                            NUMBER 13-08-00185-CR

                            COURT OF APPEALS

                  THIRTEENTH DISTRICT OF TEXAS

                    CORPUS CHRISTI - EDINBURG


THE STATE OF TEXAS,                                                          Appellant,

                                            v.

DONALD GLENN WERLLA,                                                          Appellee.


                    On appeal from the 94th District Court
                         of Nueces County, Texas.


              MEMORANDUM OPINION ON REHEARING

              Before Justices Rodriguez, Garza, and Vela
           Memorandum Opinion on Rehearing by Justice Garza

       After considering the motion for rehearing and motion for rehearing en banc filed by

appellant, the State of Texas, we deny the motions; however, we withdraw our opinion and

judgment of August 29, 2008, and substitute the following to make nondispositive

clarifications.
                                               I. INTRODUCTION

        The State appeals the trial court’s granting of a motion to suppress evidence in favor

of appellee, Donald Glenn Werlla. By one issue, the State contends that the trial court

erroneously granted Werlla’s motion to suppress because the statements made by Werlla

were voluntarily made and not the result of a custodial interrogation. We affirm the trial

court’s judgment with respect to Werlla’s statement regarding ownership of the discovered

pants and crack cocaine.

                             II. FACTUAL AND PROCEDURAL BACKGROUND

        Werlla was charged by indictment with possession of less than one gram of cocaine.

See TEX . HEALTH & SAFETY CODE ANN . § 481.115(a), (b) (Vernon 2003); see id. §

481.102(3)(D) (Vernon Supp. 2007) (listing cocaine in the “Penalty Group 1"). On October

31, 2007, Officers Jose Flores and Ismael Ybarra were dispatched to a Travel Lodge Inn

on 4414 Surfside Boulevard in Nueces County, Texas, to investigate a disturbance. After

speaking with Ben Codge Patel, the manager of the inn, Flores and Ybarra determined that

the disturbance was coming from room 114.1 The manager also identified the occupants

of the room, one being Werlla. Flores ran a records check on Werlla and discovered that

he had an active parole warrant from Austin, Texas. Because he had an active parole

warrant, Flores and Ybarra entered room 114 and placed Werlla under arrest.

        After he was placed in handcuffs, Flores and Ybarra requested consent to search

Werlla’s belongings, to which Werlla responded, “[g]o ahead.” Flores and Ybarra also



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           Officer Flores testified that dispatch originally notified him that the disturbance cam e from room 109.
However, after searching room 109, the officers found that the room was em pty. Patel then notified the
officers that loud disturbances typically em anated from room 114. Patel testified at the suppression hearing
that W erlla had a contract to be in room 107.

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discovered a woman in room 114 with Werlla, but they did not request to search her

belongings. In order to determine which piles of clothing were Werlla’s, Flores and Ybarra

asked him whether the item was his, to which he would answer “yes” or “no.” When

searching the top of Werlla’s pants, Flores and Ybarra found what they believed to be

crack cocaine. Flores and Ybarra did not ask Werlla if the crack cocaine was his.

Moreover, at no point did Flores or Ybarra read Werlla his Miranda rights. See Miranda

v. Arizona, 384 U.S. 436, 444 (1966). On December 6, 2007, Werlla was charged with

possession of a controlled substance.        See TEX . HEALTH & SAFETY CODE ANN . §§

481.115(a), (b), 481.102(3)(D).

       On January 23, 2008, Werlla filed a motion to suppress the search of the hotel

room, alleging that the search was illegal due to lack of probable cause and that no one

with authority gave the police consent to search the hotel room. Werlla also contended the

evidence seized by Flores and Ybarra was “extracted subsequent to [an] illegal search as

fruit of the poisonous tree.” On March 12, 2008, after a pre-trial hearing, the trial court

granted Werlla’s motion to suppress. Also on March 12, 2008, the trial court issued

findings of fact and conclusions of law setting forth the above facts and concluding that

Werlla was lawfully arrested and Werlla’s consent to search was valid, but that the

questioning conducted by Flores and Ybarra regarding Werlla’s belongings amounted to

a custodial interrogation which was prohibited since Werlla had not been provided Miranda

warnings. See Miranda, 384 U.S. at 444.

       On March 14, 2008, the State filed its notice of appeal pursuant to article 44.01(a)(5)

of the code of criminal procedure. See TEX . CODE CRIM . PROC . ANN . art. 44.01(a)(5)

(Vernon Supp. 2007) (providing, among other things, that the State may appeal an order


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of the trial court granting a motion to suppress evidence “if jeopardy has not attached in

the case and if the prosecuting attorney certifies to the trial court that the appeal is not

taken for the purpose of delay and that the evidence, confession, or admission is of

substantial importance in the case”). This appeal ensued.

                                 III. STANDARD OF REVIEW

       “The job of an appellate court in cases” of motions to suppress evidence “is to

review the decision of the lower court for an abuse of discretion.” State v. Dixon, 206

S.W.3d 587, 590 (Tex. Crim. App. 2006); accord Montoya v. State, 810 S.W.2d 160, 174

(Tex. Crim. App. 1989). “We view the record in the light most favorable to the trial court’s

conclusion and reverse the judgment only if it is outside the zone of reasonable

disagreement.” Dixon, 206 S.W.3d at 590; accord Carmouche v. State, 10 S.W.3d 323,

328 (Tex. Crim. App. 2000). “We give almost total deference to a trial court’s express or

implied determination of historical facts and review de novo the court’s application of the

law . . . to those facts.” Dixon, 206 S.W.3d at 590 (citing State v. Ross, 32 S.W.3d 853,

856 (Tex. Crim. App. 2000)). “[G]reat deference is accorded to the trial court’s decision

to admit or exclude such evidence, which will be overturned on appeal only where a

flagrant abuse of discretion is shown.” Delao v. State, 235 S.W.3d 235, 238 (Tex. Crim.

App. 2007).

                                       IV. ANALYSIS

       By its sole issue, the State contends that the statements made by Werlla identifying

the pants containing the crack cocaine as his own were voluntarily made and not the

subject of a custodial interrogation; therefore, no Miranda warnings were necessary, and

the statements should be admitted into evidence. Werlla contends that the statements


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made were the result of custodial interrogation, thus requiring Miranda warnings to be

issued. Because Miranda warnings were not issued, Werlla contends that the statements

are inadmissible and evidence regarding the discovery of the crack cocaine in his pants

should be suppressed because it was “the fruit of the poisonous tree.”2

a. Custody

        “[T]he prophylactic warnings required by Miranda do not attach until the officer has

objectively created a custodial environment and has communicated to the accused his

intention to effectuate custody to the accused himself.” Abernathy v. State, 963 S.W.2d

822, 824 (Tex. App.–San Antonio 1998, pet. ref’d).

        In determining whether an individual was in custody, the ultimate inquiry centers on

whether there was a formal arrest or restraint on freedom of movement of the degree

associated with a formal arrest. Lewis v. State, 72 S.W.3d 704, 707 (Tex. App.–Fort Worth

2002, pet. ref’d) (citing Stansbury v. California, 511 U.S. 318, 322 (1994) (per curiam)).

The determination depends on the objective circumstances, not on the subjective views

of either the interrogating officers or the person being questioned. Id. In addition, the

determination is made on an ad hoc basis. Id. (citing Dowthitt v. State, 931 S.W.2d 244,

255 (Tex. Crim. App. 1996)). 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. Id. An “arrest” occurs “when



        2
          The “fruit of the poisonous tree” doctrine provides that evidence otherwise adm issible but discovered
as a result of an earlier violation is excluded as tainted. See Missouri v. Seibert, 542 U.S. 600, 612 (2004).
However, “the court in Elstad rejected . . . the fruits doctrine for analyzing the adm issibility of a subsequent
warned confession following ‘an initial failure . . . to adm inister the warnings required by Miranda.’” Id. at 612
n.4 (quoting Or. v. Elstad, 470 U.S. 298, 300 (1985)). In fact, “‘a sim ple failure to adm inister the warnings,
unaccom panied by any actual coercion or other circum stances calculated to underm ine the suspect’s ability
to exercise his free will,’ did not ‘so tain[t] the investigatory process . . . .’” Id. (quoting Elstad, 470 U.S. at
309).
                                                         5
a person’s liberty of movement is successfully restricted or restrained, whether this is

achieved by an officer’s physical force or the suspect’s submission to the officer’s

authority.” Medford v. State, 13 S.W.3d 769, 773 (Tex. Crim. App. 2000). An arrest is

complete only if “a reasonable person in the suspect’s position would have understood the

situation to constitute a restraint on freedom of movement of the degree which the law

associates with a formal arrest.” Id. (citing United States v. Corral-Franco, 848 F.2d 536,

540 (5th Circ. 1988)). The subjective intent of either the police officer or the defendant is

irrelevant. Id. at 773-74.

       Flores testified that upon encountering Werlla leaving the restroom in room 114, he

and Ybarra handcuffed Werlla and placed him in a chair in a doorway. After being

handcuffed, Werlla asked Flores why he was being detained, and Flores informed Werlla

about the parole warrant from Austin. Clearly, Werlla was not free to leave. Moreover, the

parties do not dispute the fact that Werlla was in custody. We must now determine

whether Werlla was entitled to Miranda warnings prior to the questioning conducted by

Flores and Ybarra.

b. Miranda Warnings

       Miranda holds that when a criminal suspect is placed in custody, law enforcement

personnel must comply with certain procedural safeguards in order to protect the suspect’s

privilege against compulsory self-incrimination under the Fifth Amendment. See Miranda,

384 U.S. at 444; see also U.S. CONST . amend. V. Miranda and its progeny hold that

incriminating statements made by the accused are inadmissible if the authorities have not

given the requisite warnings and the accused has not waived these rights. See Rhode

Island v. Innis, 446 U.S. 291, 302 (1980).


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        However, Miranda’s safeguards apply only when a suspect is placed in custody and

interrogated by police. Id. at 300; Jones v. State, 795 S.W.2d 171, 174-75 (Tex. Crim.

App. 1990). Custodial interrogation for purposes of Miranda includes both express

questioning, and also words or actions that, given the officers’ knowledge of any special

susceptibilities of the suspect, the officer knows or reasonably should know are likely to

“have . . . the force of a question on the accused,” and therefore are reasonably likely to

elicit an incriminating response. Pennsylvania v. Muniz, 496 U.S. 582, 601 (1990)

(citations omitted); Jones, 795 S.W.2d at 174. The latter part of this definition focuses

primarily upon the perceptions of the suspect, rather than the intent of the police.3 Innis,

446 U.S. at 301.

        Not all post-arrest police questioning can be classified as interrogation. See Jones,

795 S.W.2d at 174 n.3.4 Statements given freely and voluntarily are admissible in

evidence. Miranda, 384 U.S. at 478. In distinguishing situations which require Miranda’s

safeguards, the Miranda court pointed to isolation and intimidation as key aspects of an

interrogation that undermine an individual’s ability to speak voluntarily. Id. at 449-51.

When an accused in custody spontaneously volunteers information that is not in response

to earlier interrogation by authorities, the statement is admissible even though not recorded

because it is not the product of custodial interrogation. Stevens v. State, 671 S.W.2d 517,

        3
           The State argues that the questioning of W erlla was done “solely . . . to establish ownership of
defendant’s belongings.” However, this argum ent fails because we m ust focus on the perceptions of W erlla,
not the intent of the police. See Rhode Island v. Innis, 446 U.S. 291, 301 (1980).

        4
          The Texas Court of Crim inal Appeals enum erated different broad categories which do not constitute
interrogation: routine inquiries, questions incident to booking, general questions such as "what happened"
upon arrival at the scene, and questions m andated by public safety concerns. Jones v. State, 795 S.W .2d
171, 174 n.3. For exam ple, asking a DW I suspect "[w]here are you going" does not constitute interrogation.
Massie v. State, 744 S.W .2d 314 (Tex. App.–Dallas 1988, pet. ref'd). Moreover, m erely asking a suspect
about the location of the m urder weapon does not constitute interrogation. DeLeon v. State, 758 S.W .2d 621,
624-25 (Tex. App.–Houston [14th Dist.] 1988, no pet.).

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520 (Tex. Crim. App. 1984).

       Article 38.22 of the code of criminal procedure codifies both Miranda’s system of

protecting a suspect against self-incrimination and its distinction between voluntary

statements and compelled confessions. TEX . CODE CRIM . PROC . ANN . art. 38.22 §§ 2, 3,

5 (Vernon 2005); see State v. Waldrop, 7 S.W.3d 836, 838 (Tex. App.–Austin 1999, no

pet.). Article 38.22 prohibits the admission of a written or oral statement made as a result

of custodial interrogation by an accused in a criminal proceeding without the warning

required by Miranda. TEX . CODE CRIM . PROC . ANN . art. 38.22 § 2(a). However, section five

of article 38.22 states that nothing in the article precludes the admission of a statement that

is either (1) res gestae of the arrest or offense, (2) a statement that does not stem from

custodial interrogation, or (3) a voluntary statement, whether or not the result of custodial

interrogation. Id. § 5. If statements are not made as a result of custodial interrogation, the

requirements of Miranda and article 38.22 do not apply. See Waldrop, 7 S.W.3d at 839;

Gruber v. State, 812 S.W.2d 368, 371 (Tex. App.–Corpus Christi 1991, pet. ref’d) (holding

that a statement which is volunteered and not the product of custodial interrogation is

admissible). Thus, if Werlla’s statements were not the result of custodial interrogation, they

are admissible. See Waldrop, 7 S.W.3d at 839.

       The State argues that the questioning conducted by Flores and Ybarra did not

amount to a custodial interrogation. Specifically, the State contends that the questioning

was attendant to Werlla’s arrest. Moreover, the State asserts that Werlla voluntarily gave

the officer consent to search his belongings and that the questioning pertained solely to

the consent search of Werlla’s belongings. We disagree.

       At the suppression hearing, Flores testified that no Miranda warnings were ever


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given to Werlla. In addition, Flores testified to the following:

       Q: [The State]        Now, Officer Flores, you’re saying after he was
                             handcuffed, did you speak with the Defendant?

       A: [Flores]           When—once he was handcuffed he asked [for the]
                             reason for us being there and we stated that he was
                             wanted out of the parole board and he said okay.

       Q:                    And did you ask him anything else?

       A:                    We asked for a consent to search his properties, his
                             belongings.

       Q:                    And what was his response?

       A:                    “Go ahead.”

              ....

       Q:                    And did you search all the items in the room?

       A:                    We searched everything that belonged to him.

       Q:                    How did you—I’m sorry, how did you know which items
                             belonged to him?

       A:                    We would ask if it was his and he would state yes or no.

       Q:                    Okay. And on some of the items that he said were his,
                             did you find anything out of the ordinary?

       A:                    Yes ma’am, [an] article of clothing he had was a pair of
                             jeans. We found—I found a white rock-like substance
                             through all the training experiences known to be crack
                             cocaine. It was in plain view on top of his pants in his
                             bedroom.

       Q:                    But you—had you seen those items—had you seen the
                             crack before you started looking through his clothes?

       A:                    Yes, ma’am, it was on top of the clothes.

       Flores’s testimony indicated that Werlla was asked whether the pair of pants were

his after Flores had viewed the crack cocaine on top of the pants. Therefore, Flores’s

                                              9
question was intended to determine whether Werlla owned the pants and whether the

crack cocaine was Werlla’s. This conclusion is further supported by Flores’s admission

that Werlla was not asked later whether the crack cocaine was his. We conclude that the

line of questioning regarding the ownership of the pants constituted a custodial

interrogation of Werlla conducted for the purpose of eliciting an incriminating response.

See Innis, 446 U.S. at 301; Russell v. State, 215 S.W.3d 531, 535, 36 (Tex. App.–Waco

2007, pet. ref’d); see also Zhi Jun Xu v. State, 191 S.W.3d 210, 215-16 (Tex. App.–San

Antonio 2005, no pet.). This conduct is not permitted because the officers did not read

Miranda warnings to Werlla prior to the questioning. See Miranda, 384 U.S. at 444; see

also Stansbury, 511 U.S. at 322 (“[A] person questioned by law enforcement officers after

being ‘taken into custody or otherwise deprived of his freedom of action in any significant

way’ must first ‘be warned that he has a right to remain silent, that any statement he does

make may be used as evidence against him, and that he has a right to the presence of an

attorney, either retained or appointed.’”). We therefore conclude that the trial court did not

abuse its discretion in suppressing Werlla’s statement with respect to ownership of the

pants and the crack cocaine.5 Accordingly, we overrule the State’s sole issue.

                                                V. CONCLUSION

         We affirm the judgment of the trial court with respect to Werlla’s statement regarding



         5
          Neither the trial court’s order granting W erlla’s m otion to suppress evidence regarding the search
of the hotel room , nor the trial court’s findings of fact or conclusions of law reference the adm issibility of crack
cocaine into evidence. The record does not indicate that W erlla’s consent to search was the product of
coercion. Therefore, we cannot say that the seizure of the crack cocaine from the hotel room should have
been suppressed. See U.S. v. Patane, 542 U.S. 630, 633 (2004) (holding that a failure to give a suspect
Miranda warnings did not require the suppression of physical fruits of the suspect’s unwarned but voluntary
statem ent); see also Baker v. State, 956 S.W .2d 16, 22 (Tex. Crim . App. 1997) (stating that the “fruit of the
poisonous tree” doctrine only “requires suppressing the fruits of a defendant’s statem ent only when the
statem ent was obtained through actual coercion”); Rodriguez v. State, 191 S.W .3d 428, 456-57 (Tex.
App.–Corpus Christi 2006, pet. ref’d).
                                                         10
the ownership of the pants and the crack cocaine. Werlla’s appellate attorney has asked

permission to withdraw as counsel. We grant the motion to withdraw, and we order

counsel to notify Werlla of the disposition of this appeal and the availability of discretionary

review. See Ex parte Wilson, 956 S.W.2d 25, 27 (Tex. Crim. App. 1997) (per curiam).



                                                   DORI CONTRERAS GARZA,
                                                   Justice

Do not publish.
TEX . R. APP. P. 47.2(b).
Memorandum Opinion on Rehearing delivered
and filed this the 4th day of December, 2008.




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