Opinion issued April 23, 2015




                                     In The

                              Court of Appeals
                                    For The

                          First District of Texas
                            ————————————
                              NO. 01-14-00054-CR
                           ———————————
                ALPHONSON DAMON MALONE, Appellant
                                       V.
                      THE STATE OF TEXAS, Appellee


          On Appeal from the County Criminal Court at Law No. 8
                          Harris County, Texas
                      Trial Court Cause No. 1899612




               MEMORANDUM OPINION ON REHEARING

      Alphonson Damon Malone pled guilty of the offense of possession of

marijuana of a quantity between zero and two ounces, and the trial court sentenced

him to two days’ confinement. Malone moved to suppress both his inculpatory
statement to an officer and the marijuana found on his person. After a hearing, the

trial court denied the motion to suppress. On appeal, Malone contends that he

made his statement in response to a custodial interrogation that occurred before he

received Miranda warnings. He further contends that no probable cause existed

for his arrest, which occurred before he confessed to possessing marijuana. After a

panel of our court issued its opinion in this case, Malone moved for rehearing. The

panel denies the motion for rehearing, withdraws its opinion and judgment, and

issues this opinion and judgment in its stead. We conclude that the evidence

adduced at the motion to suppress hearing supports the trial court’s ruling; we

therefore affirm.

                                  Background

      In June 2013, Officer T. Sutton of the Humble Police Department received a

phone call from Officer N. Ball, who reported that he had observed two customers

who smelled like marijuana while he was working an extra job at a Red Lobster

Restaurant. As the customers were leaving the restaurant, Ball notified Sutton of

his suspicion, and he provided the customers’ description and a license plate

number.    En route, Officer Sutton passed the car matching Officer Ball’s

description. The driver did not lower his high beam lights as he passed in front of

Officer Sutton’s car, which is a violation of the Texas Transportation Code Section




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547.305. See TEX. TRANSP. CODE ANN. § 547.305 (West 2014). Officer Sutton

stopped the car to investigate.

      As Officer Sutton approached the vehicle, he noticed “marijuana shake,” or

residue, on the driver’s left shoulder. He also smelled cologne. He asked the

driver to exit and then detained the driver with handcuffs. Sutton also asked the

passenger, Malone, to exit the vehicle and handcuffed him.

      After about one minute, another officer arrived. Officer Sutton directed him

to detain the driver in the back of his police car. Sutton asked the driver whether

he had marijuana on his person or in his car; the driver responded that he did not.

After about 10 minutes Sutton approached Malone, stating: “You’re not going to

BS me like your buddy . . . You’re going to be honest with me about what’s going

on here.” Malone responded: “I’m going to be honest with you. I have a sweet in

my pocket.” Officer Sutton knew through his training and experience that Malone

was describing a sweet containing marijuana. Sutton reached into Malone’s pocket

and retrieved a sweet containing over one gram of marijuana. Both Malone and

the driver were compliant with Sutton’s requests, both at the time of the traffic stop

and during the detention.

      Course of Proceedings

      Malone moved to suppress the marijuana found in his pocket and the

statement he made after being apprehended. After a hearing, the trial court denied



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Malone’s motion to suppress. In its findings, the trial court determined that Officer

Sutton was a credible witness. In its conclusions of law, the trial court ruled that

Malone was under arrest when Officer approached him, but that Malone’s response

was not the product of a custodial interrogation.

                                    Discussion

Statement Made in the Absence of Miranda Warnings

      Standard of Review

      An appellate court conducts a bifurcated review to a trial court’s findings

regarding a motion to suppress, deferring to the trial judge’s rulings on questions

of historical fact. Alford v. State, 358 S.W.3d 647, 652 (Tex. Crim. App. 2012).

We similarly defer to the trial court’s determinations of mixed questions of law and

fact that turn on demeanor and credibility. State v. Saenz, 411 S.W.3d 488, 494

(Tex. Crim. App. 2013) (citing State v. Ortiz, 382 S.W.3d 367, 372 (Tex. Crim.

App. 2012)). In contrast, we review de novo mixed questions of law and fact that

do not turn on demeanor and credibility. Id. Particular to the facts presented here,

“[t]he decision as to whether custodial questioning constitutes ‘interrogation’ under

Miranda is a mixed question of law and fact, and we defer to the trial court’s fact

findings that turn on an evaluation of credibility and demeanor.” Alford, 358

S.W.3d at 653 (citing Ripkowski v. State, 61 S.W.3d 378, 381–82 (Tex. Crim. App.

2001)).



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      Analysis

      Malone first contends that the trial court abused its discretion when it denied

the motion to suppress his statement because Officer Sutton had not warned

Malone of his Miranda rights. Both Miranda v. Arizona and state law prohibit the

State from introducing a defendant’s statements made during a custodial

interrogation, unless the State demonstrates that, before making the statement, the

police had informed the defendant of certain constitutional rights. 384 U.S. 436,

444, 86 S. Ct. 1602, 1612 (1966); see also TEX. CODE CRIM. PROC. ANN. art. 38.22

§§ 2, 3 (West 2014). The Supreme Court has defined a “custodial interrogation” as

“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.” Miranda, 384 U.S. at 444, 86 S. Ct. at 1612.

      But if a defendant volunteers a statement, then it is not subject to

suppression for lack of Miranda warnings. Warren v. State, 377 S.W.3d 9, 17

(Tex. App.—Houston [1st Dist.] 2011, pet. ref’d). The Fifth Amendment does not

bar “[v]olunteered statements of any kind.” Miranda, 384 U.S. at 478, 86 S. Ct. at

1630. Article 38.22 similarly does not preclude the admission of statements made

by the defendant that do not stem from an interrogation. TEX. CODE CRIM. PROC.

ANN. art. 38.22 § 5 (West 2014) (“Nothing in this article precludes the admission




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of . . . a voluntary statement . . . whether or not the result of custodial interrogation

. . . .”).

         Because Malone was detained and handcuffed during the investigation

without any other circumstances warranting a restriction on Malone’s movement,

the record supports the trial court’s determination that Malone was in custody.

Thus, this case turns on whether Officer Sutton’s statement to Malone rose to the

level of an interrogation, or whether Malone’s statement was made voluntarily.

         To be an interrogation, a statement or question must demonstrate “a measure

of compulsion above and beyond that inherent in custody itself.” Rhode Island v.

Innis, 446 U.S. 291, 300, 100 S. Ct. 1682, 1689 (1980). An interrogation includes

“any words or actions on the part of the police (other than those normally attendant

to arrest and custody) that the police should know are reasonably likely to elicit an

incriminating response from the suspect.” Id. at 301.

         In Innis, the Supreme Court held that police officers had not interrogated a

suspect when officers had a conversation in the range of the suspect’s hearing but

did not ask the suspect a question. Id. at 294–95, 302. In that case, officers

discussed a missing shotgun while transporting the defendant, noting a concern

that children were present in the area and could discover the weapon. Id. at 294–

95. The suspect interrupted the officers’ conversation with a statement. Id. at 295.

After receiving Miranda warnings, he led them to the hidden weapon. Id. The



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Supreme Court found that the officers’ conversation was not an interrogation. Id.

at 302.

      In contrast, the Texas Court of Criminal Appeals in Janecka found that a

police detective’s response to a suspect’s question constituted interrogation or its

equivalent. Janecka v. State, 739 S.W.2d 813, 829 (Tex. Crim. App. 1987) (per

curiam). There, the detective informed the suspect of the damaging evidence

against him, and then told the suspect that he should “tell the truth.” Id. at 826,

829. Similarly, in Ramirez, the Austin Court of Appeals found that an officer’s

statements to a suspect were the functional equivalent of interrogation, where the

officer informed the suspect that marijuana paraphernalia and residue were present

in the suspect’s garage, and then asked whether more could be found. Ramirez v.

State, 105 S.W.3d 730, 740–41 (Tex. App.—Austin 2003, no pet). The court of

appeals held that the officer should have known that his questioning would

encourage an incriminating response. Id. at 741 (citing Innis, 446 U.S. at 301, 100

S. Ct. 1682). Malone relies on the latter cases to contend that Sutton should have

known that his words or actions were reasonably likely to elicit an incriminating

response.

      We hold that the record supports the trial court’s finding that the statement

was not reasonably likely to move Malone to make a self-incriminating statement.

Officer Sutton’s statement was not a “lengthy harangue,” and the record does not



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suggest that Sutton was aware of any particular susceptibility that Malone had to

the officer’s appeal to his conscience. See Innis, 446 U.S. at 302–03, 100 S. Ct. at

1690–91. In its findings of fact, the trial court described Malone’s statement as

“spontaneously” made. Officer Sutton had not informed Malone of any damaging

evidence against him, nor had he asked Malone any questions. See Janecka, 739

S.W.2d at 826; Ramirez, 105 S.W.3d at 741.

      Officer Sutton testified that his statement to Malone was not threatening.

The trial judge found that Officer Sutton was a credible witness, and we defer to

the trial court’s findings that turn on credibility. Alford, 358 S.W.3d at 652–53.

We hold that the record supports a determination that Malone’s statement was

voluntarily made and not the result of a police interrogation. See id.; see also TEX.

CODE CRIM. PROC. ANN. art. 38.22 § 5; Innis, 446 U.S. at 300, 100 S. Ct. at 1689

(“[T]he special procedural safeguards outlined in Miranda are required not where a

suspect is simply taken into custody, but rather where a suspect in custody is

subjected to interrogation.”).

Probable Cause

      Next, Malone argues that there was no probable cause to arrest him. The

Fourth Amendment prohibits unreasonable searches and seizures by government

officials. Wiede v. State, 214 S.W.3d 17, 24 (Tex. Crim. App. 2007). An officer

may arrest a suspect without a warrant if he has a reasonable belief that the



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individual has committed an offense. TEX. CODE CRIM. PROC. ANN. art. 14.01

(West 2013); Torres v. State, 182 S.W.3d 899, 901–02 (Tex. Crim. App. 2005).

The test for probable cause is whether “at that moment [of the arrest] the facts and

circumstances within the officer’s knowledge and of which he had reasonably

trustworthy information were sufficient to warrant a prudent man in believing that

the arrested person had committed or was committing an offense.” Parker v. State,

206 S.W.3d 593, 596 (Tex. Crim. App. 2006) (quoting State v. Steelman, 93

S.W.3d 102, 107 (Tex. Crim. App. 2002)).         We consider the totality of the

circumstances in determining whether probable cause existed for a warrantless

arrest. Amador v. State, 275 S.W.3d 872, 878 (Tex. Crim. App. 2009). “It is well

established that an officer who does not himself possess probable cause for making

a warrantless arrest may act upon the basis of information relayed to him by

another officer requesting that an arrest be made.” Pyles v. State, 755 S.W.2d 98,

109 (Tex. Crim. App. 1988) (quoting Tarpley v. State, 565 S.W.2d 525, 529 (Tex.

Crim. App. [Panel Op.] 1978)). When members of the same law enforcement

agency have cooperated, the sum of information known to cooperating officers at

the time of an arrest should be considered in determining whether there was

probable cause. Id. (citing Woodward v. State, 668 S.W.2d 337, 344 (Tex. Crim.

App. 1982)). The “odor of an illegal substance” may be a factor that police

officers use in determining whether there is probable cause that an offense has



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been or is being committed.” Estrada v. State, 154 S.W.3d 604, 606, 609 (Tex.

Crim. App. 2005) (holding that smell of marijuana on appellant, who was standing

in her driveway, was factor weighing in favor of officer’s belief that crime had

been or was being committed).

      Probable cause to search exists where known facts and circumstances are

sufficient to warrant a person of reasonable prudence that evidence of a crime will

be found. Wiede, 214 S.W.3d at 24; Estrada, 154 S.W.3d at 609. “Known facts

and circumstances include those personally known to law enforcement officers or

those derived from a ‘reasonably trustworthy’ source.” Wiede, 214 S.W.3d at 24.

An officer may conduct a search without a warrant when an individual admits to

possessing contraband. See Sandoval v. State, 860 S.W.2d 255, 259–60 (Tex.

App.—Houston [1st Dist.] 1993, pet. ref’d) (“[T]he officer’s search of appellant’s

truck and seizure of the evidence inside was justified, following their detection of

the marijuana odor, and appellant’s admission that the truck contained

marijuana.”); Nuttall v. State, 87 S.W.3d 219, 223 (Tex. App.—Amarillo 2002, no

pet.) (holding that officer had probable cause to search defendant’s pocket when

defendant admitted he had drugs on his person).

      No 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.



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TEX. CODE CRIM. PROC. ANN. art. 38.23(a) (West 2014).

      Malone contends that Officer Sutton did not have probable cause to arrest

him before he made the statement admitting that he possessed marijuana. The sum

of the information known to Officer Sutton and Officer Ball at the time Sutton

handcuffed Malone, however, includes that (1) Officer Ball had smelled marijuana

on Malone and the driver an hour before the traffic stop when both men were

eating at Red Lobster; (2) the license plate number of the men seen at the

restaurant matched that of the car Officer Sutton stopped; (3) the driver of the car

had marijuana shake on his shoulder; and (4) the car smelled of cologne when

Officer Sutton made the traffic stop. See Pyles, 755 S.W.2d at 109. Officer Sutton

testified at the hearing that he believed that the driver and Malone may have been

attempting to destroy evidence, due to the marijuana shake and cologne smell, and

the trial court found that Officer Sutton was a credible witness. See Alford, 358

S.W.3d at 652. In light of the totality of the circumstances, we hold that Officer

Sutton had probable cause to arrest Malone. See Amador, 275 S.W.3d at 878;

Parker, 206 S.W.3d at 596; Estrada, 154 S.W.3d at 606, 609.

      Malone further contends that Officer Sutton did not have probable cause to

search him. We have determined that the record supports the trial court’s finding

that Malone’s self-incriminating statement was voluntary and not a product of a

custodial interrogation. Because Malone voluntarily stated that he had a sweet in



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his pocket, Officer Sutton had probable cause to search Malone. See Wiede, 214

S.W.3d at 24; Nuttall, 87 S.W.3d at 223; Sandoval, 860 S.W.2d at 259–60. We

hold that the marijuana found on his person was not obtained in violation of the

United States or Texas Constitutions. See TEX. CODE CRIM. PROC. ANN. art.

38.23(a).

                                   Conclusion

      We hold that the trial court acted within its discretion in denying Malone’s

motion to suppress his statement to Officer Sutton and the marijuana found on his

person. We therefore affirm the judgment of the trial court. The motion for

rehearing is denied.




                                               Jane Bland
                                               Justice

Panel consists of Chief Justice Radack and Justices Bland and Huddle.

Do not publish. See TEX. R. APP. P. 47.2(b).




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