                         COURT OF APPEALS
                          SECOND DISTRICT OF TEXAS
                               FORT WORTH

                              NO. 02-11-00260-CR


THE STATE OF TEXAS                                                          STATE

                                         V.

JULIUS VIRGIL HOWARD                                                    APPELLEE


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      FROM CRIMINAL DISTRICT COURT NO. 2 OF TARRANT COUNTY

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                                    OPINION

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                                 I. Introduction

      The State appeals from the trial court’s written order granting Appellee

Julius Virgil Howard’s motion to suppress two orally-recorded statements. The

State argues in its first two points that the trial court erred by granting Howard’s

motion to suppress based on Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602

(1966), because Howard was not in custody during the interviews, meaning that

Miranda warnings were not required and that the interviewing officer was
therefore permitted to ignore Howard’s purported request for counsel. The State

alternatively contends in its third and fourth points that the trial court erred by

granting the motion to suppress because Howard did not unambiguously request

counsel. We reverse and remand.

                    II. Factual and Procedural Background

      The trial court conducted an evidentiary hearing on Howard’s written

motion to suppress during which Arlington Police Detective Corinthia Campbell

and Hood County Investigator Robert Young testified. The trial court also viewed

a portion of Howard’s videotaped polygraph examination.

      Detective Campbell testified that she was assigned to investigate an

aggravated sexual assault offense for which Howard was the suspect. Detective

Campbell arranged to meet with Howard on December 14, 2009, at the Arlington

Alliance Advocacy Center, a residential location next door to the Arlington Child

Protective Services office.     No arrest warrant had been issued; Howard

voluntarily appeared at the meeting place, and he was not handcuffed or

restrained in any way. Detective Campbell videotaped her interview of Howard.1

At the end of the interview, Detective Campbell asked whether Howard would

take a polygraph examination, and Howard agreed.

      Howard then drove himself to the polygrapher’s office, and Detective

Campbell met him there.         Investigator Young, who was interning at the


      1
       The admissibility of this videotaped interview is not at issue in this appeal.


                                         2
polygrapher’s office in order to become a licensed polygrapher, conducted and

videotaped the polygraph examination.       Investigator Young testified that the

polygrapher’s office had a policy of informing interviewees of their Miranda rights

and that he thus informed Howard of his Miranda rights before beginning the

polygraph examination. It is during this videotaped polygraph examination that

Howard argues (and the trial court found) that he invoked his right to Miranda

counsel just after Investigator Young informed him of his rights. Investigator

Young testified that he believed Howard told him that he had wanted counsel

during the earlier interview but wanted to continue with the polygraph

examination and that he therefore continued with the polygraph examination.

      At the conclusion of the polygraph examination, Howard agreed to speak

further with Detective Campbell, and Detective Campbell recorded that interview

as well.2

      Howard argued to the trial court that the videotaped polygraph examination

and the second interview by Detective Campbell were taken in violation of his

Miranda rights because all questioning should have stopped when he invoked his

right to counsel during the videotaped polygraph examination. At the conclusion

of the hearing, the trial court orally granted Howard’s motion to suppress and

dictated its findings on the record.



      2
       The third interview was preserved on an audio recording but was not
videotaped.


                                        3
      Because we give the trial court’s factual determinations almost total

deference,3 we repeat them here:

            Based upon the testimony of Detective Campbell and Mr.
      Young, the Court’s going to find that the Defendant did meet with
      Detective Campbell at the Alliance for Children office, that he
      voluntarily met with her. That when he came into the office, he was
      not under arrest. He’s not charged with anything. No restraints or
      handcuffs were placed on him.

             Detective Campbell explained to him that he was allowed to
      leave at any time. Detective Campbell did not read him his Miranda
      warning, but that he was not in custody. He was not denied any
      things concerning food, water, bathroom breaks. That he did, in fact,
      talk with Detective Campbell. That at the end of their conversation,
      Detective Campbell asked him if he would like to take a polygraph
      and he stated that he would.

            Detective Campbell did, in fact, call the offices of Richard
      Wood and actually set up the appointment. She was told that the
      appointment could be taken at 11:30 that same day. That Mr.
      Howard drove himself to the offices of Wood’s polygraph and
      Detective Campbell also drove to the offices of Richard Wood.

              That once he arrived at the offices of Richard Wood, he met
      Mr. Robert Young. It’s the Court’s understanding that Mr. Young
      was a criminal investigator with the Hood County District Attorney’s
      office. And that prior to being a criminal investigator, he was also a
      Hood County sheriff’s detective or employee. He was also a
      certified police officer.

            Mr. Young interviewed Mr. Howard, and during the interview,
      he read Mr. Howard his Miranda rights.[4] . . . [H]aving been informed

      3
        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. See Amador v. State, 221 S.W.3d 666, 673 (Tex.
Crim. App. 2007); 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).
      4
       The trial court then listed Howard’s Miranda rights.


                                         4
      of his rights and understanding, [Mr. Young asked Mr. Howard if he
      would] knowingly, intelligently and voluntarily waive those rights, and
      not desiring a lawyer, voluntarily choose to proceed with the
      polygraph examination. And he was asked, do you agree with all
      this. Mr. Howard, at that time, says, if I can have a lawyer present.
      And Mr. Young told him, you have a -- you can have a lawyer
      present to advise you prior to and during any questioning. Those
      are your rights. Mr. Howard, at that time, said, that’s what I want.
      Mr. Young continued, those are your rights, do you understand all
      those. And Mr. Howard said, yeah. And then Mr. Young told him,
      okay, if you understand those rights, sign right here. In fact, Mr.
      Howard did sign the papers.

The trial court also dictated its conclusions of law5 on the record as follows:

            Now, it’s the Court’s belief that once these Miranda warnings
      were given -- which, from the testimony is the protocol of Richard
      Woods’ office in conjunction with the Arlington Police Department --
      once he read those rights and Mr. Howard said that he wanted a
      lawyer, then the interview should have stopped.

             The Court’s going to make a finding that Mr. Young, who was
      an intern at Richard Woods’ office, and whose job really was criminal
      investigator with the Hood County DA’s office crimes against
      children, as a matter of fact, that he should have known that once
      someone requests a lawyer, that all interviews stop. I don’t think
      there’s any excuse to continuing the interview when a law
      enforcement officer understands the rights of an accused and
      understands Miranda rights and, in fact, gives this person his
      Miranda rights, but then continues to go forward.

             As such, the Court’s going to grant the motion to suppress this
      interview and interviews subsequent to that by Detective Campbell
      because that interview took place after this polygraph exam was
      taken. So I think that interview would be tainted also.



      5
       Unlike the trial court’s factual findings, we review de novo the trial court’s
application-of-law-to-fact questions that do not turn on credibility and demeanor.
See Amador, 221 S.W.3d at 673; Estrada, 154 S.W.3d at 607; Johnson, 68
S.W.3d at 652–53.


                                          5
            So that’s going to be the finding of the Court and it’s going to
      be so ordered.

The trial court’s written order on Howard’s motion to suppress states in pertinent

part that “[a]fter reading the pleadings and hearing the testimony, the Court is of

the opinion that the motion should be GRANTED as the statements were a result

of a violations [sic] of Miranda v. Arizona, 86 S.Ct. 1602 (1966).” The State filed

its notice of appeal with this court the next day.

                                  III. Discussion

      The State argues in its first two points that the trial court erred by granting

Howard’s motion to suppress because Miranda warnings were not required since

Howard was never in custody and that the interviewing officer was thus free to

continue questioning Howard following his alleged request for counsel. Howard

concedes that he was not in custody during any of the videotaped interviews

involved in this case and that Miranda warnings were therefore not required.

Howard also does not contest that an officer need not scrupulously follow a

person’s request for Miranda counsel when that person is not in custody and has

been gratuitously informed of his Miranda rights.

      Because Howard was not in custody during either of the interviews at issue

in this appeal, we first address whether Investigator Young violated Howard’s

rights under Miranda by continuing with the polygraph examination after Howard




                                          6
requested counsel.6 In that regard, this case is controlled by the court of criminal

appeals’s opinion in Estrada v. State, 313 S.W.3d 274 (Tex. Crim. App. 2010),

cert. denied, 131 S. Ct. 905 (2011). In that case, the court of criminal appeals

first held that Estrada was not in custody. Id. at 294. Then, addressing Estrada’s

contention that “the police coerced his confession primarily because the police

continued to interrogate [him] after he invoked his Miranda rights to counsel and

to remain silent after the police had informed him of these rights,” id. at 295, the

court overruled the point and held as follows:

             Even if we were to assume that appellant unambiguously
      invoked his rights to counsel and to silence during the noncustodial
      interrogation setting, we do not agree that the police were required
      to honor these invocations. We adopt the following discussion from
      our unpublished decision in Davis v. State:

                   Because the appellant was not in custody, law
            enforcement officials had no obligation under Miranda to
            scrupulously honor a request to terminate questioning.
            Although Miranda warnings were given (unnecessarily), that
            fact does not change the analysis. We have recognized that
            the prosecution cannot impeach a defendant with his post-
            Miranda silence, even if Miranda warnings were given
            prematurely. This recognition was based on the idea that it is
            fundamentally unfair to make the implicit promise that silence
            will carry no penalty and then to break that promise by using
            the defendant’s silence against him at trial. The scrupulous
            honoring of rights, however, presents a different situation.
            The need to scrupulously honor a defendant’s invocation of
            Miranda rights does not arise until created by the pressures of
            custodial interrogation. Without those pressures, the police
            are free to attempt to persuade a reluctant suspect to talk, and

      6
       Because we give the trial court’s factual determinations almost total
deference, we assume for purposes of this opinion that Howard did in fact
unambiguously request counsel after Investigator Young Mirandized him.


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             the immediate termination of the interrogation after the
             invocation of rights is simply not required.

Id. at 296 (footnotes omitted) (quoting Davis v. State, No. AP-74393, 2007 WL

1704071, at *5 (Tex. Crim. App. June 13, 2007) (not designated for publication)).

In a footnote, the Estrada Court further explained its holding as follows:

             We believe that the defendant’s remedy in a noncustodial
      setting where the police continue questioning the defendant after the
      defendant has unambiguously invoked his right to silence is simply
      to get up and leave as appellant could have done in this case. We
      further note that accepting appellant’s suggestion that the police
      should have cut off questioning if appellant invoked his right to
      silence after gratuitously receiving Miranda warnings would deter
      police from informing a suspect of his rights during noncustodial
      interrogation.     We decline appellant’s invitation to put the
      interrogating officers in this case in a worse position than they would
      have been in had they provided no Miranda warnings at all.

Id. at 296 n.26 (citations omitted).

      In this case, the parties do not dispute that Howard was not in custody at

the time Investigator Young informed him of his Miranda rights. That Howard

was not in custody is further confirmed by the trial court’s above-recited factual

findings. See Stansbury v. California, 511 U.S. 318, 322–23, 114 S. Ct. 1526,

1528–29 (1994) (“In determining whether an individual was in custody, a court

must examine all of the circumstances surrounding the interrogation, but the

ultimate inquiry is simply whether there [was] a formal arrest or restraint on

freedom of movement of the degree associated with a formal arrest.” (internal

quotes omitted)); Dowthitt v. State, 931 S.W.2d 244, 254 (Tex. Crim. App. 1996)

(“A person is in ‘custody’ only if, under the circumstances, a[n objectively]



                                         8
reasonable person would believe that his freedom of movement was restrained

to the degree associated with a formal arrest.”).

      Because Howard was not in custody and was thus not subjected to

custodial interrogation, Investigator Young was not required to inform him of his

Miranda rights. See Estrada, 313 S.W.3d at 296; Gardner v. State, 306 S.W.3d

274, 294 (Tex. Crim. App. 2009), cert. denied, 131 S. Ct. 103 (2010) (“The

warnings required by Miranda and article 38.22 are intended to safeguard a

person’s privilege against self-incrimination during custodial interrogation.”

(emphasis added)).      Further, even assuming that Howard unambiguously

requested counsel after Investigator Young gratuitously informed him of his

Miranda rights, Investigator Young could have permissibly ignored Howard’s

request for counsel and proceeded with the polygraph examination.7 Estrada,

313 S.W.3d at 296. The trial court therefore erred by granting Howard’s motion

to suppress on the ground that Investigator Young should have stopped

questioning Howard upon the invocation of the right to counsel. See id.




      7
       The trial court found that Howard requested counsel, but the parties
dispute that factual determination. Howard argues that we must defer to the trial
court’s factual finding, and the State counters that deference is not required
because the alleged invocation of the right to counsel is reflected on the
videotaped statement, meaning witness credibility is not at issue. However, we
need not decide whether Howard requested counsel or whether he did so
unambiguously because Estrada instructs us that Investigator Young was
permitted to ignore an unambiguous request for counsel since Howard was not
being subjected to custodial interrogation. See 313 S.W.3d at 296.


                                         9
      Howard does not contest the foregoing, nor does he argue that Estrada is

distinguishable. Instead, Howard contends that the trial court’s order should be

affirmed on a separate theory, that theory being that his statements following his

attempt to invoke Miranda counsel were not voluntarily made. See generally

Young v. State, 283 S.W.3d 854, 873 (Tex. Crim. App. 2009) (per curiam), cert.

denied, 130 S. Ct. 1015 (2009) (“If the trial court’s ruling regarding a motion to

suppress is reasonably supported by the record and is correct under any theory

of law applicable to the case, the reviewing court must affirm.”). Specifically,

Howard argues that “the voluntariness of the statements after requesting counsel

is in issue” and that “although the trial judge didn’t specifically mention

voluntariness, it appears that [voluntariness] was the court’s actual concern.”

      A statement may be deemed “involuntary” under three different theories:

(1) failure to comply with code of criminal procedure article 38.22 (the Texas

confession statute); (2) failure to comply with the dictates of Miranda; or (3) it was

taken in violation of due process or due course of law because the statement

was not freely given due to coercion, force, or improper influence.         Wolfe v.

State, 917 S.W.2d 270, 282 (Tex. Crim. App. 1996); Moore v. State, 233 S.W.3d

32, 44 (Tex. App.—Houston [1st Dist.] 2007, no pet.); Miller v. State, 196 S.W.3d

256, 266 (Tex. App.—Fort Worth 2006, pet. ref’d) (per curiam) (mem. op.). We

addressed the Miranda ground above, and we note that article 38.22 likewise

applies only to custodial interrogations. See Tex. Code Crim. Proc. Ann. art.

38.22 (West 2005); Gardner, 306 S.W.3d at 294. Thus, for us to affirm the trial


                                         10
court’s ruling on the ground that Howard’s statements were involuntarily made,

the record must reasonably support the conclusion that Howard’s statements

were not freely given due to coercion, force, or improper influence. See Wolfe,

917 S.W.2d at 282 (“In contrast [to Miranda and article 38.22], due process

involuntariness claims do not necessarily require that the interrogation be

custodial.   But in the absence of custody, due process is violated only by

confessions that are not in fact freely given rather than by mere noncompliance

with prophylactic rules.” (citation omitted)).

      To determine the voluntariness of Howard’s statements, we examine the

totality of the surrounding circumstances. Delao v. State, 235 S.W.3d 235, 239

(Tex. Crim. App. 2007), cert. denied, 128 S. Ct. 1128 (2008); Creager v. State,

952 S.W.2d 852, 855 (Tex. Crim. App. 1997). A confession is involuntary if

circumstances show that the defendant’s will was “overborne” by police coercion.

Creager, 952 S.W.2d at 856. In other words, a statement is involuntary if the

record reflects “official, coercive conduct of such a nature” that any statement

obtained thereby is “unlikely to have been the product of an essentially free and

unconstrained choice by its maker.” Alvarado v. State, 912 S.W.2d 199, 211

(Tex. Crim. App. 1995).

      Given these considerations, we cannot say that the record reasonably

supports a determination that Howard’s statements were made involuntarily. The

trial court’s findings reflect that Howard voluntarily met with Detective Campbell

at the Alliance for Children office; was not under arrest, charged with any crime,


                                          11
handcuffed, or otherwise restrained; was informed that he was free to leave at

any time; was not denied necessities such as food, water, or restroom breaks;

voluntarily agreed to take the polygraph examination and drove himself to the

polygraph office; met with Investigator Young, who informed him of his Miranda

rights; asked questions of Investigator Young concerning his Miranda rights;

signed the waiver form; and answered Investigator Young’s questions. The trial

court did find that Howard invoked his right to counsel, but nothing within the trial

court’s findings or the evidentiary record suggests that Howard was subjected to

the type of coercive police activity that could render his statements involuntary.

See Estrada, 313 S.W.3d at 297 (holding interrogation techniques employed,

which were much more intense than those in this case, were “not the type of

brutal ‘third-degree’ techniques” that would render the confession involuntary

under the Due Process Clause). Thus, the trial court’s ruling cannot be affirmed

on this involuntariness ground, and we accordingly sustain the State’s first and

second points. We need not decide the State’s third or fourth points. See Tex.

R. App. P. 47.1.




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                                 IV. Conclusion

      Having sustained the State’s first and second points and having not

reached the State’s third or fourth points, we reverse the trial court’s order and

remand this case for further proceedings consistent with this opinion.




                                                   ANNE GARDNER
                                                   JUSTICE

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

PUBLISH

DELIVERED: August 16, 2012




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