                                         COURT OF APPEALS
                                      EIGHTH DISTRICT OF TEXAS
                                           EL PASO, TEXAS


    THOMAS RAY BRADEN, JR.,                              '
                                                                            No. 08-11-00034-CR
                                   Appellant,            '
                                                                               Appeal from the
    v.                                                   '
                                                                              97th District Court
                                                         '
    THE STATE OF TEXAS,                                                 of Montague County, Texas
                                                         '
                                   Appellee.              '             (TC# 2008-0000041M-CR)



                                                 OPINION

         Appellant, Thomas Ray Braden, Jr., appeals his conviction for Sexual Assault of a Child.

Appellant’s sole point of error presented is that the trial court erred by admitting two written

statements into evidence signed by Appellant. He alleges that these statements were obtained in

violation of the Due Process Clause of the 14th Amendment. We affirm.1

                                    PROCEDURAL BACKGROUND

         Appellant was indicted on one count of Sexual Assault of a Child. He entered a plea of

not guilty to the charge on November 16, 2010. On November 17, 2010, a hearing was held

outside the presence of the jury regarding Appellant’s Motion to Suppress Evidence, which the

court denied.2 Following a three-day jury trial, Appellant was found guilty. The jury assessed

his punishment at twenty-five (25) years in the Institutional Division of the Texas Department of

Criminal Justice and a fine of $2,500. Appellant timely filed a notice of appeal.

1
  This case was transferred from the Second Court of Appeals to this Court pursuant to a docket equalization order
entered by the Texas Supreme Court. See TEX.GOV’T CODE ANN. § 73.001 (West 2005). We have applied
precedent of the Fort Worth Court of Appeals. See TEX.R.APP.P. 41.3.
2
  The trial court issued findings regarding Appellant’s motion both on the record and supported with separate written
findings regarding the written statements. See TEX.CODE CRIM.PROC.ANN. art. 38.22, § 6 (West 2005).
                                  FACTUAL BACKGROUND

       On or about November 27, 2007, a student reported to a high school counselor that her

friend, a fourteen-year old student hereafter referred to as “B.B.,” had been inappropriately

touched by Appellant, B.B.’s step-father. The counselor spoke to B.B., who advised that she had

been touched inappropriately by Appellant. Subsequently B.B. and her mother, Mrs. Braden, met

with Officer Lance Provost of the Saint Jo Police Department. Officer Provost took B.B. and

Mrs. Braden to the Patsy’s House Children’s Advocacy Center in Bowie, Texas, where B.B. was

interviewed by an investigator with CPS.

       Following that interview, Officer Provost and Mrs. Braden went to the residence where

Mrs. Braden and Appellant lived so that Officer Provost could meet with Appellant. Officer

Provost testified that he met with Appellant and Mrs. Braden at their residence. Officer Provost

informed Appellant that he was not under arrest and requested that Appellant sign a form

acknowledging the same, which he did. Officer Provost testified that Appellant did not appear

intoxicated. According to the testimony of Officer Provost, he asked Appellant if he knew why

he was there, to which Appellant responded that he had accidentally touched B.B. between her legs

while wrestling. Officer Provost then asked Appellant if he had ever digitally penetrated B.B.’s

vagina and Appellant responded that he had done so on ten or more occasions.

       Following this, Officer Provost asked Appellant to prepare an “apology letter,” which

Appellant agreed to do. Because of his limited ability to read and write, Officer Provost wrote the

letter for Appellant. Officer Provost testified that he transcribed what Appellant told him to write

and that Appellant signed the letter himself. Officer Provost also testified that he read the letter

back to Appellant as it was written and that Appellant signed it only after he agreed with its


                                                 2
contents. Officer Provost then took a formal statement from Appellant, in a “Question and

Answer” format, and testified that the statement was given freely and voluntarily, and that

Appellant did not appear to be under the influence of an intoxicant. On cross-examination,

Officer Provost testified that he intended on using any statement he obtained from Appellant and

that he was gathering evidence to be used against Appellant.

       At the suppression hearing, Mrs. Braden testified that she woke Appellant up to inform him

of the officer’s arrival and testified that Appellant was “extremely intoxicated.” Mrs. Braden

testified that when she left for work that morning there was a 30-pack of beer in the refrigerator,

that when she and Officer Provost arrived at the residence there were thirty beer cans in the trash,

and that Appellant smelled of beer when she woke him up to advise him of Officer Provost’s

presence. However, she also testified that she did not witness him drink any beer during the day.

Mrs. Braden testified that Officer Provost asked her to leave the room, an event which Officer

Provost testified that he did not recall. Mrs. Braden further testified that Appellant only had a

fourth-grade reading level.

       The Appellant did not testify at the suppression hearing.

       At the conclusion of the suppression hearing, the trial court noted that all the documents

presented bore Appellant’s signature, that Appellant was not in custody or under arrest at the time

that he made these statements, that the statements were not custodial statements, that Appellant

was not given admonishments of constitutional and statutory rights and privileges, that no

improper inducements were offered or given to Appellant prior to, during, or after the statements

were given, that the written statements are admissible, and that Appellant’s objections are

overruled. The trial court also prepared written findings of fact relating the above.


                                                 3
                                          DISCUSSION

       Appellant’s sole point of error asserts that the trial court erred by admitting into evidence

two written statements: the apology letter, and the formal statement, because they were obtained

in violation of the Due Process Clause of the 14th Amendment as they were not given “freely” and

“voluntarily.” Appellant contends that the statements were not given freely and voluntarily

inasmuch as he was intoxicated and was being subjected to coercive and unreasonable police

conduct. Because the written statements were not a product of custodial interrogation and were

given freely and voluntarily, we conclude that the trial court properly denied Appellant’s motion to

suppress.

       Appellant argues that there are five specific facts which support his contention that the first

statement, the apology letter, was “coerced:” (1) no Miranda warnings were provided; (2)

Appellant was “extremely intoxicated;” (3) Appellant could not write the statements himself; (4)

no independent person witnessed the process regarding the statements; and (5) Appellant was told

that the purpose of the statement was an “apology letter” to be used to help the victim heal.

Appellant argues that once the apology letter was obtained using coercive tactics the second

statement, the formal “question and answer” statement, is fruit of the poisonous tree and/or was

also coerced.

       The Texas Code of Criminal Procedure article 38.22 prohibits the admission of an

accused’s statement resulting from a custodial interrogation unless the accused was advised of his

Miranda rights and voluntarily waived those rights. TEX.CODE CRIM.PROC.ANN. art. 38.22,

§§ 2(a), 2(b), 3(a)(2)(West 2005); see Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16

L.Ed.2d 694 (1966); see also Herrera v. State, 241 S.W.3d 520, 526 (Tex.Crim.App. 2007)(“Our


                                                 4
construction of ‘custody’ for purposes of Article 38.22 is consistent with the meaning of ‘custody’

for purposes of Miranda.”). However, the warnings required by Article 38.22 and Miranda only

apply when a suspect is in custody. See Herrera, 241 S.W.3d at 526.

         A person is “in custody” if, under the circumstances, a reasonable person would believe his

freedom of movement was restrained to the degree associated with a formal arrest. Stansbury v.

California, 511 U.S. 318, 322-24, 114 S.Ct. 1526, 1528-30, 128 L.Ed.2d 293 (1994); Dowthitt v.

State, 931 S.W.2d 244, 254 (Tex.Crim.App. 1996).3 We determine custody based on objective

circumstances, and any subjective intent of law enforcement officers or the person being

questioned are not controlling. Stansbury, 511 U.S. at 323, 114 S.Ct. at 1529.

         Because questions of custody present a mixed question of law and fact, we afford almost

total deference to a trial judge’s “custody” determination when the questions of historical fact turn

on credibility and demeanor, although when the questions of historical fact do not turn on

credibility and demeanor, we review a trial judge’s “custody” determination de novo. See

Herrera, 241 S.W.3d at 526-27; see also Jeffley v. State, 38 S.W.3d 847, 853 (Tex.App.--Houston

[14th Dist.] 2001, pet. ref’d). The defendant, not the State, carries the initial burden of

establishing that a statement was the product of custodial interrogation. Herrera, 241 S.W.3d at

526. A custody inquiry also includes an examination of all of the objective circumstances


3
   As the Court of Criminal Appeals noted in Dowthitt, Texas courts have identified four general situations which may
constitute custody: (1) when the suspect is physically deprived of his freedom of action in a significant way; (2) when
a law-enforcement official tells a suspect 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) if
there is probable cause to arrest and law-enforcement officials do not tell the suspect that he may leave. Dowthitt, 931
S.W.2d at 255, citing Shiflet v. State, 732 S.W.2d 622, 629 (Tex.Crim.App. 1985). The restraint upon freedom in the
first three situations must be equivalent with that associated with an arrest as opposed to an investigative detention.
See Dowthitt, 931 S.W.2d at 255. In the fourth situation, the officer’s knowledge of probable cause must be
manifested to the suspect, and such manifestation, considered in the totality of the circumstances, must lead a
reasonable person to believe he is not free to leave. Id.

                                                           5
surrounding the questioning. Dowthitt, 931 S.W.2d at 255. Being the focus of the investigation

does not equate to being in custody. Meek v. State, 790 S.W.2d 618, 621 (Tex.Crim.App. 1990).

        Here, considering the totality of the circumstances, several factors tend to show that

Appellant was not in custody when he made the statements. The record indicates that Appellant

was not under arrest or being interrogated at a station house, but was being questioned at his own

residence. Further, Officer Provost testified that he informed Appellant that he was not under

arrest, and requested that Appellant sign a form acknowledging the same4, which he did. While at

his residence, Appellant was not restrained in any way or forbidden from leaving the residence.

Based on a review of the record, Appellant never asked to terminate the interview, never asked to

leave the residence, and never asked to speak to anyone.

        After considering all the circumstances regarding the interview, we agree with the trial

court that a reasonable person in Appellant’s situation would not feel restrained to the degree

associated with a formal arrest or “custody.” Furthermore, according almost total deference to

the trial court’s determination regarding Mrs. Braden and Officer Provost’s credibility and

demeanor as we are required to do, it is clear that the trial court did not abuse its discretion by

finding that Appellant was not in custody at the time he gave his written statement. Because

Appellant was not in custody, the provisions of Article 38.22 do not apply to the statements and no

Miranda warning was required. See Ford vs. State, 2009 WL 160922, *6 (Tex.App.--Fort Worth

Jan. 22, 2009, pet. ref’d)(memo. op., not designated for publication).

        Turning to Appellant’s argument that he was intoxicated, an examination of the record as a

whole does not support his claim that he was intoxicated at the time he made the written

4
 An “Acknowledgment of Not Under Arrest” form, in which Appellant acknowledged that he understood that he was
not in custody and was free to leave at any time. See, e.g. Phillips vs. State, 2004 WL 362253, *1 (Tex.App.--Fort
Worth Feb. 26, 2004, no. pet.)(not designated for publication)(noting existence and purpose of this form).
                                                        6
statements. Furthermore, even if he was intoxicated at the time, that fact alone does not serve to

make the confession and written statements involuntary. See Nichols v. State, 754 S.W.2d 185,

190-91 (Tex.Crim.App. 1988); Garcia v. State, 919 S.W.2d 370, 387 (Tex.Crim.App. 1994)

(citing Nichols). The trial court is the sole judge of the weight and credibility of the evidence

presented at a hearing to suppress evidence and, absent a clear abuse of discretion, the trial court’s

finding may not be disturbed. Garcia, 919 S.W.2d at 387.

         The only evidence presented in support of Appellant’s alleged intoxication is the testimony

of Mrs. Braden, who did not testify that she witnessed Appellant drinking, but made her

assumption based on the presence of empty beer cans and the smell of beer. Officer Provost

testified that Appellant did not appear intoxicated. While the trial court did not make a specific

finding of fact regarding Appellant’s intoxication, the record does not support Appellant being

intoxicated. As a result, the trial court did not abuse its discretion in finding that the written

statements were given voluntarily.5

         Appellant next argues that he was unable to write out the statements himself. The Texas

Code of Criminal Procedure article 38.22(1) defines a “written statement” as:

         [A] statement signed by the accused or a statement made by the accused in his own
         handwriting or, if the accused is unable to write, a statement bearing his mark,
         when the mark has been witnessed by a person other than a peace officer.

TEX.CODE CRIM.PROC.ANN. art. 38.22(1).

         In overruling Appellant’s motion to suppress, the trial court specifically addressed this

issue, holding that each of the statements bore Appellant’s signature and that “[t]he Court finds

that this is a signature, not a mark. The Court further finds, based on the testimony, that the


5
  The issues of voluntariness and intoxication were presented to the jury in the jury charge, which the jury received
and considered before finding Appellant guilty.
                                                          7
defendant is able to read and write at a fourth-grade level.” Several Texas courts have held that a

suspect may be uneducated and illiterate and yet still understand the nature of the rights he is

waiving and voluntarily give a confession. See Martinez v. State, 131 S.W.3d 22, 35

(Tex.App.--San Antonio 2003, no pet.); Peacock v. State, 819 S.W.2d 233, 235 (Tex.App.--Austin

1991, no pet.); Perales v. State, 2008 WL 4531659, *4 (Tex.App.--Fort Worth Oct. 9, 2008, pet.

dism’d, untimely filed)(memo. op., not designated for publication). The trial court did not abuse

its discretion in rejecting this argument.

       Appellant’s fourth assertion is that no independent person witnessed the process of

obtaining the statements. Appellant cites no case law or statute in support of this argument.

Neither the Texas Code of Criminal Procedure or Texas case law imposes such a requirement,

absent the situation where a suspect is unable to write his own signature and a mark is substituted.

See TEX.CODE CRIM.PROC.ANN. art. 38.22(1). As that is not the case here, where Appellant

signed his own name, this argument is without merit.

       Appellant’s final issue is that the apology letter was coerced. He argues that “[i]t is

obvious that Officer Provost was playing on the heart strings of an extremely intoxicated father.”

The trial court, in making its findings denying the motion to suppress, specifically found that no

improper inducements were offered or given to Appellant prior to, during, or after the statements

were given. The use of tactics which capitalize on an accused’s “moral sense of right and wrong”

or comprise “moral urging” does not in itself render an accused’s statement involuntary, but is

another circumstance to consider in the totality of the circumstances in examining the

voluntariness of a statement. See Nenno v. State, 970 S.W.2d 549, 558 (Tex.Crim.App. 1998);

Gomes v. State, 9 S.W.3d 373, 378 (Tex.App.--Houston [14th Dist.] 1999, pet. ref’d)(same).


                                                 8
       In reviewing the totality of the circumstances, we conclude that the trial court did not abuse

its discretion by finding that Appellant’s will was not overborne and there was no coercion in

obtaining either the first or second written statements. Given our holding that the first written

statement was obtained properly, the second written statement is not “fruit of the poisonous tree.”

The trial court did not abuse its discretion by finding that the written statements were given

voluntarily. Accordingly, we overrule Appellant’s sole point of error.

                                         CONCLUSION

       Having overruled Appellant’s only point of error, we affirm the trial court’s judgment.




March 28, 2012
                                              CHRISTOPHER ANTCLIFF, Justice

Before McClure, Rivera, and Antcliff, JJ.

(Do Not Publish)




                                                 9
