Affirmed and Memorandum Opinion filed April 11, 2013.




                                           In The

                        Fourteenth Court of Appeals

                                   NO. 14-11-00676-CR

                             THERON OWENS, Appellant
                                              V.
                          THE STATE OF TEXAS, Appellee

                       On Appeal from the 178th District Court
                               Harris County, Texas
                           Trial Court Cause No. 1167769

                     MEMORANDUM OPINION

      Appellant Theron Owens challenges his conviction for capital murder on the
grounds that the trial court erred (1) in failing to suppress his written and oral
statements allegedly taken in violation of his Miranda1 rights and (2) denying his




      1
          Miranda v. Arizona, 384 U.S. 436 (1966).
motion for mistrial on the basis of the allegedly false testimony of one of the
investigating officers.2 We affirm.

                                      BACKGROUND3

       Appellant was convicted of capital murder. Prior to his trial, the trial court
heard his motion to suppress several statements made to police. These statements
included two voluntary statements made on May 17, 2008, in which he denied his
involvement in the offense, and a second voluntary statement made on May 20,
2008, in which he confessed to the murder of his mother, Joyce Owens, and
grandmother, Alberta Walker.

       Late in the evening on May 16, 2008, appellant ―discovered‖ the bodies of
his sixty-three-year old mother and eighty-four-year old grandmother in the home
he shared with them in Harris County, Texas. After Harris County Sheriff‘s Office
(―HCSO‖) deputies arrived, he and another witness were placed in handcuffs in the
back of separate HCSO patrol vehicles. HCSO Sergeant Roger Wedgeworth was
assigned to lead the investigation into the murders of appellant‘s mother and
grandmother. Wedgeworth arrived at the scene at about 1:30 a.m. on May 17. At
the scene, he spoke with members of the HCSO crime scene unit, who informed
him that it appeared that the scene had been staged to look like a burglary.




       2
          Because the trial court failed to file findings of fact and conclusions of law, this appeal
was abated and remanded to the trial court for such determinations. Our record has been
supplemented with these findings and conclusions, and this appeal has been reinstated.
Appellant‘s fourth issue concerning this failure by the trial court has been rendered moot by the
filing of these findings and conclusions.
       3
         Appellant has not challenged the sufficiency of the evidence. Thus, we discuss the facts
briefly here and as necessary throughout the opinion to address appellant‘s issues.

                                                 2
      Wedgeworth asked HCSO deputies to retain appellant‘s clothing because
appellant had been in contact with the decedents. When appellant removed his
outer clothing, deputies discovered that he was wearing a pair of grey sweatpants
and a white tank shirt underneath.

      Because appellant was the last person to see the decedents alive and the first
person to ―discover‖ their bodies, Wedgeworth had a deputy transport appellant to
the HCSO homicide division offices located in downtown Houston. Wedgeworth
intended to take appellant‘s statement as a witness. Wedgeworth did not provide
appellant with Miranda warnings because appellant was not in custody and was
providing a witness statement.        Wedgeworth interviewed appellant in an
administrative office in the early hours of May 17, 2008; appellant signed a
voluntary written statement, describing his version of the events of the day.

      After taking appellant‘s written statement, Wedgeworth asked appellant to
take a polygraph examination, and appellant consented. Appellant‘s polygraph
examination indicated that he was being deceptive. He was escorted into an
interview room for further questioning. Wedgeworth contacted HCSO Sergeant
Craig Clopton to assist him in interviewing appellant.

      Wedgeworth and Clopton began a videotaped witness interview of appellant
at about 8:30 a.m. Both were wearing plainclothes, and their firearms were not
visible. Appellant was not provided Miranda warnings prior to or during this
interview. Appellant was not handcuffed. Throughout this interview, which lasted
several hours, appellant made no admissions of guilt or any incriminating
statements. He never asked for any food or drink or to leave. At the conclusion of
the interview, Clopton and another deputy drove appellant home.

      Appellant contacted Quanell X Farrakhan, a community activist and leader
of the New Black Panthers and New Black Muslim movement. Initially, appellant
                                          3
told Farrakhan that he was being harassed by police for a crime he had not
committed.     Farrakhan contacted Clopton, whom he knew from a prior
investigation. Clopton informed Farrakhan that appellant was the HCSO‘s only
suspect in connection with the deaths of appellant‘s mother and grandmother.
Farrakhan met with appellant and offered to help him if he were being harassed by
the police and was innocent of the crime. Farrakhan also told appellant that he
could help him ―in other ways‖ if appellant had anything else he wanted to say.
Appellant told Farrakhan that the HCSO deputies had not abused him in any way
when they interviewed him.

      The next morning, appellant contacted Farrakhan and said that although he
did not need Farrakhan‘s help ―fighting‖ the police, he did want Farrakhan‘s help
in another way. Appellant met with Farrakhan and confessed to murdering his
mother and grandmother by stabbing them. Farrakhan told appellant not to give
him any more details about the crime, but assured appellant that he would do what
he could to ensure appellant‘s safety when appellant confessed to the police.
Farrakhan contacted the HCSO to advise them that he was bringing appellant in to
confess. He then escorted appellant to the HCSO homicide division.

      Clopton and Wedgeworth met Farrakhan and appellant at the HCSO‘s
homicide division offices. Investigators separated Farrakhan and appellant to take
their statements. In a written statement, Farrakhan described the conversations he
had with appellant. Clopton and Wedgeworth took appellant to an interview room
to take a videotaped statement. Wedgeworth read appellant his Miranda warnings,
and appellant indicated that he understood each warning. Wedgeworth then stated,
―Now, at this point you have voluntarily [come] to our office and I am going to ask
you, Do you waive the rights that I just read to you and agree to talk to us about
what has taken place?‖ Appellant responded, ―I would like to have an attorney

                                         4
present while I talk to you, but I will be fully cooperative with you and tell you
everything, tell you the truth.‖ Wedgeworth responded, ―Okay.‖ Appellant almost
simultaneously volunteered, ―I committed the crime. I did commit the crime.‖
Wedgeworth left the room, indicating he was going to inquire about a lawyer.

      Clopton remained in the room with appellant. Appellant volunteered several
statements to Clopton, including that Farrakhan was a ―good man.‖ Wedgeworth
reentered the interview room, and the following colloquy took place:

      WEDGEWORTH: I just talked to Marlin Tatum [phonetic] and I can
      get you -- do you have an attorney?
      APPELLANT: No, sir.
      WEDGEWORTH: I can get you a phone book.
      APPELLANT: I need a court-appointed attorney. I can‘t afford an
      attorney, sir.
      WEDGEWORTH: Okay. Well, he is saying up until the time you are
      charged, we can‘t just go out on the street and get you an attorney --
      APPELLANT: Yes, sir.
      WEDGEWORTH: -- you know? So, you know, at this point, I don‘t
      know what to tell you. If you don‘t want to talk at this point, you
      know, without having a lawyer right here with you, you know, then --
      APPELLANT: Can I speak with Quanell?
      WEDGEWORTH: Okay.
      APPELLANT: Thank you. Yes, sir.

Shortly after this exchange, Wedgeworth left the room again. Appellant reengaged
in conversation with Clopton, with no prompting or questioning from Clopton.
Appellant began crying and was visibly upset. He stated,

            I know only God can charge me. You know, people tell me,
      Don‘t cry about this. You weren‘t crying when you were killing your
      parents. Think about how they cried, how they suffered. Why should
      you suffer now and you should suffer more than them, you know?

                                        5
            In reality, I know I should have. I know I should have, because
      what I did was very wrong. It was wrong. . . .
            I would like an attorney present to push me, to tell, you know
      what I‘m saying. I don‘t know all about that, man. And I know I‘m
      faced with capital murder.
Clopton responded that, because appellant had asked to speak with an attorney,
they had to ―step back until that happens‖ unless they had appellant‘s approval to
speak with him. Appellant made several other voluntary statements to Clopton
acknowledging his responsibility for the death of his mother and grandmother.
When appellant asked Clopton if he was doing the right thing by not talking to
them without a lawyer, Clopton responded that he could not give him legal advice.

      Wedgeworth reentered the interview room, again offering to get an
attorney‘s number for appellant. Appellant responded that he could not afford an
attorney, so it would do him no good to contact one. Appellant added,

      That‘s why I asked if I could speak with Quanell and he could advise
      me or either tell me what he think would be the best course of action,
      you know. I am admitting I did what I did. I did this. I did it. And I
      do want to reveal it. I want to talk to you about it. I don‘t want to
      hide. I don‘t want to lie. I don‘t want to play anymore.

(emphasis added). Wedgeworth told appellant that an attorney would probably tell
him not to talk to them. Appellant responded that he appreciated Wedgeworth‘s
statement, but said that he still wanted to speak to Farrakhan. Wedgeworth left the
room after this exchange. He returned to advise appellant that Farrakhan was
giving his own statement; he stated he would bring Farrakhan to the interview
room when Farrakhan had completed his statement.

      Farrakhan entered the room shortly thereafter. Clopton left the room and
appellant and Farrakhan spoke privately. Farrakhan encouraged appellant to tell
the truth. Farrakhan left the interview room after speaking briefly with appellant.

                                        6
Clopton reentered and said that Farrakhan had told him that appellant wanted to
speak with him. Appellant responded, ―Yeah. I am ready to talk, without the
attorney.‖   Clopton read appellant his Miranda warnings again.            Appellant
acknowledged that he understood these rights, and he explicitly waived them. He
then told Clopton, ―I want to confess to the murder of my grandmother and my
mother.‖ He proceeded to provide details of the offense and explain the lies he had
told in his previous statements.

      During the pretrial hearing on appellant‘s motion to suppress, Wedgeworth
and Clopton both testified that appellant was not in custody at the May 17 video-
taped interview, that he was free to leave at any time, and that, although they began
to suspect that he had murdered his mother and grandmother based on
inconsistencies in his statements and evidence from the crime scene, they did not
have enough evidence to bring charges against him either before or after the
interview. Wedgeworth testified that after appellant completed his interviews on
May 17, he and the rest of the investigative team reviewed and critiqued
everything appellant had said in both his written and videotaped statement.
Wedgeworth testified that sometime after the first interviews were completed on
May 17 and before he and Clopton returned to appellant‘s home the next day, they
determined that appellant was their suspect.

      Later, during appellant‘s trial, Wedgeworth testified similarly. Wedgeworth
referenced inconsistencies in appellant‘s May 17 statements that he and his team
were ―keying in on.‖ Additionally, he stated that, when he and Clopton returned to
appellant‘s home, he told appellant‘s relatives that appellant was their primary
suspect. Wedgeworth also explained that, while at appellant‘s home speaking to
appellant‘s relatives, he told appellant that he needed to ―come clean.‖



                                          7
       After Wedgeworth testified, appellant moved for a mistrial, asserting that
Wedgeworth had testified during the motion-to-suppress hearing that appellant was
not a suspect on May 17, while his trial testimony reflected that appellant was a
suspect on May 17. Appellant asserted that Wedgeworth‘s trial testimony differed
materially from that his pretrial testimony. He asserted that the only remedy for
such ―false‖ testimony was a mistrial. The trial court denied appellant‘s motion for
mistrial.

       After the close of evidence and argument, a jury convicted appellant of
capital murder. The trial court assessed punishment at confinement for life without
the possibility of parole. Appellant timely filed this appeal.

                             MOTION TO SUPPRESS

       In his first issue, appellant asserts that the trial court erred in not suppressing
his May 20, 2008 statement because his Miranda rights were violated. Appellant
challenges the trial court‘s failure to suppress his May 17, 2008 statement,
contending that he was in custody and his Miranda rights were not provided to him
in issue two.

A.     Standard of Review

       We review a trial court‘s ruling on a motion to suppress in the light most
favorable to the trial court‘s ruling. Wiede v. State, 214 S.W.3d 17, 24 (Tex. Crim.
App. 2007). Because the trial court observes the demeanor and appearance of
witnesses, it is the sole trier of fact and judge of the credibility of witnesses and the
weight to be given to their testimony. State v. Ross, 32 S.W.3d 853, 855 (Tex.
Crim. App. 2000) (en banc). When reviewing a trial court‘s denial of a motion to
suppress, we afford almost total deference to the court‘s express or implied
determination of historical facts, while reviewing the court‘s application of the law


                                            8
to the facts de novo. Wiede, 214 S.W.3d at 25. The prevailing party in the trial
court is afforded the strongest legitimate view of the evidence and all reasonable
inferences that may be drawn from that evidence. State v. Garcia–Cantu, 253
S.W.3d 236, 241 (Tex. Crim. App. 2008).

B.     Invocation of Right to Counsel – May 20, 2008 Statement

       In Edwards v. Arizona, the Supreme Court of the United States held that
once an accused has expressed his desire to deal with the police only through
counsel, all custodial interrogation must end ―unless the accused himself initiates
further communication, exchanges, or conversations with the police.‖ 451 U.S.
477, 484–85 (U.S. 1981). The Texas Court of Criminal Appeals has adopted a
two-step process to determine whether the Edwards rule has been met: (1) proof
that the suspect himself initiates further communication with authorities after
invoking the right to counsel, and (2) proof that, after he re-initiates
communication with authorities, he validly waives his right to counsel. Cross v.
State, 144 S.W.3d 521, 527–30 (Tex. Crim. App. 2004) (citing Oregon v.
Bradshaw, 462 U.S. 1039, 1044–46 (1983) (plurality op.)).

       Because the Edwards rule was devised to prevent police from
       badgering a suspect into giving up his right to counsel, compliance
       with that rule, coupled with a suspect‘s re-initiation of
       communications about the investigation, plus a voluntary waiver of
       his previously invoked right to counsel, fully satisfies the rule. Its
       protections fall away.
Id. at 528. Thus, we must determine whether there is proof of this two-step
process here.4



       4
         This case differs from the usual application of Cross in that appellant voluntarily came
into the HCSO homicide division to confess to the murders of his mother and grandmother.

                                               9
      As described above, on May 20, 2008, HCSO Sergeants Wedgeworth and
Clopton escorted appellant into an interview room, and Wedgeworth read Miranda
warnings to appellant. After appellant was advised of his rights, he asked for an
attorney to be present while he talked to them, but stated, ―I will be fully
cooperative with you and tell you everything, tell you the truth.‖ Without any
further questioning from either Wedgeworth or Clopton, appellant volunteered that
he had ―committed the crime.‖ Wedgeworth then left the room to inquire about an
attorney for appellant. Neither Wedgeworth nor Clopton questioned appellant any
further after appellant invoked his right to counsel.

      After appellant had ―invoked‖ his right to counsel, he volunteered several
statements to Clopton, acknowledging his responsibility for the deaths of his
mother and grandmother.          Even though Wedgeworth provided incorrect
information to appellant regarding when appellant was entitled to the appointment
of counsel, appellant continued throughout the entire interview to speak to Clopton
about the offense, both before and after Wedgeworth gave him this information.
Indeed, he volunteered that he had committed the crime before Wedgeworth
provided this incorrect information. Neither Wedgeworth nor Clopton questioned
appellant about the offense after he invoked his right to counsel; instead, appellant
continued to initiate conversation with Clopton and made other incriminating
statements.   In fact, Wedgeworth even told appellant that an attorney would
probably advise him not to speak to them. The trial court found, and the record
supports, that appellant re-initiated conversation with the authorities about the
investigation. There is ample evidence of the first step of the above-described
process. See id. at 528.

      Further, before any further questioning of appellant regarding this offense
occurred, Clopton re-advised him of his Miranda rights. Appellant clearly and

                                          10
unequivocally waived these rights before Clopton questioned him about this
offense. Thus, there is proof that, after appellant re-initiated communication with
authorities, he validly waived his right to counsel. Id.

         We conclude that appellant‘s recorded confession was not taken in violation
of Edwards: appellant took ―himself out from under the protection of the Edwards
bubble.‖ Id. Accordingly, the trial court did not abuse its discretion in denying his
motion to suppress his May 20, 2008 statement. We thus overrule appellant‘s first
issue.

C.       “Custodial” Interrogation – May 17, 2089 Statements

         In his second issue, appellant complains that the trial court abused its
discretion in denying his motion to suppress his exculpatory written and oral
statements taken on May 17, 2008. Specifically, he asserts that, because he was in
custody at the time these statements were taken, the trial court erred in admitting
these statements because his Miranda rights were violated.                     The State
acknowledges that such error, if it occurred, is of a constitutional nature.

         We must reverse a conviction involving constitutional error unless,
reviewing the entire record, it is apparent beyond a reasonable doubt that the error
did not contribute to the defendant‘s conviction or punishment. Tex. R. App. P.
44.2(a). In evaluating such error, we must ―take into account any and every
circumstance apparent in the record that logically informs an appellate
determination whether ‗beyond a reasonable doubt [that particular] error did not
contribute to the conviction or punishment.‘‖ Snowden v. State, 363 S.W.3d 815,
822 (Tex. Crim. App. 2011).

         Here, regardless of any error in their admission, an issue we do not
determine, we are convinced beyond a reasonable doubt that the admission of


                                          11
appellant‘s May 17, 2008, exculpatory written and oral statements did not
contribute to his conviction or punishment. First, as discussed above, appellant
confessed to these offenses on May 20, 2008, and the trial court did not err in
admitting his oral confession. Thus, the jury likely placed little weight on these
exculpatory statements.         See id.     Additionally, the State did not emphasize
appellant‘s exculpatory statements. See id. Moreover, there was overwhelming
evidence of appellant‘s guilt in this case: (1) he confessed to killing his mother
and grandmother; (2) a mixture of blood/DNA from both decedents and appellant‘s
DNA was found on the clothes he was wearing underneath the clothes he had on
when he ―discovered‖ their bodies; (3) a mixture of appellant‘s DNA and the
decedents‘ DNA was discovered in several of the bloodstains and on evidence
discovered at the crime scene; (4) the scene appeared to have been staged to look
like a burglary—there was no sign of forced entry or any items stolen; and (5) a
blanket found in the back of the car appellant had been driving that night had the
blood/DNA of his mother on it.

       In sum, the State placed almost no emphasis on appellant‘s exculpatory
statements. Further, there was overwhelming evidence of appellant‘s guilt in this
case. Accordingly, even if the trial court erred in admitting appellant‘s exculpatory
statements taken on May 17, 2008, we are convinced beyond a reasonable doubt
that any error in admitting them did not contribute to his conviction or
punishment.5 We overrule appellant‘s second issue.




       5
          Tex. R. App. P. 44.2(a). We note further that the State did not seek the death penalty in
this capital-murder case, so appellant was automatically sentenced to life without the possibility
of parole. See Tex. Penal Code § 12.31(a)(2). Because appellant‘s life sentence was automatic,
these statements had no bearing on his punishment.

                                                12
                             MOTION FOR MISTRIAL

      In his third issue, appellant asserts that the trial court erred in denying his
motion for mistrial based on the allegedly false statements made at his trial by
HCSO Sergeant Wedgeworth. A trial court may declare a mistrial in extreme
circumstances when error is so prejudicial that expenditure of further time and
expense would be wasteful and futile. Ocon v. State, 284 S.W.3d 880, 884 (Tex.
Crim. App. 2009). We review a trial court‘s denial of a motion for mistrial for an
abuse of discretion. Id.

      Here, appellant contends that Wedgeworth stated during the hearing on his
motion to suppress that appellant was not a suspect on May 17, 2008, when
appellant provided a written and oral statement to authorities. Appellant asserts
that later, during trial, Wedgeworth testified that appellant was a suspect on May
17, 2008. Appellant‘s assertion is belied by the record, however.

      Wedgeworth testified at trial, just as he had during the pretrial hearing on
appellant‘s motion to suppress, that he believed appellant was being untruthful and
began to suspect appellant when appellant‘s statements were inconsistent with
evidence HCSO crime scene technicians were gathering from the scene.
Wedgeworth testified at trial that, when he and Clopton went back to appellant‘s
house to speak with appellant‘s relatives after they had interviewed appellant on
May 17, they informed appellant‘s relatives that appellant was their ―primary
suspect.‖ Wedgeworth similarly testified during the pretrial motion-to-suppress
hearing that sometime after the first interviews were completed on May 17 and
before he and Clopton returned to appellant‘s home, they determined that appellant
was their primary suspect.

      Here, Wedgeworth‘s trial testimony was consistent with his testimony
during the pretrial hearing on appellant‘s motion to suppress. There is no support
                                         13
for appellant‘s claim that Wedgeworth testified falsely. Accordingly, the trial
court did not abuse its discretion in denying his motion for mistrial. We overrule
appellant‘s third issue.


                                 CONCLUSION

      Having overruled appellant‘s issues, we affirm the trial court‘s judgment.




                                      /s/    Adele Hedges
                                             Chief Justice

Panel consists of Chief Justice Hedges and Justices Boyce and Donovan.
Do Not Publish — Tex. R. App. P. 47.2(b).




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