Affirmed and Memorandum Opinion filed May 30, 2013.




                                       In The

                     Fourteenth Court of Appeals

                               NO. 14-11-01032-CR
                               NO. 14-11-01033-CR

                             DEON RUSH, Appellant
                                         V.

                       THE STATE OF TEXAS, Appellee

                    On Appeal from the 506th District Court
                             Grimes County, Texas
                    Trial Court Cause Nos. 16,022 & 16,024C

                 MEMORANDUM                       OPINION


      After the trial court denied appellant Deon Rush’s motion to suppress, he
pleaded guilty to two counts of burglary of a habitation. In a single issue, appellant
asserts that the trial court erred in denying his motion to suppress because officers
secured appellant’s agreement to custodial interrogation before advising him of his
constitutional rights. We affirm.
                                      BACKGROUND

      Appellant was arrested on October 10, 2006, after a burglary in which
appellant shot the homeowner who interrupted the offense. At the time of his
arrest, appellant was nineteen years old. He was taken to the Grimes County
Sheriff’s Department and placed in an interview room.         An investigator with
Grimes County, Travis Higginbothem, asked appellant his name and asked if
appellant wanted anything to drink. Appellant stated he wanted to talk to his
mother; Higginbothem told him he could speak to his mother, but again asked what
he wanted to drink. Higginbothem left the interview room to get a soda for
appellant. Appellant sat alone in the interview room for approximately 40 minutes.
During this time, he rested his head on his chest and appeared to be sleeping.

      Officer Johnny Martinez of the Grimes County Sheriff’s Department came
into the room with Higginbothem and Texas Ranger Bryant Wells, who
participated in the arrest. Martinez asked appellant to wake up and asked what
happened to appellant’s head. Appellant responded that he had been “pistol-
whipped.” Martinez explained that he was going to photograph appellant’s injuries
for documentation purposes, and swab appellant’s hands for gunshot residue.
Appellant asked to speak with his mother.       Wells assured appellant they had
contacted his mother and she was aware that he had been arrested. Martinez asked
where appellant’s mother was located, and appellant responded she was in Bryan.
Martinez asked if appellant’s mother had transportation, and appellant stated she
did not. Martinez explained that appellant could speak with his mother on the
telephone after appellant finished talking with Martinez. Martinez asked, “Is that
fine with you?” Appellant nodded his assent.

      After Higginbothem completed the photographs, swab of appellant’s hands,
and a buccal swab for DNA purposes, Martinez sat down in front of appellant and

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said, “Deon, if you don’t mind, I’d like to sit down and talk to you, okay; I’m
going to ask some questions and go over some things with you, okay?” Martinez
explained that he wanted to ask appellant questions about what had happened, and
asked appellant to tell the truth. Appellant, by nodding his head, agreed to speak
with Martinez. Martinez then explained that appellant was in custody, and he
would read appellant his rights. Martinez requested that appellant tell him if he did
not understand any of his rights. Martinez read appellant his rights, asking after
each one whether appellant understood. Appellant answered he understood his
rights, and signed a written waiver.

      Appellant then admitted breaking into a house with intent to steal. The
residents of the house interrupted him, and appellant shot one of the residents.
When the police began chasing him, appellant stole one of the vehicles at the house
and drove to an apartment complex. He went into another individual’s home
where he was eventually apprehended. Appellant gave a full confession explaining
how he entered the house, was interrupted during the burglary, took the keys to the
complainant’s vehicle, and fled the first scene. Appellant physically demonstrated
hiding behind the door of the house with a weapon. Appellant also told the
officers where he disposed of the weapon.

      Appellant was subsequently charged with attempted capital murder, burglary
of a habitation, evading arrest with a vehicle, and unauthorized use of a motor
vehicle.   After jury selection, appellant moved to suppress his oral statement
because the investigating officers improperly obtained an agreement from
appellant to give a statement prior to advising appellant of his rights. In denying
appellant’s motion to suppress, the trial court found that appellant was properly
advised of his rights between the time that the “purported agreement to make a
statement was made and the actual taking of the statement.”

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      At the end of the first day of testimony, appellant and the State reached an
agreement for a plea bargain. Appellant agreed to plead guilty to two counts of
burglary of a habitation in exchange for the State’s recommendation of an
eighteen-year sentence. The trial court certified appellant’s right to appeal the
denial of his pretrial motions. Appellant’s original appeals were dismissed as
untimely. Rush v. State, No. 14-09-00434-CR; 14-09-00453-CR; 14-09-00460-
CR; 14-09-00462-CR (Tex. App.—Houston [14th Dist.] July, 9, 2009). The Court
of Criminal Appeals granted appellant habeas corpus relief in the form of an out-
of-time appeal.

      In his sole issue on appeal, appellant argues the trial court erred in denying
appellant’s motion to suppress because officers secured appellant’s agreement to
custodial interrogation before advising him of his constitutional rights. Appellant
filed a pro se motion to suppress prior to trial alleging his confession was
involuntary because he was intoxicated. In his reply brief filed in this court,
appellant emphasizes that his only complaint on appeal is that his confession was
obtained after officers improperly obtained an agreement to give a statement.
Therefore, we will confine our review appellant’s issue raised on appeal.

                                         ANALYSIS

      A trial court’s ruling on a motion to suppress is reviewed for an abuse of
discretion. State v. Dixon, 206 S.W.3d 587, 590 (Tex. Crim. App. 2006). Under
this standard of review, we will uphold the trial court’s ruling if it is reasonably
supported by the record and is correct under any applicable legal theory. Id. The
trial court is the sole trier of fact and judge of the credibility of the witnesses and
the weight to be given their testimony. Guzman v. State, 955 S.W.2d 85, 89 (Tex.
Crim. App. 1997).       We give the trial court almost complete deference in
determining historical facts, while reviewing de novo its application of the law to

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those facts. State v. Ross, 32 S.W.3d 853, 856 (Tex. Crim. App. 2000).

      Appellant argues that the procedure used by the investigators in this case
was “simply a variation on the two-stage interview process” rejected in Missouri v.
Seibert, 542 U.S. 600, 602 (2003) and Jones v. State, 119 S.W.3d 766, 775–76
(Tex. Crim. App. 2003). A “two-stage” interview process, otherwise known as a
“question first, warn later” interrogation technique, consists of officers
interrogating a suspect without providing Miranda1 warnings and obtaining a
confession; then, after inculpatory statements are made, officers provide Miranda
warnings and obtain a waiver of the warnings. See Seibert, 542 U.S. at 604–05.
Officers then have the suspect repeat the inculpatory statements in an attempt to
cure the absence of Miranda warnings. See id. at 605.

      Prior to its opinion in Seibert, the Supreme Court determined that post-
warning confessions made after inadvertent, minimal Miranda violations are
admissible. Oregon v. Elstad, 470 U.S. 298, 318 (1985). The Court found that “a
suspect who has once responded to unwarned yet uncoercive questioning is not
thereby disabled from waiving his rights and confessing after he has been given the
requisite Miranda warnings.” Id. In upholding the admission of Elstad’s post-
Miranda statements, the Court concluded that there were “none of the earmarks of
coercion” in that particular factual situation and that the officer’s initial failure to
warn was merely an “oversight.” Id. at 316.

      In his concurring opinion in Seibert, Justice Kennedy determined that when
a two-step interrogation technique is used in a deliberate, calculated way to
undermine Miranda warnings, absent “curative measures,” the post-warning
statements must be excluded. Seibert, 542 U.S. at 622 (Kennedy, J., concurring).
Unless a deliberate two-step strategy is employed, Elstad applies. Id. In Carter v.
      1
          Miranda v. Arizona, 384 U.S. 436, 478–79 (1966).

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State, 309 S.W.3d 31, 38 (Tex. Crim. App. 2010), the Court of Criminal Appeals
expressly adopted Justice Kennedy’s concurrence in Seibert requiring appellant to
show that the interrogation is used in a deliberate, calculated way to undermine the
Miranda warnings. The court also adopted “a highly deferential review—similar
to our Guzman standard—of the question of an officer’s subjective ‘deliberateness’
in the ‘question first, warn later’ context.” Carter, 309 S.W.3d at 39.

      Consequently, the question in this case is whether the evidence shows that
Officer Martinez deliberately employed a two-step “question first, warn later”
interrogation technique to circumvent appellant’s Miranda rights. See id. at 38.

      Among the factors the Supreme Court considered in determining that the
“midstream” warnings were not sufficient to effectively comply with Miranda
were the completeness and detail of the first, unwarned statement, the overlapping
content of the two statements, the timing and setting of the two statements, the
continuity of police personnel, and the degree to which the interrogator treated the
second round of questioning as a continuation of the first. Seibert, 542 U.S. at 615.

      In this case, the evidence shows that, prior to the Miranda warnings being
given, the dialogue between Martinez and appellant was conversational. Martinez
asked appellant whether appellant was willing to give a statement about what
happened. He agreed to permit appellant to speak with his mother on the telephone
after they were finished. Appellant answered officers’ questions about his injuries
and cooperated with the gathering of physical evidence. There was no evidence
that Martinez exhibited hostile, aggressive, or threatening behavior toward
appellant or that he intended to create a coercive environment.

      Immediately after appellant agreed to make a statement, he was advised of
his rights, asked if he understood them, and waived his Miranda rights. In this
case, there is no evidence that Martinez deliberately employed a two-step
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interrogation process in questioning appellant. Appellant did not make a statement
prior to being advised of his rights, but agreed to speak with the officers.

      Once a determination has been made that the pre-warning questioning was
not part of a deliberate plan to undermine a suspect’s Miranda protections, it is still
necessary to determine if appellant’s post-warning statements were voluntarily
made. Carter, 309 S.W.3d at 41 (citing United States v. Stewart, 536 F.3d 714,
723 (7th Cir.2008) (when the interrogation process used was not a deliberate end
run around Miranda, a trial court should determine “whether the initial unwarned
confession would flunk the voluntariness standard of Elstad such that the taint
would carry over to the second warned confession.”). The factfinder must examine
all of the circumstances and the course of police conduct in evaluating the
voluntariness of those post-Miranda statements. Carter, 309 S.W.3d at 41.

      In this case, the trial court found “that the right warnings were an
intervening event in the interview process, intervening between the time that the
purported agreement to make a statement was made and the actual taking of the
statement.”    We find that the record supports this finding.           A subsequent
administration of Miranda warnings to a suspect who has given a voluntary but
unwarned statement ordinarily should suffice to remove the conditions that
precluded admission of the earlier statement. Carter, 309 S.W.3d at 42. Martinez
administered appropriate Miranda warnings prior to questioning appellant. The
facts of this case differ in that appellant did not give a confession prior to being
advised of his rights, but merely agreed to give a statement. The fact that Martinez
solicited an agreement to speak with appellant prior to administering the warnings
does not “flunk the voluntariness standard of Elstad” such that the confession was
tainted. Therefore, we agree with the trial court that appellant’s post-warning
statement was admissible. We overrule appellant’s sole issue on appeal.

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                                      CONCLUSION

      Having concluded that the trial court did not abuse its discretion in denying
appellant’s motion to suppress, we affirm the trial court’s judgment.




                                       /s/       Tracy Christopher
                                                 Justice



Panel consists of Justices Christopher, Jamison, and McCally.
Do Not Publish — TEX. R. APP. P. 47.2(b).




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