Antonio 2002, pet. ref'd).
In Ortiz, the issue was whether a routine traffic stop for speeding had escalated to a custodial detention by the time Ortiz, the driver of the car, made an incriminating statement about possessing cocaine. 382 S.W.3d at 373-77. The evidence in that case showed that: after receiving conflicting answers from Ortiz and his wife (the passenger) about their destination, the patrol officer expressed his suspicion about drug possession to Ortiz by asking "how much drugs" were in the car; Ortiz consented to a search of his car and person; backup officers arrived on the scene while Ortiz was being searched, creating a total of three officers and two patrol cars; Ortiz was handcuffed after one of the backup officers, who searched Ortiz's wife, signaled that something had been discovered during her pat down; the backup officer then confirmed to the initial patrol officer, in front of Ortiz, that "something" had been found under her skirt; the patrol officer asked Ortiz what kind of drugs his wife had under her skirt; and Ortiz responded "coca" and "cocaina." Id. at 369-70. The Court of Criminal Appeals held that Ortiz was in custody when he made the incriminating statement about the cocaine, concluding that "[e]ven the presumptively innocent reasonable person—that is to say, the reasonable person whom we must presume to have been unaware of the kilo of cocaine under his wife's skirt—would have believed, under the objective circumstances, that his liberty was constrained to a degree consistent with formal arrest for some substantial offense." Id. at 375.
However, contrary to appellant's suggestion, it was not simply the "point blank" expression of suspicion that established custody but "the accretion of objective circumstances." The court specifically noted the "coercive nature of the stop"—Ortiz faced multiple police officers, not the one or two for a typical traffic stop—and the physical restraint placed on Ortiz and the circumstances under which it was placed—he was handcuffed right after his wife was handcuffed and the backup officer signaled that something illegal or dangerous had been found during her pat-down search. Id. at 374-75.
In Xu, the San Antonio Court of Appeals held that Xu was in custody during a stationhouse interrogation from the moment he made a "pivotal admission" to officers about his wife's murder that established probable cause for his arrest for her murder. 100 S.W.3d at 415. The court analyzed the following factors in making that determination: (1) whether the suspect arrived at the place of interrogation voluntarily—Xu voluntarily submitted to questioning, but the court stressed his distraught emotional state and the fact that he was born in China, where there are no Miranda rights, and the fact that he spoke little English; (2) the length of the interrogation—Xu had been interrogated by multiple officers during separate interviews over the course of eighteen hours and had been at the police station for five hours before making his pivotal admission; (3) whether the suspect's requests to see relatives and friends were refused—Xu's friend tried to see and speak with Xu but was not permitted to do so; (4) the degree of control exercised over the suspect—Xu had not been told that he was free to leave for approximately five hours before his pivotal admission, and he received only one bottle of water and one restroom break during that time; and (5) whether a "pivotal admission" established probable cause—Xu made such an admission in the second interview, shortly after officers confronted him with evidence pointing to him as the suspect and said they did not believe his story. Id. at 414-15.
We find appellant's reliance on these cases to be misplaced. The circumstances in this case differ significantly from both Ortiz and Xu. The coercive nature of the encounters as well as the physical restraint and high degree of control over the interviewee that were involved in those cases are not present here.
While it is true that a suspect's "pivotal admission" can be a manifestation of probable cause to arrest, see Dowthitt, 931 S.W.2d at 256-57, such a manifestation is not sufficient to show that appellant was in custody without the existence of other factors. See Saenz, 411 S.W.3d at 496; Dowthitt, 931 S.W.2d at 255. Custody is established "if the manifestation of probable cause, combined with other circumstances, would lead a reasonable person to believe that he is under restraint to the degree associated with an arrest." Dowthitt, 931 S.W.2d at 255 (emphasis added). Even if probable cause to arrest appellant for Blair's murder arose before the end of the interview and even if it had been manifested to appellant, that would not, without more, establish custody. None of the objective circumstances surrounding appellant's interview show a significant restriction on appellant's freedom of movement that would lead a presumptively innocent reasonable person—a person whom we must presume was unaware of how Blair's death had been caused, see Ortiz, 382 S.W.3d at 375—to believe he was not free to terminate the interview and leave. See Dowthitt, 931 S.W.2d at 256-57 (objective factors include whether defendant arrived voluntarily, length of interrogation, whether defendant's requests to see relatives or friends were refused, and degree of control exercised over defendant). As previously noted, appellant drove himself to the station for the interview. The interview was conducted in the witness-interview room—not the suspect-interrogation room—that was located in a secured area where all public visitors had to be escorted. The interview lasted approximately five hours but included breaks. Appellant never asked, and at no time was not permitted, to make a phone call to a friend, a relative, or a lawyer. Appellant was provided with water and permitted to use the restroom. Further, appellant was left alone in the unlocked room several times.
The testimony at the suppression hearing reflected that, as the questioning proceeded, the detectives' suspicion of appellant's criminal involvement evolved. Initially, they thought that appellant was simply an acquaintance of Parlin's, whom Parlin was blaming for the murder, who might have some relevant information. When they discovered from appellant that he had been with Parlin the night of Blair's murder, they thought that appellant might be a witness to or have information about the burglary perpetrated by Parlin during which Parlin killed Blair. As appellant gradually revealed more information, the detectives continued to question appellant about the level of his involvement with Parlin's activities that night. However, only when the detectives observed appellant's walk as they returned from a bathroom break did they suspect that he had committed the murder. As the questioning continued after the break, the detectives challenged appellant's answers based on discrepancies with the evidence from the crime scene, confronting him when they believed he was not being honest and communicating their belief that he was withholding information. Moreover, even after appellant's admission, the detectives left appellant alone in the unlocked witness room.
When returning from the bathroom, the detectives observed appellant walking and believed his walk to be similar to that of the individual depicted in an FLIR recording made by one of Blair's nearby neighbors, which showed an individual exiting from the passenger seat of a car similar to the Camry in which Blair's blood was discovered and walking toward Blair's home that night—the person that police believed was the person who killed Blair.
Under the trial court's fact findings, which are supported by the record, we conclude that appellant was not in custody during the interview with the detectives at the Galveston police station until his formal arrest. See Saenz, 411 S.W.3d at 494 (explaining that because matter of whether defendant was in custody when interrogated by officer was "a mixed question of law and fact that does not turn on credibility or demeanor," court applied "a deferential standard of review to the trial court's factual assessment of the circumstances surrounding the interrogation" and "a de novo review to its ultimate legal determination that appellee was in custody"); see, e.g., Trejos v. State, 243 S.W.3d 30, 46-47 (Tex. App.—Houston [1st Dist.] 2007, pet. ref'd) (concluding that appellant's statements made during initial interview provided sufficient probable cause to arrest him but that "the other circumstances present, when viewed in a light most favorable to the trial court's ruling, [were] sufficient to show that he was not in custody"). Because appellant was not in custody, his statements did not stem from "custodial interrogation," and the lack of Miranda and article 38.22 warnings did not require the suppression of appellant's incriminating statements. Therefore, the trial court did not abuse its discretion in denying appellant's motion to suppress his incriminating statements. Appellant's first point of error is overruled.
In his second and third points of error, appellant complains about alleged error in the jury charge resulting, he maintains, from the trial court's denial of his requested jury-charge instructions concerning the voluntariness of his statements. During the charge conference, the following exchange occurred:
THE COURT: Okay. And then on number 8, we had talked about that, and I thought yesterday we had left that out of the voluntariness instruction. And the Defense says they put that in there so that I could officially rule on it.
Is that correct?
[APPELLANT]: We filed a written request for what we wanted in there, Judge, and you should have a copy of that up there.
. . . (trial court directed to copy of written proposed instruction)
[APPELLANT]: And so we're requesting that language. Under the case law, there are three different ways you can challenge the voluntariness of a statement that's being introduced. And we believe that we've presented facts in this case that substantiate all three instructions to be included in the charge.
THE COURT: All right. Did State want to respond to that?
[STATE]: Yes. First of all, the Defense proposed charge is extremely specific and would definitely amount to a comment on the evidence. Second, we're asking that the Court track the language —
THE COURT: Hold on right there. This is the proposed — there's a couple of different things here. So one is a proposed jury instruction on voluntariness, is what we're talking about right now?
[APPELLANT]: Yes, sir.
THE COURT: So that doesn't have a specific — specificity?
[STATE]: It's too specific, is what the State is saying. That it amounts to a comment on the evidence, because it's talking about how police — something can go from being — starting out as consensual and move on to something else. It's adding more than what even the statute allows.
So [the] State is requesting that [the] language for voluntariness track the statute in the Code of Criminal
Procedure, Article 38.22, Section 6, that it say "You are instructed that unless you believe beyond a reasonable doubt that the statement was voluntarily made, you shall not consider such statement for any purpose nor any evidence obtained as a result thereof."
THE COURT: Okay. So as we talked about yesterday — and I'm going to go with that 38.22, Section 6 instruction that's also talked about in State vs. Oursbourn; O-u-r-s-b-o-r-n [sic], I believe. I don't have the number of the citation in front of me. And I'll deny Defense motion to have what's in this charge number 8. But that's not — you have a bigger charge, correct?
. . . (discussion about modifying jury charge to effectuate court's ruling)
[APPELLANT]: And just for clarity's sake, at the very bottom of that is also a request for a 38.23 instruction. You're denying that as well?
THE COURT: Yes.
The record indicates that a prior discussion about the jury charge had occurred, but that discussion does not appear in the record.
Appellant made that request in one sentence in his written proposed jury instruction: "Furthermore, the defense would request the standard 38.23 instruction be given to the jury in this case."
The trial court submitted the following instruction on voluntariness, which tracked the statutory language of section 6 of article 38.22 of the Code of Criminal Procedure, to the jury in the court's charge:
Regarding any statements made by the defendant, you are instructed that unless you believe beyond a reasonable doubt that the statement was voluntarily made, you shall not consider such statement for any purpose nor any evidence obtained as a result thereof.
In his second point of error, appellant contends that the trial court erred in denying his request for an instruction under section 7 of article 38.22 of the Code of Criminal Procedure. In his third point of error, he contends that the trial court erred in denying his request for an instruction under article 38.23 of the Code of Criminal Procedure.
We review alleged jury charge error in two steps: first, we determine whether error exists; if so, we then evaluate whether sufficient harm resulted from the error to require reversal. Arteaga v. State, 521 S.W.3d 329, 333 (Tex. Crim. App. 2017); Ngo v. State, 175 S.W.3d 738, 743-44 (Tex. Crim. App. 2005). The degree of harm required for reversal depends on whether the jury charge error was preserved in the trial court. Mendez v. State, 545 S.W.3d 548, 552 (Tex. Crim. App. 2018); see Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1985) (op. on reh'g) (setting forth procedure for appellate review of claim of jury charge error). If the jury charge error has been properly preserved by an objection or request for instruction, see Tex. Code Crim. Proc. arts. 36.14, 36.15, reversal is required if the appellant has suffered "some harm" from the error, which means the error "was calculated to injure the rights of the defendant." Jordan v. State, 593 S.W.3d 340, 346 (Tex. Crim. App. 2020); see Almanza, 686 S.W.2d at 171. If the charge error was not properly preserved, the error requires reversal only if the appellant suffered "egregious harm," which occurs when the error "created such harm that the appellant was deprived of a fair and impartial trial." Chambers v. State, 580 S.W.3d 149, 154 (Tex. Crim. App. 2019); see Almanza, 686 S.W.2d at 171.
A trial court is statutorily obligated to instruct the jury on the "law applicable to the case." See Tex. Code Crim. Proc. art. 36.14; Mendez, 545 S.W.3d at 552; see Oursbourn v. State, 259 S.W.3d 159, 175-81 (Tex. Crim. App. 2008) (explaining circumstances under which various voluntariness issues become "the law applicable to the case"). The trial court's duty to instruct the jury on the "law applicable to the case" exists even when defense counsel fails to object to inclusions or exclusions in the charge. Mendez, 545 S.W.3d at 552; Vega v. State, 394 S.W.3d 514, 519 (Tex. Crim. App. 2013). The trial court is "ultimately responsible for the accuracy of the jury charge and accompanying instructions." Mendez, 545 S.W.3d at 552 (quoting Delgado v. State, 235 S.W.3d 244, 249 (Tex. Crim. App. 2007)). Article 38.22, Section 7
Article 38.22, section 7 of the Code of Criminal Procedure outlines the "statutory warnings" instruction. See Tex. Code Crim. Proc. art. 38.22, § 7; Oursbourn, 259 S.W.3d at 176. The statute provides, "When the issue is raised by the evidence, the trial judge shall appropriately instruct the jury, generally, on the law pertaining to such statement." Tex. Code Crim. Proc. art. 38.22, § 7. The Court of Criminal Appeals has explained, "The phrase 'the issue' refers to compliance with the statutory warnings set out in . . . [article] 38.22, §§ 2 & 3, and the voluntariness of the defendant's waiver of the rights." Oursbourn, 259 S.W.3d at 176. Thus, if an accused's statement was made as a result of custodial interrogation, he is "entitled—when the issue is raised by the evidence, to have the jury decide whether he was adequately warned of his rights and knowingly and intelligently waived those rights." Id.; Aldaba v. State, 382 S.W.3d 424, 430 (Tex. App.—Houston [14th Dist.] 2009, pet. ref'd). For the issue to be "raised by the evidence," there must be a genuine factual dispute regarding whether a defendant "was adequately warned of his rights and knowingly and intelligently waived" those rights. Oursbourn, 259 S.W.3d at 176; Hailey v. State, 413 S.W.3d 457, 496 (Tex. App.—Fort Worth 2012, pet. ref'd).
An instruction is required under this statutory provision if the defendant made his statements as a result of custodial interrogation and if the evidence raises a factual dispute regarding whether the defendant "was adequately warned of his rights and knowingly and intelligently waived" those rights. Hailey, 413 S.W.3d at 497 (citing Oursbourn, 259 S.W.3d at 176, 180). Because the trial court correctly determined that appellant's statement was not the product of custodial interrogation, no warnings were required. See Tex. Code Crim. Proc. art. 38.22, § 3. Therefore, there was no "issue" on whether appellant adequately received such warnings and voluntarily waived them. See id. § 7. Consequently, appellant was not entitled to submission of a jury instruction under article 38.22, section 7, and the trial court did not err by not including such an instruction in the jury charge. See, e.g., Hailey, 413 S.W.3d at 497; Randall v. State, No. 14-06-00468-CR, 2008 WL 5262738, at *8-9 (Tex. App.—Houston [14th Dist.] Dec. 18, 2008, no pet.) (mem. op., not designated for publication). We overrule appellant's second point of error. Article 38.23
The Texas statutory exclusionary rule, set forth in article 38.23(a) of the Code of Criminal Procedure, provides that "[n]o evidence obtained by an officer or other person in violation of any provisions of the Constitution or laws of the State of Texas, or of the Constitution or laws of the United States of America, shall be admitted in evidence against the accused on the trial of any criminal case." Tex. Code Crim. Proc. art. 38.23(a). If the evidence presented to the jury raises a question about whether certain evidence was obtained in violation of the law, "the jury shall be instructed that if it believes, or has a reasonable doubt, that the evidence was obtained in violation of [article 38.23], then and in such event, the jury shall disregard any such evidence so obtained." Id.
The trial court has a duty to give a specific voluntariness instruction for constitutional due-process claims under article 38.23 if three requirements are met: (1) evidence heard by the jury raises an issue of fact, (2) the evidence on that fact is affirmatively contested, and (3) the contested factual issue is material to the lawfulness of the challenged conduct in obtaining the statement claimed to be involuntary. Contreras v. State, 312 S.W.3d 566, 574 (Tex. Crim. App. 2010); Oursbourn, 259 S.W.3d at 177; see Madden v. State, 242 S.W.3d 504, 509-10 (Tex. Crim. App. 2007) ("A defendant's right to the submission of jury instructions under Article 38.23(a) is limited to disputed issues of fact that are material to his claim of a constitutional or statutory violation that would render evidence inadmissible."). "The disputed fact must be an essential one in deciding the lawfulness of the challenged conduct." Madden, 242 S.W.3d at 511.
Based on his trial testimony, appellant asserts that the material factual dispute that required an article 38.23 specific voluntariness instruction was what occurred during the bathroom break shortly before he made his incriminating statements. Appellant testified at trial that the detectives followed him into the bathroom and told him that, based on the information he had given them during the interview, they knew that he was the murderer and that they had enough to arrest him. According to appellant, Detective Scanlon told him: "[W]hen we search your house, we're going to find what we need to find"; "[T]here's all kinds of stuff we can do"; and "[W]e can make videos." Appellant also said that the detectives referenced Charles Manson and said that they knew that appellant was "under [Parlin's] control" so he just needed to explain to them "why he did it." Appellant contends that this trial testimony was contradicted by Detective Scanlon's earlier testimony that the detectives did not ask appellant questions during the bathroom break and that Detective Scanlon does not talk to people in the bathroom. He maintains that this contradiction created a material factual dispute. Even assuming that this argument—which was not presented to the trial court—identifies a specific disputed historical fact, the record does not demonstrate that it was "an essential one in deciding the lawfulness of the challenged conduct." See id.
This alleged contradiction arises from the following exchange with Detective Scanlon:
Q. Were you guys asking him questions during that time?
Q. How come?
A. Because there was no reason to. I mean, we're in the bathroom. I don't talk to people in the bathroom anyway, so . . .
Appellant maintains that the detectives commenting that Blair's murder was a capital crime and urging appellant to be truthful with them—which he characterizes as "being threatened with death for not telling the truth"—combined with the detectives describing similar situations that might involve mitigating factors and informing appellant that they usually consult with the prosecutor—which he describes as "the promise of leniency"—was conduct "likely to cause someone's will to be overborne." He argues that, "put into historical context," "the tactic of following [him] into the restroom and telling him these things off camera is offensive to due process."
A statement is obtained in violation of constitutional due process only if the statement is causally related to coercive government misconduct. Contreras, 312 S.W.3d at 574; see Colorado v. Connelly, 479 U.S. 157, 163-64 (1986); Oursbourn, 259 S.W.3d at 169-71. Coercive government misconduct renders a statement involuntary if the defendant's "will has been overborne and his capacity for self-determination critically impaired." Contreras, 312 S.W.3d at 574 (quoting Schneckloth v. Bustamonte, 412 U.S. 218, 225 (1973)); see Alvarado v. State, 912 S.W.2d 199, 211 (Tex. Crim. App. 1995) (explaining that statement is involuntary for purposes of federal due process "only if there was official, coercive conduct of such a nature that any statement obtained thereby was unlikely to have been the product of an essentially free and unconstrained choice by its maker"). Whether this has occurred is determined by assessing the "totality of all the surrounding circumstances," including "the characteristics of the accused and the details of the interrogation." Contreras, 312 S.W.3d at 574 (quoting Schneckloth, 412 U.S. at 226-27); see Dickerson v. United States, 530 U.S. 428, 433 (2000) ("The due process test takes into consideration 'the totality of all the surrounding circumstances—both the characteristics of the accused and the details of the interrogation'" (quoting Schneckloth, 412 U.S. at 226)); Delao v. State, 235 S.W.3d 235, 239 (Tex. Crim. App. 2007) (recognizing that "the determination as to whether a confession was voluntarily rendered must be analyzed by examining the totality of the circumstances").
"Relevant circumstances to determine if a defendant's will has been overborne have included length of detention, incommunicado or prolonged interrogation, denying a family access to a defendant, refusing a defendant's request to telephone a lawyer or family, and physical brutality." Armstrong v. State, 718 S.W.2d 686, 693 (Tex. Crim. App. 1985), overruled on other grounds by Mosley v. State, 983 S.W.2d 249, 264 n.18 (Tex. Crim. App. 1998). Statements that have been found to be involuntary under the Due Process Clause involve the crucial element of police overreaching and involve fact scenarios in which the suspect was subjected to threats, physical abuse, or extended periods of interrogation without rest or nourishment. See State v. Terrazas, 4 S.W.3d 720, 727 (Tex. Crim. App. 1999) (describing inherently coercive practices as including: taking accused to lonely and isolated places for questioning at night, subjecting accused to protracted and persistent questioning, threatening accused with violence, and detaining accused unlawfully).
Even assuming that the bathroom conversation occurred as appellant described, these comments do not demonstrate the type of police practice that has been held to be inherently coercive as to render a statement involuntary, nor does the record reflect that appellant's "will [was] overborne and his capacity for self-determination [was] critically impaired." See Schneckloth, 412 U.S. at 225; see e.g., Mincey v. Arizona, 437 U.S. 385, 398-401 (1978) (defendant subjected to four-hour interrogation while incapacitated and sedated in intensive-care unit); Greenwald v. Wisconsin, 390 U.S. 519, 519-21 (1968) (defendant, deprived of his medication, interrogated for over eighteen hours without food or sleep); Beecher v. Alabama, 389 U.S. 35, 38 (1967) (police officers held gun to head of wounded defendant to extract confession); Davis v. North Carolina, 384 U.S. 737, 743-52 (1966) (sixteen days of incommunicado interrogation in closed cell without windows, limited food, and coercive tactics); Reck v. Pate, 367 U.S. 433, 441-42 (1961) (defendant "of subnormal intelligence" held for four days with inadequate food and medical attention until confession obtained); Payne v. Arkansas, 356 U.S. 560, 563-67 (1958) (defendant held incommunicado for three days with little food; confession obtained when officers informed defendant that police chief was preparing to admit lynch mob into jail); Ashcraft v. Tennessee, 322 U.S. 143, 153-55 (1944) (defendant questioned by relays of officers for thirty-six hours without opportunity for sleep).
Accordingly, because "'specific' exclusionary-rule instructions concerning the making of a confession are warranted only where an officer uses inherently coercive practices," Oursbourn, 259 S.W.3d at 178, appellant was not entitled to a voluntariness instruction under article 38.23. Thus, the trial court did not abuse its discretion by denying appellant's requested article 38.23 instruction. We overrule appellant's third point of error.
Having concluded that the trial court did not abuse its discretion in denying appellant's motion to suppress and having determined that no error exists in the jury charge, we affirm the trial court's judgment of conviction.
Edward Smith, Justice Before Justices Goodwin, Baker, and Smith Affirmed Filed: November 13, 2020 Do Not Publish