                                      In The

                               Court of Appeals
                    Ninth District of Texas at Beaumont
                             _________________
                              NO. 09-12-00559-CR
                             _________________

                   KENNETH LEE MARTIN JR., Appellant

                                        V.

                       THE STATE OF TEXAS, Appellee

________________________________________________________________________

                    On Appeal from the 260th District Court
                           Orange County, Texas
                         Trial Cause No. D-110,726-R
________________________________________________________________________

                          MEMORANDUM OPINION

      This is an appeal by Kenneth Lee Martin Jr. of the trial court’s ruling on a

motion to suppress an oral statement made by appellant. Martin contends that the

admission of his oral statement was improper because it was the product of a

custodial interrogation and was not electronically recorded in accordance with the

provisions of the Texas Code of Criminal Procedure. After the trial court denied

his motion to suppress, a jury convicted Martin of felony possession of a controlled

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substance and assessed punishment at two years confinement in state jail and a

$10,000 fine. We affirm the judgment of the trial court.

            I.    FACTUAL AND PROCEDURAL BACKGROUND

      Leonard Roff, an officer with the Pinehurst Police Department, was on

patrol in Orange County when he observed a vehicle, with its high beams on,

approach him from behind. Martin was riding in the front passenger seat of the

vehicle. Martin’s cousin, Brandon Lee Martin, was driving. The vehicle was

owned by Brandon’s girlfriend, who was not in the vehicle at the time. Officer

Roff conducted a traffic stop. West Orange Police Officer Chance Reed arrived on

the scene and assisted Roff with the traffic stop. At some point during the stop,

Constable Rob Strause also arrived at the scene.

      After stopping the vehicle, Roff obtained “verbal consent” from the driver to

search the vehicle. Roff found a small plastic baggy containing methamphetamine

between some clothing in the trunk of the vehicle. Officer Roff testified he

considered Brandon and Martin as being detained at that point in time and would

not have allowed them to leave. Roff asked both Brandon and Martin who owned

the drugs. Roff never advised them of any Miranda warnings. See Miranda v.

Arizona, 384 U.S. 436 (1966). Roff testified he told Brandon and Martin that if

they both denied ownership of the drugs, he would charge them both with

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possession. Martin then made the statement that Brandon had a baby on the way

and did not need to go to jail. Martin stated that he would “take the hit for it.” Roff

then handcuffed Brandon and Martin and placed them both under arrest.

       At some point thereafter, Constable Strause read Martin his Miranda rights.

Id. After being read his rights, Martin again claimed ownership of the contraband.

Because of a malfunction of the audio and video equipment on Roff’s patrol car,

the traffic stop and oral statements were not recorded.

       Prior to trial, Martin filed a motion to suppress the oral statements he made

during the traffic stop. In the motion, Martin alleged that admission of his oral

statements would violate articles 38.22 and 38.23 of the Texas Code of Criminal

Procedure. See Tex. Code Crim. Proc. Ann. art. 38.22 (West Supp. 2013), art.

38.23 (West 2005). At the hearing on the motion to suppress, Martin denied ever

claiming ownership or possession of the alleged contraband. In its oral findings of

fact, the trial court found in pertinent part:

       Officer Roff conducted a traffic stop and was given verbal consent to
       search the vehicle. He searched the vehicle, and in the trunk he found
       some methamphetamine between some clothing. He inquired as to
       the . . . driver and the passenger as “Who does that belong to?” And
       neither party admitted ownership, did not belong to them. The officer
       then advised them he was going to place both of them under arrest for
       possession. The defendant at that time stepped forward and said --
       admitted the drugs were his and that he -- the driver had a family and
       did not need to go to jail. The officer proceeded to arrest both of
       them. The audio and video equipment were not functioning. So,
                                           3
      there was no recording of the arrest. Constable Rob Strause arrived at
      the scene and read the [Miranda] warnings to the defendant. The
      defendant then admitted that the drugs, again, were his. And the
      defendant was placed under arrest and charged with the offense.

The Court then denied the motion to suppress.

      Constable Strause did not testify at trial. Martin’s confession came into

evidence only through the trial testimony of Officers Roff and Reed. A jury

convicted Martin of the alleged offense; he was sentenced to two years

confinement in jail and assessed a $10,000 fine. The trial court entered a judgment

of conviction in accordance with the jury’s verdict and this appeal followed. On

appeal, Martin argues in one issue that the trial court erred in denying his motion to

suppress the “unrecorded oral statements made by appellant while [he] was

detained.”

                         II.    STANDARD OF REVIEW

      We review the trial court’s ruling on a motion to suppress under a bifurcated

standard. Carmouche v. State, 10 S.W.3d 323, 327 (Tex. Crim. App. 2000). We

defer to the trial court’s determination of historical facts supported by the record,

especially when they are based on credibility assessments, and mixed questions of

law and fact that turn on credibility assessments. State v. Iduarte, 268 S.W.3d 544,

548-49 (Tex. Crim. App. 2008); Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim.

App. 1997) (en banc). We review legal questions and mixed questions of law and
                                      4
fact that do not turn on credibility assessments under a de novo standard. Leza v.

State, 351 S.W.3d 344, 349 (Tex. Crim. App. 2011); Carmouche, 10 S.W.3d at

327.

       In Alford v. State, the Texas Court of Criminal Appeals explained that “‘[i]f

credibility and demeanor are not necessary to the resolution of an issue, whether a

set of historical facts constitutes custodial interrogation . . . is subject to de novo

review because that is an issue of law[.]’” 358 S.W.3d 647, 653 (Tex. Crim. App.

2012); see also State v. Saenz, 411 S.W.3d 488, 494 (Tex. Crim. App. 2013). The

fact that credibility and demeanor “are important factors” in the trial court’s

assessment does not necessarily mean that the raised issue “‘turns’” on an

evaluation of credibility and demeanor. Saenz, 411 S.W.3d at 494. Additionally,

“[t]he ultimate legal determination of whether an individual was in custody

requires an appellate court to take the facts, as assessed for weight and credibility

by the trial court, and then to make a legal determination as to whether those facts

amount to custody under the law.” Id. We take the trial court’s fact findings that

are supported by the record and determine whether those facts amount to custody

under the applicable law. See id.




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                                III.     ANALYSIS

        Martin argues his oral statements were inadmissible against him at trial

because they were not electronically recorded pursuant to article 38.22. Under

Texas law, a defendant’s oral statement, made as the result of a custodial

interrogation, is not admissible against him in a criminal proceeding unless, among

other requirements, the statement is electronically recorded. Tex. Code Crim. Proc.

Ann. art. 38.22, § 3(a)(1). The State argues that Officer Roff’s detention of Martin

was non-custodial before the time that Officer Roff placed Martin under arrest and,

thus, the statements are not subject to the requirements of article 38.22. The State

further contends that Martin’s confession was not the result of a custodial

interrogation as the statement was not made in response to a question by Officer

Roff.

                                       A. Custody

        A person is “in custody” if, after considering all of the objective

circumstances, a reasonable person would believe that his or her freedom of

movement is restrained to the degree associated with a formal arrest. Dowthitt v.

State, 931 S.W.2d 244, 254-55 (Tex. Crim. App. 1996); see also Estrada v. State,

313 S.W.3d 274, 294 (Tex. Crim. App. 2010). In making this determination, we

ascertain first, “whether, in light of ‘the objective circumstances of the

                                           6
interrogation,’ a ‘reasonable person [would] have felt he or she was not at liberty to

terminate the interrogation and leave.’” Howes v. Fields, 132 S. Ct. 1181, 1189

(2012) (citations omitted). If the answer is “yes,” we then consider “whether the

relevant environment presents the same inherently coercive pressures as the type of

station house questioning at issue in Miranda.” Id. at 1190. In Dowthitt, the Texas

Court of Criminal Appeals outlined four general situations that may constitute

custody:

      (1) when the suspect is physically deprived of his freedom of action in
      any significant way,
      (2) when a law enforcement officer tells the suspect that 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) when there is probable cause to arrest and law enforcement
      officers do not tell the suspect that he is free to leave.

Dowthitt, 931 S.W.2d at 255. In the first three of these categories, a detainee’s

freedom of movement must be restrained “to the degree associated with an

arrest[.]” Id.; State v. Ortiz, 382 S.W.3d 367, 376 (Tex. Crim. App. 2012). With

regard to the fourth category, an officer’s belief that probable cause exists must be

“manifested to the suspect.” Dowthitt, 931 S.W.2d at 255; Ortiz, 382 S.W.3d at

376-77.



                                          7
      To support his contention that his statements were made in response to a

custodial interrogation, Martin relies on Officer Roff’s testimony that Martin and

Brandon were being detained at the time that he questioned them, as well as Roff’s

testimony that he would not have allowed them to leave after he found the drugs.

An officer’s subjective view regarding the nature of an interrogation, or his belief

concerning the potential culpability of the individual being questioned, may be one

of many factors that bear upon the assessment of whether that individual was in

custody, but “‘only if the officer’s views or beliefs were somehow manifested to

the individual under interrogation and would have affected how a reasonable

person in that position would perceive his or her freedom to leave.’” Estrada, 313

S.W.3d at 294 (quoting Stansbury v. California, 511 U.S. 318, 325 (1994)); see

also State v. Stevenson, 958 S.W.2d 824, 829 n.7 (Tex. Crim. App. 1997).

      Texas law is well settled that “a person held for investigative detention is not

in ‘custody.’” Ramirez v. State, 105 S.W.3d 730, 738 (Tex. App.—Austin 2003,

no pet.) (citing Dowthitt, 931 S.W.2d at 255). An investigative detention occurs

when an officer detains someone who is reasonably suspected of engaging in

criminal activity to determine his identity or to maintain the status quo while more

information is gathered. Id. at 739 (citing Terry v. Ohio, 392 U.S. 1, 20-21

(1968)). Although an interrogation may begin as non-custodial, police conduct

                                          8
during the encounter may transform a consensual exchange into a custodial

interrogation. Dowthitt, 931 S.W.2d at 255.

      The record establishes that Martin and Brandon were detained while Officer

Roff searched the car. They were not handcuffed. After Officer Roff found

methamphetamine in the trunk of the car, he questioned both men as to whom the

contraband belonged. Probable cause to arrest both men existed, and Officer Roff

did not tell Martin he was free to leave. See id. After neither man admitted to

ownership of the contraband, Officer Roff made a statement to them that he was

charging and arresting them both. The record establishes there were ultimately

three officers on the scene from three different jurisdictions.1 See Ortiz, 382

S.W.3d at 374 (noting that “[a]n ordinary traffic stop usually involves a single

police car and one or two officers.”). Under the circumstances, we conclude that

Officer Roff’s statement would lead a reasonable person in Martin’s position to

conclude his freedom of movement was restricted to the degree associated with an

arrest. See id. at 375; see also Dowthitt, 931 S.W.2d at 255. On this record, we

conclude that Martin was in custody when he made the statement. See Ortiz, 382

S.W.3d at 375; see also Dowthitt, 931 S.W.2d at 254-55. The question then



      1
        It is unclear from the record at what point during the stop Constable
Strause arrived on the scene.
                                      9
becomes whether the statement was made as the result of Roff’s interrogation or

was a voluntary admission as asserted by the State.

                                   B. Interrogation

      All parties agree that Martin was not advised of his Miranda rights

immediately following the officer’s statement that they were both being arrested.

When considering whether a temporary detention has evolved into a custodial

interrogation, we consider “the compulsive aspect of custodial interrogation[.]”

Stansbury, 511 U.S. at 323. Interrogation has been defined as express questioning

or any words or actions by police that “the police should know are reasonably

likely to elicit an incriminating response[.]” Rhode Island v. Innis, 446 U.S. 291,

301-02 (1980). According to the State, Martin’s statement to Officer Roff was a

spontaneous, “res gestae” admission.        The record supports a conclusion that

Martin’s statement was not made in direct response to Roff’s initial question about

ownership of the contraband. The question then becomes whether Martin’s claim

of ownership was made in direct response to Roff’s follow-up statement that,

because neither admitted to ownership of the contraband, both men would be

arrested. The likelihood of eliciting a response focuses on the perception of the

suspect, not the intent of the police. Id. at 301.



                                           10
      Martin brought the motion to suppress and took the stand to support his

claims. He testified at the suppression hearing that Officer Roff did not ask him if

he had any knowledge of the contraband recovered from the vehicle and, further,

that he had no discussions with the police officers regarding possession or

ownership of any alleged contraband. In fact, Martin denied that he ever told the

police officers that the drugs were his. Martin offered no testimony in support of

his motion to suppress that he made a claim of ownership of the contraband only in

response to a statement or question posed by law enforcement. On cross-

examination by the State, Martin was asked if he ever made the statement that the

drugs were his, he replied, “I was never asked to do that.” The prosecutor then

stated: “Then you just answered my question. The cops never asked you?” Martin

replied, “No, sir.” Officer Roff testified that after his initial inquiry as to whom the

drugs belonged, he never asked Martin any further questions. Roff testified that

when he told both men that he was charging them both with possession of

contraband, Martin volunteered the statement that Brandon did not need to go to

jail because he had a baby on the way and the drugs belonged to Martin.

      Officer Reed testified that Roff questioned both men about ownership of the

methamphetamine, and “[a]t first, originally neither subject took ownership of it.

Then as it progressed, Mr. Kenneth Martin stated to Brandon something along the

                                          11
lines of ‘You’ve got a child along the way,’ basically. ‘I’ll take the hit for it.’” On

this record, the trial court could have reasonably concluded that Martin’s statement

was a spontaneous or voluntary admission, not the result of police interrogation

and was not subject to the provisions of article 38.22. See Tex. Code Crim. Proc.

Ann. art. 38.22; see also Jones v. State, 795 S.W.2d 171, 176 (Tex. Crim. App.

1990) (citing Innis, 446 U.S. at 300); Ruth v. State, 167 S.W.3d 560, 570 (Tex.

App.—Houston [14th Dist.] 2005, pet. ref’d). We overrule this issue and affirm the

judgment of the trial court.

      AFFIRMED



                                                 __________________________
                                                     CHARLES KREGER
                                                          Justice

Submitted on July 1, 2013
Opinion Delivered January 29, 2014
Do not publish

Before McKeithen, C.J., Kreger and Horton, JJ.




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