                               COURT OF APPEALS
                               SECOND DISTRICT OF TEXAS
                                    FORT WORTH

                                  NO. 02-11-00139-CR


Michael O’Neal Hutchins a/k/a             §   From the 213th District Court
Michael ONeal Hutchins
                                          §   of Tarrant County (1147257D)

v.                                        §   November 21, 2012

                                          §   Per Curiam

The State of Texas                        §   (nfp)

                                     JUDGMENT

       This court has considered the record on appeal in this case and holds that

there was no error in the trial court’s judgment. It is ordered that the judgment of

the trial court is affirmed.


                                       SECOND DISTRICT COURT OF APPEALS



                                       PER CURIAM
                         COURT OF APPEALS
                         SECOND DISTRICT OF TEXAS
                              FORT WORTH

                              NO. 02-11-00139-CR

MICHAEL O’NEAL HUTCHINS                                             APPELLANT
A/K/A MICHAEL ONEAL HUTCHINS

                                        V.

THE STATE OF TEXAS                                                        STATE

                                     ----------

          FROM THE 213TH DISTRICT COURT OF TARRANT COUNTY

                                     ----------

                        MEMORANDUM OPINION1
                                     ----------

      Michael O’Neal Hutchins appeals his conviction and forty-nine year

sentence for aggravated robbery. In four points, appellant challenges the trial

court’s denial of his motion to suppress his statements during an interview with

Arlington police, contending that (1) he did not knowingly, intelligently, and

voluntarily waive his rights under Miranda, (2) he did not make an explicit waiver

of his rights under article 38.22 of the code of criminal procedure, (3) the


      1
       See Tex. R. App. P. 47.4.


                                         2
interrogation was a continuation of an earlier interrogation that had begun without

proper warnings under Miranda and article 38.22, and (4) he was not aware that

his earlier statements during an unwarned interrogation were inadmissible and

thus could not be used against him, thus his subsequent waiver was not

voluntary under Miranda and article 38.22. We affirm.

                   Standard of Review and Applicable Law

      We review a trial court’s ruling on a motion to suppress evidence under a

bifurcated standard of review.    Amador v. State, 221 S.W.3d 666, 673 (Tex.

Crim. App. 2007); Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim. App. 1997).

We give almost total deference to a trial court’s rulings on questions of historical

fact and application-of-law-to-fact questions that turn on an evaluation of

credibility and demeanor, but we review de novo application-of-law-to-fact

questions that do not turn on credibility and demeanor. Amador, 221 S.W.3d at

673; Estrada v. State, 154 S.W.3d 604, 607 (Tex. Crim. App. 2005); Johnson v.

State, 68 S.W.3d 644, 652–53 (Tex. Crim. App. 2002).

      It is the State’s burden to establish a valid waiver of Miranda rights by a

preponderance of the evidence. Leza v. State, 351 S.W.3d 344, 349 (Tex. Crim.

App. 2011). There are two facets to any inquiry with respect to the adequacy of

a purported waiver of Miranda rights: (1) the waiver must be ―voluntary in the

sense that it was the product of a free and deliberate choice rather than

intimidation, coercion, or deception‖; and (2) the waiver must be made ―with a full

awareness both of the nature of the right being abandoned and the


                                         3
consequences of the decision to abandon it.‖ Id. (quoting Ripkowski v. State, 61

S.W.3d 378, 384 (Tex. Crim. App. 2001), cert. denied, 539 U.S. 916 (2003)).

      Before it may be said that a waiver of a Miranda right is involuntary, there

must be some element of official intimidation, coercion, or deception. Id. at 349.

And ―[o]nce it is determined that a suspect[ ] . . . at all times knew he could stand

mute . . . , and that he was aware of the State’s intention to use his statements to

secure a conviction, the analysis is complete and the waiver is valid as a matter

of law.‖ Moran v. Burbine, 475 U.S. 412, 422–23, 106 S. Ct. 1135, 1141 (1986),

quoted in Leza, 351 S.W.3d at 349. Thus, a waiver is knowing and intelligent

when the record shows that the accused has been made aware, and fully

comprehends, that he has the right to remain silent in the face of police

interrogation and to discontinue the dialogue at any time, and that the

consequence of his waiver is that his words may be used against him later in a

court of law. Leza, 351 S.W.3d at 350.

      Unlike claims of involuntary waiver of Miranda rights, claims of

involuntariness under article 38.22 of the code of criminal procedure need not be

predicated on police overreaching. Oursbourn v. State, 259 S.W.3d 159, 172

(Tex. Crim. App. 2008). Section 6 of that article may be construed not only as

protecting people from police overreaching but also as protecting people from

themselves. Id. Thus, a confession given under the duress of hallucinations,

illness, medications, or even a private threat could be involuntary under Texas

law. Id.


                                         4
                                Applicable Facts

      Testimony at Suppression Hearing

      Fort Worth police interviewed appellant, who was a suspect in several

robberies in Fort Worth. Sometime shortly after the interview, Fort Worth police

arrested appellant on an assault charge.2 While appellant was in custody as a

result of the arrest, Fort Worth police contacted Sergeant Anthony Wright with

the Arlington police department, who was investigating a robbery at a QT

convenience store in Arlington. The Fort Worth officers told Sergeant Wright that

they had received a tip which led them to suspect that appellant had been

involved in several robberies, including the QT robbery. Sergeant Wright then

interviewed appellant starting around 9 p.m. at the Mansfield Law Enforcement

Center. Sergeant Wright taped the interview, during which appellant waived his

Miranda rights.

      Sergeant Wright testified that he did not know how long appellant had

been in custody when he picked him up from Fort Worth and took him to

Mansfield for the interview. Sergeant Wright did not remember what appellant

was wearing, and he did not know whether appellant had eaten, but he did say

appellant did not appear fatigued. The interview lasted thirty minutes.


      2
       It is unclear when Fort Worth police arrested appellant, but it was
sometime between the time of their interview, which ended around 10:30 p.m.
February 13, 2009, and 9 p.m. the next day. The evidence does not show what
the assault charge was for, but appellant admitted during his interview with the
Fort Worth police that he had recently been in a fight.


                                        5
         Sergeant Wright acknowledged that he started out the interview by telling

appellant that he ―had been speaking with Fort Worth, which is initially who

identified‖ appellant to him. Sergeant Wright showed appellant photographs and

video stills of a couple of robberies in Arlington, including the QT one, but he did

not remember showing appellant photos or video stills of any of the Fort Worth

offenses. When Sergeant Wright told appellant he had done an analysis of ―all

the videos,‖ he was referring to the two Arlington robberies, but Sergeant Wright

had viewed some of the video stills from Fort Worth. Sergeant Wright did not

know what appellant was talking about when he mentioned not knowing about

three people wearing the same clothes. Sergeant Wright said that he questioned

appellant about the 7-11 robbery first, then the QT one, but he could not be sure

whether appellant was looking at the 7-11 and QT photos together when he

confessed to the QT robbery because all the photos were on the table by that

point.

         Sergeant Wright testified that he made no promises to appellant, did not

coerce appellant, and was not aware of any promises made by Fort Worth police;

he told appellant he did not know about the facts of the Fort Worth cases.

Sergeant Wright did not know ―anything about [Fort Worth’s] investigation.‖

Sergeant Wright admitted that appellant could have thought during the interview

that Sergeant Wright knew everything that Fort Worth police knew about

robberies other than the ones in Arlington.




                                         6
      Appellant testified that in the initial Fort Worth interview, the police told him

he was under arrest but did not read him his Miranda warnings. He thought they

told him, however, that he did not have to talk to them, but he was not sure. The

Fort Worth interview took place the day before the interview with Sergeant

Wright. When asked if he thought the Arlington interview was ―in connection

with‖ the Fort Worth interview, appellant answered he did, ―[s]eeing how he

[Sergeant Wright] said that he had already spoke with the . . . Fort Worth people.‖

Appellant thought his confession was going to help ―somewhat‖ with the Fort

Worth investigation. However, he did not think the statements he made in the

Fort Worth interview could be used against him in the Arlington interview. He

said he thought he had to tell Sergeant Wright the same things he told Fort Worth

police. He also ―was very unsure about what was going on. [He] really didn’t

know the concept . . . so [he] was very unsure about the whole process.‖

      Appellant said that he did not realize that he was helping to build a case

against himself when he made the waiver because the day before in Fort Worth,

he was told that if he cooperated, they would work with him and that by being

honest, they would go easy on him for punishment. If he had realized that he

would be charged with aggravated robbery by the Arlington police, he would not

have waived his rights.

      According to appellant, Sergeant Wright did not promise him anything, but

―he kind of led [appellant] into believing that he had already spoke with Fort

Worth, and that they had been working hand in hand.‖                 Appellant never


                                          7
confessed to any of the Fort Worth robberies, however. He also did not believe

he ever really confessed anything to Sergeant Wright. He said he had never

been through an interrogation before and was confused. He said his questions

to the officer about whether he would be tried in Fort Worth or Arlington or

whether he was going back to Fort Worth show his confusion about the Arlington

interview and whether it was an extension of the Fort Worth interview.

      Audiotapes

      The audiotapes of appellant’s two interviews were played for the trial court.

Appellant’s answers in the tape of the Fort Worth interview are very difficult to

understand. However, the officers’ questions are easier to understand, and it is

quite clear that they told appellant at the beginning of the interview that he was

not in custody and that he was free to leave at any time. They also said the

same thing later in the interview, towards the end.3 Although appellant did not

admit to participating in robbing store clerks in several cities, he did over the

course of the interview admit being in the car with two men whom the Fort Worth

officers told appellant were involved in those robberies; appellant also admitted

stealing cigarettes from some of those stores.          However, throughout the

interview, appellant denied knowing about or participating in any robberies at

those same stores.4 Although the police focused primarily on what appear to be

      3
       One of the officers did tell appellant that he was in ―some trouble.‖
      4
       Although appellant initially denied knowing that at least one of the men
had a gun, he later admitted he knew one of them, Dre, had a gun with him.


                                         8
Fort Worth offenses, they did ask appellant about a 7-11 robbery in Arlington and

told him they were going to show the pictures from that store to Arlington police

―in the morning.‖5 Throughout the interview, Fort Worth police told appellant they

knew he was one of the men in the video and that they thought he was just

making bad decisions while under the influence of drugs.

      Sergeant Wright started his interview with appellant by telling him that he

had been working ―real close with those Fort Worth guys‖ and that they told him

appellant had been cooperative and wanted to get all this behind him. Sergeant

Wright then asked appellant to talk to him, read appellant his Miranda warnings,

asked if appellant would agree to talk to him, and had appellant sign and initial a

waiver card saying appellant understood his rights. Sergeant Wright also told

appellant that he did not know what was going on in Fort Worth, that he was not

there to discuss it with appellant, and that it was none of his business.

      Sergeant Wright asked appellant about robberies at a QT and a 7-11 in

Arlington. Although he showed appellant pictures, we cannot tell which stores

were shown in the pictures. Sergeant Wright did tell appellant that based on the

pictures appellant had looked at in Fort Worth (and had identified himself in),

Sergeant Wright thought appellant was the person who robbed the clerks in

Arlington. Appellant admitted that the man in Sergeant Wright’s pictures could


      5
        They also asked about a robbery on Grapevine Highway, but they did not
identify the city. From the officers’ questioning, it appears that these robberies
involved similar methodology and occurred around the same time.


                                         9
have been him, but he told Sergeant Wright he was not sure if he had ever been

in those stores.    Appellant identified his companion, Dre, in a picture when

appellant and Sergeant Wright were discussing the 7-11 robbery.

        When appellant did not say whether he had participated in the QT robbery,

Sergeant Wright told him he knew the man in the picture was him. Sergeant

Wright told appellant that the clerk at the QT had identified him but that the clerk

at the 7-11 could not. According to Sergeant Wright, there was no question that

the man in the QT picture was appellant because the clerk could clearly see his

face.

        Sergeant Wright said he wanted to know why ―they‖ had picked the QT

and whether appellant intended to kill or hurt the clerk.      In response to that

question, about halfway through the interview, appellant said the gun was not

loaded; he also told Sergeant Wright that Dre had dropped him off at the store,

and he did not know why Dre picked certain stores. This was the first time in the

interview with Sergeant Wright in which appellant admitted participating in the

robberies.    Sergeant Wright also told appellant that the clerk at the QT was

distraught over the robbery and feared for his life. Sergeant Wright told appellant

he wanted to be able to tell the clerk that the robbers did not intend to kill him,

and appellant affirmed that he did not.

        By the end of the interview, appellant had admitted his involvement in both

offenses. Sergeant Wright thanked appellant for his cooperation and said that he

would be able to reassure the QT clerk that the men did not intend to kill him that


                                          10
night and were not going to retaliate against him or his family. Sergeant Wright

then asked appellant for a saliva sample for DNA testing; when appellant

expressed confusion, Sergeant Wright told appellant he was not required to

provide a sample voluntarily. After Sergeant Wright read appellant the consent

form for the sample, and appellant acquiesced verbally, appellant asked what

would happen if he waited until he had an attorney to find out what was the best

thing to do. Sergeant Wright told appellant he was free to consult an attorney

before giving a DNA sample. Appellant then referred to the Fort Worth interview,

and Sergeant Wright again explained to appellant that the Fort Worth offenses

were separate and that he was interested only in the Arlington offenses. Upon

appellant’s questioning about who would be responsible for prosecuting him,

Sergeant Wright explained that Tarrant County would be responsible for

prosecuting all of the cases and that they would probably be handled by one DA.

      Findings

      The trial court made the following oral findings on the record:

            Article 38.22 of the Texas Code of . . . Criminal Procedure was
      complied with. The Defendant was read his Miranda rights by
      Sergeant Wright. The Defendant . . . initialed the card -- the warning
      card which contained the Miranda warning. Specifically, he was
      warned that he had the right to remain silent, not make any
      statements at all. And any statement he make -- may make would --
      may be used against him at trial. Any statements you may make
      may be used as evidence against you in court.

            He was advised, ―You have the right to have a lawyer present
      to advise you prior to and during any questioning. If you are unable
      to employ a lawyer, you have the right to have a lawyer appointed to



                                        11
      advise you prior to and during any questioning. You have the right
      to terminate the interview at any time.‖

            The statement given by the Defendant was given to Officer
      Wright. This was recorded. The Miranda warning was recorded by
      Officer Wright also. The Defendant knowingly, intelligently, and
      voluntarily waived any rights set out in the motion. The statement
      was recorded by a recording device that was capable of making an
      accurate recording, and I believe it was competent. And the
      recording is accurate and has not been altered. Voices on the
      recording were identified.

            The Defendant was not promised anything as -- in order to
      induce him to make a statement. No threats were made to the
      Defendant, no promises. It was a completely voluntar[]y statement
      made by Defendant.

            The Court also finds that the Defendant did not confess to Fort
      Worth police, and that he was not in . . . custody at the time because
      he was not under arrest. But in any event, no statement was made
      by Defendant at that time.

            But the Court finds that in its totality, the action of officer -- or
      Sergeant Wright complied with 38.22; therefore, the Court will
      overrule your objection. State’s Exhibit 5 will be -- which is the
      unredacted copy, will be admitted for record purposes only. State’s
      Exhibit 6 will be admitted to the jury for all purposes. . . .

                                      Analysis

      Miranda

      Appellant does not contend that he was denied access to outside

resources or physical needs, that he was in any physical or mental discomfort, or

that Sergeant Wright made any promises or threats to coerce the confession.

Appellant’s main contention is that he thought the interview with Sergeant Wright

was merely a continuation of his prior, unwarned interview with Fort Worth police;

as such, he did not realize what he was doing when he waived his rights during


                                          12
the interview with Sergeant Wright because he had already spoken with Fort

Worth police by that point and had not been warned during that interview. In

other words, appellant contends that he thought Sergeant Wright would have

found out what appellant told Fort Worth regardless of whether he talked with

him, so his waiver was meaningless.

      Although appellant contends that he was in custody during the Fort Worth

interview and, thus, that he should have received Miranda warnings, the trial

court believed that appellant was not in custody and that warnings were not

required.

      There are at least four general situations when a suspect’s detention may

constitute custody: (1) when the suspect is physically deprived of his freedom of

action in any significant way, (2) when a law enforcement officer tells the suspect

that he cannot leave, (3) when law enforcement officers create 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. Dowthitt

v. State, 931 S.W.2d 244, 255 (Tex. Crim. App. 1996); McCulley v. State, 352

S.W.3d 107, 115–16 (Tex. App.––Fort Worth 2011, pet. ref’d).           In the first

through third situations, the restriction upon freedom of movement must amount

to the degree associated with an arrest as opposed to an investigative detention.

Dowthitt, 931 S.W.2d at 255; McCulley, 352 S.W.3d at 116. Concerning the

fourth situation, the officers’ knowledge of probable cause must be manifested to


                                        13
the subject, and such manifestation could occur if information sustaining the

probable cause is related by the officers to the suspect or by the suspect to the

officers. Dowthitt, 931 S.W.2d at 255; McCulley, 352 S.W.3d at 116. Situation

four, however, will not automatically establish custody; rather, 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;

McCulley, 352 S.W.3d at 116. Additionally, the length of time involved is an

important factor to consider in determining whether a custodial interrogation

occurred. Dowthitt, 931 S.W.2d at 256; McCulley, 352 S.W.3d at 116.

      The Fort Worth interview took about three hours. The audiotape of that

interview shows that the police told appellant more than once that he was free to

leave and that he was not in custody. The trial court was thus justified in not

believing appellant’s testimony that the police told him he was under arrest. After

the interview, the Fort Worth police did not arrest appellant for any robberies;

instead, they arrested him for assault. Thus, the record supports the trial court’s

finding and conclusion that appellant was not in the custody of, or under arrest

by, the Fort Worth police during that interview and that, therefore, Miranda

warnings were not required. See Estrada v. State, 313 S.W.3d 274, 294–95

(Tex. Crim. App. 2010), cert. denied, 131 S. Ct. 905 (2011).

      Moreover, the trial court believed Sergeant Wright’s testimony, borne out

by the recording, that he made it ―extremely clear‖ to appellant before the


                                        14
interview started that he was an Arlington police officer and was investigating two

Arlington crimes. The two interviews were under different circumstances: one

was voluntary with Fort Worth police; the other occurred after appellant had

already been arrested by Fort Worth police, and Sergeant Wright had to transport

him to the Mansfield detention center. Even if the trial court believed that the

Fort Worth officers’ statements to appellant in their interview indicating that they

believed he was in a bad situation and had not intended to hurt anyone

amounted to promises of leniency with respect to the Fort Worth crimes, there is

still no evidence that Sergeant Wright promised, or that appellant thought, that he

would be granted leniency regarding the Arlington crimes. See Muniz v. State,

851 S.W.2d 238, 254 (Tex. Crim. App.) (―Before a promise will render a

confession inadmissible, it must be shown that the promise induced the

confession. . . .   In order to induce the confession, the promise must be

(1) positive, (2) made or sanctioned by someone in authority, and (3) of such an

influential nature that a defendant would speak untruthfully in response thereto.‖

(citation omitted)), cert. denied, 510 U.S. 837 (1993); Wilson v. State, 348

S.W.3d 32, 39 (Tex. App.—Houston [14th Dist.] 2011, pet. ref’d) (holding that

appellant could not demonstrate that statements by sergeant would have induced

an innocent person to confess).      Additionally, the trial court determined that,

despite appellant’s contention that he was confused, the totality of the

circumstances showed that Sergeant Wright’s explicit warnings, along with

appellant’s answers, were sufficient to show that appellant was aware of his


                                        15
rights and the consequences of waiving them. See Joseph v. State, 309 S.W.3d

20, 27 (Tex. Crim. App. 2010).

      Likewise, there is no evidence that, in appellant’s words, ―[t]he procedure

used by the State was designed to circumvent [a]ppellant’s constitutional and

statutory   protections.‖   The    recordings   show    that   appellant   provided

progressively more information as the interviews proceeded. Although he had

been arrested by the time of the Arlington interview, he nevertheless initially and

repeatedly denied to Sergeant Wright that he had been involved in the Arlington

robberies. Only at the suggestion that the gun used in the robberies was loaded,

however—about halfway through the interview6—did appellant decide to talk;

once he did so, he appeared to be ―in for a penny, in for a pound.‖ Accordingly,

viewed under the appropriate standard of review, the trial court’s ruling that

appellant’s confession was knowing, intelligent, and voluntary for purposes of

Miranda was not error. We overrule appellant’s first point.

      Article 38.22

      Appellant argues that the short time between the two interviews shows that

he thought they were connected; thus, he did not understand the warnings

Sergeant Wright gave him because he thought Sergeant Wright already knew

everything the Fort Worth police knew and that he had to tell Sergeant Wright the

same things he told Fort Worth. But appellant’s initial and repeated refusal to


      6
       The Arlington interview lasted about thirty minutes.


                                        16
answer Sergeant Wright’s questions was not consistent with the answers he

gave Fort Worth police during their interview. Appellant knew that Fort Worth

police had arrested him on an assault charge, not a robbery or aggravated

robbery charge. And although Sergeant Wright started his interview by saying he

had talked to and worked with the Fort Worth police, he clearly told appellant he

was concerned only about crimes committed in Arlington.            Moreover, this

statement occurred after Sergeant Wright Mirandized appellant and appellant

signed the waiver card. The record does not support appellant’s contention that

he did not know what he was doing when he signed the waiver card and spoke to

Sergeant Wright about the QT robbery in Arlington. See Leza, 351 S.W.3d at

352–53. We overrule appellant’s second point.

      Coordinated Continuation of Unwarned Fort Worth Interview

      In his third and fourth points, appellant contends that the trial court erred

by denying his motion to suppress because the interview with Sergeant Wright

was a continuation of an earlier, unwarned, custodial interview with Fort Worth

police and appellant was therefore unaware that those earlier statements were

inadmissible and could not be used against him. Appellant did not argue at trial

that Fort Worth police deliberately failed to Mirandize him to coerce a confession

to the Arlington aggravated robbery. Although appellant testified on voir dire that

Fort Worth police told him he was not free to leave, the court listened to an

excerpt from the beginning of that interview. Appellant’s counsel admitted in her

argument on the motion to suppress that Fort Worth police had told him he did


                                        17
not have to talk to them and was free to terminate the interview. Instead, she

argued that appellant was confused about the effect of the prior interview when

he was confronted with Sergeant Wright’s warning; counsel contended that

appellant thought Sergeant Wright was working with the Fort Worth police and,

thus,       that   Sergeant Wright   should    have   disabused   appellant   of   any

misperceptions he had regarding the effect of that voluntary interview.

Accordingly, we conclude and hold that appellant failed to preserve his third and

fourth points, in which he contends that Sergeant Wright and Fort Worth police

used a ―coordinated and continuing‖ interrogation procedure that was ―designed

to circumvent‖ appellant’s rights.7 See Tex. R. App. P. 33.1(a)(1); Romo v. State,

315 S.W.3d 565, 573 n.7 (Tex. App.—Fort Worth 2010, pet. ref’d); see also

Missouri v. Seibert, 542 U.S. 600, 608, 124 S. Ct. 2601, 2608 (2004); Carter v.

State, 309 S.W.3d 31, 38 (Tex. Crim. App. 2010). We overrule his third and

fourth points.




        7
        Appellant’s counsel did argue the ―cat-out-of-the-bag‖ theory, but the
thrust of that argument was that appellant did not understand that he was not in
custody during the Fort Worth interview and that even though he did not confess
during that interview, he thought Fort Worth police must know he was the culprit
and had shared that information with Sergeant Wright. See Griffin v. State, 765
S.W.2d 422, 425, 427 (Tex. Crim. App. 1989).


                                          18
                               Conclusion

      Having overruled appellant’s four points, we affirm the trial court’s

judgment.


                                              PER CURIAM

PANEL: LIVINGSTON, C.J.; GARDNER and GABRIEL, JJ.

GARDNER and GABRIEL, JJ., concur without opinion.

DO NOT PUBLISH
Tex. R. App. P. 47.2(b)

DELIVERED: November 21, 2012




                                    19
