Opinion issued November 8, 2012.




                                     In The

                              Court of Appeals
                                    For The

                         First District of Texas
                           ————————————
                             NO. 01-11-00645-CR
                           ———————————
                        TERRENCE REED, Appellant
                                       V.
                      THE STATE OF TEXAS, Appellee



                   On Appeal from the 228th District Court
                           Harris County, Texas
                       Trial Court Cause No. 1283986


                         MEMORANDUM OPINION

      After the trial court denied his motions to suppress evidence and a recorded

confession, Terrence Reed pleaded guilty to unlawful possession of a firearm. See

TEX. PENAL CODE ANN. § 46.04(a) (West 2011). The trial court found Reed to be a

habitual offender and assessed his punishment at twenty-five years’ confinement.
Reed challenges the trial court’s denial of his motions to suppress. Finding no

error, we affirm.

                                        Background

      Officer K. McDaniel questioned Reed while Reed was in custody in the

Harris County Jail on unrelated charges of burglary of a motor vehicle. Over the

course of three separate interviews, Reed admitted to stealing a firearm and selling

it to a third party, Victor Martinez.

      Officer McDaniel later contacted Martinez and questioned him about the

gun. Martinez denied possessing the gun but disclosed that he knew who had it.

Martinez was reluctant to turn the gun over to police, because as a convicted felon,

his possession of a firearm is illegal. After McDaniel assured Martinez that he

would not arrest him, Martinez complied and brought the gun to the authorities.

      McDaniel testified that he had read Reed Miranda warnings before each of

the three interviews. McDaniel recorded only the last interview. Reed first asked

McDaniel whether he was in trouble, and McDaniel responded, “No, no.” Reed

then asked, after being read his Miranda warnings, “You aren’t gonna put no new

charges on me, or anything?” McDaniel did not answer. After a pause, Reed said,

“Well, I’m willing to cooperate, but I was just wondering.” McDaniel then said,

“All we really want to know about is—you talked about [Martinez]—you sold him

the gun. Tell us about that.” After Reed confessed, detailing how he stole the gun



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and sold it to Martinez, he again asked, “I don’t have any new charges on me, or

nothing do I?” Officer McDaniel replied that he would present the case to the

District Attorney, who would decide whether to charge Reed.

                                     Discussion

      Reed challenges the admissibility of the firearm to be used as evidence

against him and of a recorded statement that he gave to police. The trial court

declined to suppress either.

Standard of Review

      We review a trial court’s ruling on a motion to suppress for abuse of

discretion. Shepherd v. State, 273 S.W.3d 681, 684 (Tex. Crim. App. 2008). We

view the evidence in the light most favorable to the trial court’s ruling. Wiede v.

State, 214 S.W.3d 17, 24 (Tex. Crim. App. 2007) (quoting State v. Kelly, 204

S.W.3d 808, 818 (Tex. Crim. App. 2006)). We defer to a trial court’s express or

implied determination of historical facts, as well as to its application of law to fact

questions if those questions turn on the evaluation of credibility and demeanor. See

Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim. App. 1997). We will uphold the

trial court’s ruling if it is reasonably supported by the record and correct on any

theory of law applicable to the case. Laney v. State, 117 S.W.3d 854, 857 (Tex.

Crim. App. 2003).

Suppression of the Firearm and Standing



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      Reed first contends that, because Martinez is a convicted felon and

McDaniel knowing this, encouraged Martinez to commit the offense of possessing

a firearm as a felon in order to obtain the firearm. Therefore, the firearm should

have been suppressed, because it constitutes illegally obtained evidence. The State

counters that Reed lacks standing to raise this challenge.

      Article 38.23 of the Texas Code of Criminal Procedure provides:

      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.

TEX CODE CRIM. PROC. ANN. art. 38.23 (West 2005). To challenge the admission

of evidence under article 38.23, an appellant must first establish that he has

standing. Kothe v. State, 152 S.W.3d 54, 59 (Tex. Crim. App. 2004). We review

the question of standing de novo. Id.

      Reed admitted that he had sold the gun to Martinez, and thus had no

expectation of privacy in the gun. See Pham v. State, 324 S.W.3d 869, 875 (Tex.

App.—Houston [14th Dist.] 2010, pet. ref’d) (“By giving the bag to [a confidant to

deliver to a third party], appellant assumed the risk that his confidant would reveal

that information to the public, thus frustrating appellant's expectation of privacy.”).

Martinez cooperated with the authorities and willingly produced the gun. Reed has

not demonstrated how McDaniel’s urging Martinez to obtain the gun knowing



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Martinez was a felon implicates Reed’s constitutional or legal rights. Reed thus

lacked standing to challenge the admission of the gun or complain about

McDaniel’s encouraging Martinez to retrieve the gun. See Pham, 324 S.W.3d at

875.

Suppression of Recorded Statement

       Second, Reed contends that his recorded statement was involuntary, because

Officer McDaniel unlawfully induced Reed to make it with promises of

transactional immunity if he cooperated in the investigation. Smith v. State, 70

S.W.3d 848, 850–51 (Tex. Crim. App. 2002) (“A grant of immunity from

prosecution is, conceptually, a prosecutorial promise to dismiss the case.”). Texas

Code of Criminal Procedure article 38.21 provides, “A statement of an accused

may be used in evidence against him if it appears that the same was freely and

voluntarily made without compulsion.” TEX. CODE CRIM. PROC. ANN. art. 38.21

(West 2005). A promise of immunity renders a confession invalid only if it induces

the confession. Muniz v. State, 851 S.W.2d 238, 254 (Tex. Crim. App. 1993). To

exclude a statement based on a promise of immunity, the defendant must show that

a promise was made. Henderson v. State, 962 S.W.3d 544, 564 (Tex. Crim. App.

1997). The promise must be “(1) positive, (2) made or sanctioned by someone in

authority, and (3) of such an influential nature that a defendant would speak

untruthfully in response thereto.” Muniz, 851 S.W.2d at 254. A promise is



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established only by the presence of an “if–then” relationship. See Chamber v.

State, 866 S.W.2d 9, 20–21 (Tex. Crim. App. 1993). There is no promise unless a

defendant can demonstrate that his confession was induced by “implicitly or

explicitly suggesting a deal, bargain, agreement, exchange, or contingency.” Id.

      Viewed in the light favoring the trial court’s ruling, the record does not

support Reed’s contention that his statement was involuntary. Officer McDaniel

testified that he had read Reed his statutory warnings, including a warning that his

statements could be used against him. Although Reed asked whether any further

charges would be filed, the trial court, as fact-finder, reasonably could have

concluded McDaniel made no promise to Reed. Reed directs us to his question at

the beginning of the audio recording of his third interview regarding whether he

would be facing any new charges. However, the officers present did not answer

Reed’s question. Reed then told McDaniel, “I’m willing to cooperate, but I was

just wondering.” McDaniel again ignored the question and told Reed that he

wanted to know how he had obtained the gun. Silence may not be assumed to

render a promise because a promise must carry the suggestion of a quid pro quo.

Hill v. State, 902 S.W.2d 57, 59 (Tex. App.—Houston [1st Dist.] 1995, pet. ref’d).

                                    Conclusion

      We conclude that Reed has failed to show he meets the threshold criteria to

suppress the evidence offered against him. Accordingly, the trial court did not



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abuse its discretion in denying Reed’s motion to suppress. We therefore affirm the

judgment of the trial court.




                                               Jane Bland
                                               Justice

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

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




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