                           No. PD-1531-14

                               IN THE

              Court of Criminal Appeals
                       At Austin
                           __________

                    KHAHN PHAN,                                 January 22, 2015

                           Appellant
                                 v.

            THE STATE OF TEXAS
                            Appellee
                            _________
                       Cause number 1225435
                 In the 263rd Judicial District Court
                      Of Harris County, Texas

                 Cause number No. 14-13-00215-CR
     In the Court of Appeals for the Fourteenth Judicial District
                            _________

Appellant’s Petition for Discretionary Review
                             __________

                                        KELLY ANN SMITH
                                        Texas Bar No. 00797867
                                        Kelly.A.Smith.06@gmail.com
                                        P.O. Box 10751
                                        Houston, TX 77206
                                        281-734-0668

                                        Counsel for Appellant
                             Grounds For Review


             1. Should Texas police officers be permitted to
                willfully, knowingly, and intentionally delay taking
                a suspect before a magistrate as required by
                Articles 15.16 & 15.17 of Texas Code of Criminal
                Procedure, in a deliberate and admitted effort to
                extract a false confession that is then used against
                the suspect at trial ?

             2. Does the Appellant’s jury argument that his
                confession was involuntary render the trial court’s
                error of failing to include a voluntariness
                instruction in the jury’s charge harmless?




                 Statement Regarding Oral Argument

Because this case involves important issues regarding this state's jurisprudence, the

appellant submits that oral argument would benefit this Court and pursuant to TEX.

R. APP. P. 68.4 (c), requests the opportunity to present oral argument.




                                               i
                                  No. PD-1531-14

                                      IN THE

                     Court of Criminal Appeals
                              At Austin
                                  __________

                           KHAHN PHAN,
                                   Appellant
                                        v.

                    THE STATE OF TEXAS
                                   Appellee
                                   _________
                              Cause number 1225435
                        In the 263rd Judicial District Court
                             Of Harris County, Texas

                         Cause number No. 14-13-00215-CR
            In the Court of Appeals for the Fourteenth Judicial District
                                   _________
  Appellant’s Petition for Discretionary Review
TO THE COURT OF CRIMINAL APPEALS OF TEXAS:

      The appellant, by and through undersigned counsel, files this Petition for

Discretionary Review and urges this Court to grant discretionary review in this case

and in support demonstrates the following.




                                             ii
                                                 Table of Contents
                                                                                                                            Page

GROUNDS FOR REVIEW ............................................................................................... I
STATEMENT REGARDING ORAL ARGUMENT ............................................................... I
INDEX OF AUTHORITIES............................................................................................. III
STATEMENT OF THE CASE ...........................................................................................4
STATEMENT OF THE PROCEDURAL HISTORY ...............................................................4
GROUNDS FOR REVIEW ...............................................................................................2
REASONS FOR REVIEW-GROUND #1 ............................................................................2
REASONS FOR REVIEW-GROUND #2 ............................................................................6
PRAYER .......................................................................................................................7
CERTIFICATE OF COMPLIANCE & SERVICE ..................................................................7



                                           INDEX OF AUTHORITIES

Cases
Almanza v. State,
  686 S.W.2d 157 (Tex. Crim. App. 1984) (op. on reh’g). ................................................ 7
Oursbourn v. State,
  259 S.W.3d 159 (Tex. Crim. App. 2008) ........................................................................ 7

Statutes
TEX. CODE CRIM. PROC. art.15.16 ...................................................................................... 6
TEX. CODE CRIM. PROC. art. 15.17 ..................................................................................... 6
TEX. CODE CRIM. PROC. 38.22 ............................................................................................ 6

Rules
TEX. R. APP. P. 68.4.............................................................................................................. i




                                                                     iii
TO THE HONORABLE COURT OF APPEALS:

                           STATEMENT OF THE CASE

      The State accused the appellant of murder. The indictment alleged that the

appellant caused Simon Truong’s death by shooting Truong with a firearm. The

appellant pled not guilty to the indictments’ allegations, and the case was tried

together before a jury and the Honorable Jim Wallace, presiding judge of the 263rd

District Court in Harris County Texas (RR Vol. III at 12-3). The jury found the

appellant guilty of murder than assessed his punishment at twenty-eight years in

prison (RR Vol. VI at 96; Vol. VII at 4).




                STATEMENT OF THE PROCEDURAL HISTORY

      The Fourteenth Court of Appeals affirmed the appellant’s conviction in Khahn

Phan v. The State of Texas, No. 14-13-00215-CR, (Tex. App.—Houston [14th Dist.]

October 14, 2014). Neither party filed a motion for rehearing.




                                             iv
                            GROUNDS FOR REVIEW

             1 Should Texas police officers be permitted to
               willfully, knowingly, and intentionally delay taking
               a suspect before a magistrate as required by
               Articles 15.16 & 15.17 of Texas Code of Criminal
               Procedure, in a deliberate and admitted effort to
               extract a false confession that is then used against
               the suspect at trial ?

             2. Does the Appellant’s jury argument that his
                confession was involuntary render the trial court’s
                error of failing to include a voluntariness
                instruction in the jury’s charge harmless?




                     REASONS FOR REVIEW-GROUND #1

                Should Texas police officers be permitted to
                willfully, knowingly, and intentionally delay taking
                a suspect before a magistrate as required by
                Articles 15.16 & 15.17 of Texas Code of Criminal
                Procedure, in a deliberate and admitted effort to
                extract a false confession that is then used against
                the suspect a trial ?

      The appellate court erroneously upheld the trial court’s improper admission of

the Appellant’s statement. The evidence unquestionably established that Houston

police detective Brian Harris arrested the Appellant, then admittedly and intentionally

failed to present the Appellant to a magistrate in compliance with the Texas Code of

Criminal Procedure. The Appellant’s videotaped confession is inadmissible because



                                              2
the confession was obtained in violation of Articles 15.16 & 15.17 of the Texas Code

of Criminal Procedure. Article 15.16 of the Texas Code provides that upon making

an arrest, a suspect shall be taken “without unnecessary delay” before a magistrate so

that the magistrate can expeditiously provide the suspect with the Miranda warnings

required by article 15.17 of the Texas Code of Criminal Procedure. TEX. CODE CRIM.

PROC. art. 15.16.

      Harris’s intentional failure to comply with the statute and present the Appellant

before a magistrate—at least one of which was present inside the building where the

Appellant was confined—until after three interrogations and 20 hours in custody was

calculated to induce the Appellant’s confession.     Harris’s actions in intentionally

flouting Texas law to induce a confession rendered the Appellant’s confession

involuntary.

      On April 7, 2009, Simon Truong was shot to death on Bellaire in Houston,

Texas (RR Vol. III 36-39, 83-5, 209-10, 214; IV 112). Eventually police received an

anonymous tip and as a result suspected the Appellant shot Truong (RR Vol. IV at

123-4). Houston Police detective Brian Harris arrested the Appellant for Truong’s

death and took him to police headquarters in downtown Houston (RR Vol. IV at

133). Harris put the Appellant in an interview room “[w]ith the intention of taking a

statement.” (RR Vol. IV at 134). The Appellant denied any involvement in Truong’s




                                             3
death.     But after twenty hours and three separate interrogations, the Appellant

implicated himself in Truong’s murder (State exhibits ## 84 & 118).

         The Appellant is a Vietnamese immigrant and speaks English with a thick

accent (RR Vol. V at 33-4). Harris admitted that he interrupted the Appellant when

he tried to ask questions about his rights and that the Appellant never explicitly

waived his rights and agreed to talk to Harris (RR Vol. IV at 215, 218). Harris

employed a “shock and awe” strategy while interviewing the Appellant to elicit a

confession (RR Vol. IV at 150). When the Appellant initially refused to incriminate

himself, Harris had the Appellant spend the night in jail without any way to post bail

(RR Vol. IV at 153, 225). Harris intentionally did not take the Appellant before a

magistrate because it’s not his job to take suspects before magistrates (RR Vol. V at

119).

         Harris lied to the Appellant: “I said family, friends, your own friends have all

talked and they've all told us what has happened.” (RR Vol. IV at 76). Harris also

showed the Appellant a statement made by the Appellant’s friend, but did not let the

Appellant read it (RR Vol. IV at 232). Harris wanted the Appellant to think his

friend had implicated him in the statement him when in fact he had not (RR Vol. IV

at 232; Defense Exhibit # 17).

         Some 20 hours after arresting the Appellant, Harris interviewed the Appellant

for a third time. Harris again deliberately chose not to take the Appellant before a

magistrate. Instead, Harris read the Appellant his legal warnings and the Appellant

                                                4
finally incriminated himself in Truong’s murder. (State’s Exhibit # 85). Finally, 36

hours after Harris arrested him, the Appellant went before a magistrate. In this case,

not only was the delay unreasonable and unnecessary, it was intentionally calculated to

induce the Appellant to confess.

       Because Harris intentionally violated Texas law by holding the Appellant in

custody 20 hours and conducting three separate interrogations in a calculated effort

to induce the Appellant’s confession, the Appellant’s confession was involuntary. The

trial court erred in denying the Appellant’s motion to suppress his recorded oral

statement in violation of Texas Code of Criminal Procedure articles 15.16, 15.17 &

38.22. See TEX. CODE CRIM. PROC. art. 15.16,art. 15.17, & art. 38.22, § 3. The court

of appeals’ holding, that the trial court properly admitted the Appellant’s confession

because Harris advised him of his Miranda rights, fails to address the issue presented.

See Phan v. State, slip op. at 5.

       The court of appeals is wrong. The Appellant’s 20-hour detention constituted

an “unreasonable delay” under Articles 15.16 & 15.17, which rendered the Appellant’s

videotaped statement involuntary and inadmissible.

       This Court should not condone Harris’s behavior and should instead grant

discretionary review to determine whether Harris’ over-reaching conduct rendered the

Appellant’s statement involuntary. Texas police officers should not be permitted to

willfully, knowingly, and intentionally delay taking a suspect before a magistrate as

required by Articles 15.16 & 15.17 of Texas Code of Criminal Procedure, in a

                                              5
deliberate and admitted effort to extract a false confession that is then used against

the suspect at trial.



                        REASONS FOR REVIEW-GROUND #2

                  Does the Appellant’s jury argument that his
                  confession was involuntary render the trial court’s
                  error of failing to include a voluntariness
                  instruction in the jury’s charge harmless?



       The trial court improperly admitted the Appellant’s statement. At the trial’s

conclusion, the trial court failed to instruct the jury to decide whether the Appellant

was adequately warned of his rights and knowingly and intelligently waived these

rights before the Appellant made his statement as the result of custodial interrogation

under Section 7 of Article 38.22 of Texas Code of Criminal Procedure. See Oursbourn v.

State, 259 S.W.3d 159, 169 (Tex. Crim. App. 2008). Because the Appellant raised the

voluntariness issue outside the jury’s presence and offered evidence before the jury,

thereby the instruction was mandatory under Oursbourn. The trial court’s failure to

give the instruction was error. The court of appeals’ holding that this error was

harmless because the Appellant argued to the jury that Harris coerced his confession

is error. This Court should grant review to determine whether jury argument can

render the trial court’s failure to properly instruct the jury harmless under Almanza v.

State, 686 S.W.2d 157 (Tex. Crim. App. 1984) (op. on reh’g).


                                              6
                                        PRAYER

      The appellant respectfully urges this Honorable Court to grant the Appellant’s

Petition for Discretionary Review.


                                                   ______ /s /___________________
                                                   KELLY ANN SMITH
                                                   Texas Bar No. 00797867



                 CERTIFICATE OF COMPLIANCE & SERVICE

      Under TEX. R. APP. P. 9.4, 9.5 & 68.11, this certifies that this document contains

4079 words and the undersigned served a copy of this petition on the State of Texas and

the State Prosecuting Attorney at the following addresses:


      Devon Anderson                            Lisa C. McMinn
      Harris County District Attorney           P.O. Box 13046
      1201 Franklin, Suite 600                  Capitol Station
      Houston, Texas 77002                      Austin, Texas 78711
                                                (512) 463-1660




                                                   ______ /s /___________________
                                                   KELLY ANN SMITH
                                                   Texas Bar No. 00797867
                                                   P.O. Box 10752
                                                   Houston, TX 77206
                                                   281-734-0668




                                               7
Affirmed and Memorandum Opinion filed October 14, 2014.




                                       In The

                     Fourteenth Court of Appeals

                               NO. 14-13-00215-CR

                           KHAHN PHAN, Appellant

                                         V.
                       THE STATE OF TEXAS, Appellee

                    On Appeal from the 263rd District Court
                            Harris County, Texas
                        Trial Court Cause No. 1225435

                 MEMORANDUM                       OPINION


      Appellant Khahn Phan appeals his conviction for the murder of Simon
Truong. In two issues, appellant challenges (1) the admission of his confession on
the grounds that the arresting officer’s willful delay prior to bringing him before a
magistrate rendered his confession inadmissible under Article 15.17 of the Texas
Code of Criminal Procedure; and (2) the trial court’s failure to instruct the jury sua
sponte that if it found appellant’s confession involuntary beyond a reasonable



                                              2
doubt, it could not consider the confession as evidence. We hold that even if the
delay between appellant’s arrest and magistrate hearing was unreasonable, the trial
court did not abuse its discretion in finding that appellant received Miranda
warnings and admitting his confession.               We also conclude that even if a jury
instruction on the issue of voluntariness was required, appellant did not suffer
egregious harm as a result of the omission. We therefore affirm the trial court’s
judgment.

                                         BACKGROUND

         Simon Truong was shot and killed outside a bar located on Bellaire
Boulevard in Houston, Texas. Sergeant Brian Harris was tasked with investigating
the murder. Following his investigation, Sergeant Harris arrested appellant for the
offense. Within the first 20 hours after the arrest, Harris met with appellant three
times without taking him before a magistrate.

         During the initial interrogation, after appellant received the requisite
Miranda 1 warnings, Harris employed a “shock and awe” strategy in which he lied
to appellant about the evidence against him. This effort was designed to elicit a
confession.       Despite Officer Harris’s deceptions, however, appellant denied any
involvement in the murder.             After the first interrogation, Harris deliberately
avoided taking appellant before a magistrate because he wanted appellant to spend
the night in jail.

         The next morning, Harris met with appellant a second time. Harris did not
record this conversation or read appellant Miranda warnings. Harris testified that
the meeting was not an interrogation and that he merely talked to appellant about
his family and about individuals who had provided Harris with statements. Harris

1
    Miranda v. Arizona, 384 U.S. 436 (1966); see also Tex. Code Crim. Proc. Ann. art. 38.22.

                                                 2
also said that appellant would need to initiate contact if he wanted to discuss the
case further. Harris then returned appellant to his cell and went directly to his
office. On arrival, Harris was informed he had received a message from appellant
requesting a meeting.

         Later that day, Harris met with appellant a third time. The interrogation was
recorded and Harris read appellant the required Miranda warnings. Harris testified
that he did not utilize any deceitful tactics during this interrogation but instead let
appellant do most of the talking.            Appellant confessed to the murder of Simon
Truong. Finally, approximately 36 hours after his arrest, appellant was taken for a
magistrate hearing.

         At trial, appellant filed a motion to suppress his confession on two grounds.
First, appellant argued that the confession was involuntary.                Appellant alleged
Sergeant Harris’s deceitful behavior during the first two meetings tainted the third
encounter and that he never validly waived his rights. 2 Second, appellant alleged
that the 36-hour time period between his arrest and magistrate hearing constituted
an unreasonable delay under Article 15.17 of the Texas Code of Criminal
Procedure and therefore his confession was inadmissible. The trial court ruled that
appellant’s confession was admissible, finding that the previous encounters did not
taint the confession and that it was voluntarily given. In particular, the court found
that appellant requested to meet with Harris and received Miranda warnings prior
to his confession, and that the delay was not unreasonable given that the statute
contemplates delays of up to 48 hours before an individual is taken to see a
magistrate.



2
    Appellant does not renew this argument as a separate issue on appeal.

                                                  3
      During Sergeant Harris’s testimony to the jury, appellant drew attention to
Harris’s admittedly deceitful statements at the first interrogation and the
unrecorded second meeting.       Although appellant did not ask the trial court to
instruct the jury that it could not consider his confession as evidence if it found the
confession was involuntarily given, the trial court nevertheless instructed the jury
not to consider any evidence gathered in violation of the “Constitution or laws of
the State of Texas, or of the Constitution or laws of the United States . . . .” At
closing arguments, appellant alleged that Harris’s conduct had manipulated him
into confessing at the final interrogation. These arguments proved unsuccessful,
however, as the jury found appellant guilty of the murder of Simon Truong.

                                     ANALYSIS

I.    The Trial Court did not abuse its discretion in admitting appellant’s
      confession.
      In his first issue, appellant argues that Sergeant Harris’s willful failure to
take him before a magistrate in a deliberate attempt to extract a confession
rendered the delay between his arrest and magistrate hearing unreasonable under
Article 15.17 of the Texas Code of Criminal Procedure.            As a result of the
unreasonable delay, appellant contends, the trial court erred in admitting his
confession. We hold that even if the delay was unreasonable, appellant has not
met his burden of demonstrating that the trial court abused its discretion in finding
that appellant received Miranda warnings and admitting his confession.

      A.     Standard of review

      We review for abuse of discretion a trial court’s ruling on a motion to
suppress a confession as involuntary. Delao v. State, 235 S.W.3d 235, 238–39
(Tex. Crim. App. 2007). The trial court is the sole trier of fact and judge of the
credibility of the witnesses and the evidence presented at the hearing on the
                                          4
motion. Id. “A trial judge’s decision on the admissibility of evidence . . . will not
be reversed if it is within the zone of reasonable disagreement.” Tillman v. State,
354 S.W.3d 425, 435 (Tex. Crim. App. 2011). We “must uphold the trial court’s
ruling if it is reasonably supported by the record and is correct under any theory of
law applicable to the case.” Willover v. State, 70 S.W.3d 841, 845 (Tex. Crim.
App. 2002). This principle holds true even when the trial judge gives the wrong
reason for his decision, and is especially true with regard to admission of evidence.
Romero v. State, 800 S.W.2d 539, 543 (Tex. Crim. App. 1990).

      B.      Any unreasonable delay in taking appellant before a magistrate
              does not invalidate his otherwise voluntary confession because he
              was given Miranda warnings.
      An arresting officer “shall without unnecessary delay” have the arrested
person taken before a magistrate. Tex. Code Crim. Proc. art. 15.17(a). Assuming
without deciding that the 36-hour delay in this case was unnecessary and
unreasonable, we overrule appellant’s first issue because we hold the trial court did
not abuse its discretion in admitting his confession.

      “The failure to take an arrestee before a magistrate in a timely manner will
not invalidate a confession unless there is proof of a causal connection between the
delay and the confession.” Cantu v. State, 842 S.W.2d 667, 680 (Tex. Crim. App.
1992). In this case, the trial court found that appellant was read his Miranda rights
before the final interrogation and subsequent confession and that the confession
was voluntary.     “[I]t is well-settled that an unreasonable delay in bringing an
arrestee before a magistrate will not invalidate an otherwise voluntary confession if
the arrestee was properly advised of his Miranda rights prior to making the
statement.”    Garcia v. State, 191 S.W.3d 870, 876 (Tex. App.—Houston [14th
Dist.] 2006, no pet.) (citation omitted); see Cantu, 842 S.W.2d at 680. The

                                          5
testimony of Sergeant Harris summarized above supports the trial court’s findings.
Accordingly, the trial court did not abuse its discretion in admitting appellant’s
confession notwithstanding the delay, and we overrule appellant’s first issue.

II.   Appellant did not suffer egregious harm as a result of the trial court’s
      failure to instruct the jury on voluntariness.
      In his second issue, appellant contends the trial court erred by failing to
instruct the jury sua sponte that his confession could not be considered as evidence
if it was involuntary. We hold that even if the court should have instructed the jury
on the issue of voluntariness, appellant did not suffer egregious harm as a result of
the omitted instruction because he was able to make the same voluntariness
arguments to the jury under the charge the court provided.

      A.     Standard of review and applicable law

      In resolving a challenge to the jury charge, we first determine whether error
exists. Ngo v. State, 175 S.W.3d 738, 743 (Tex. Crim. App. 2005). If we find
error, we analyze that error for harm under the applicable standard set out in
Almanza v. State, 686 S.W.2d 157 (Tex. Crim. App. 1984) (op. on reh’g). See also
Barrios v. State, 283 S.W.3d 348, 350 (Tex. Crim. App. 2009). If, as here, the
defendant did not object to the alleged error at trial, we will reverse only if the
error is “so egregious and created such harm that the defendant ‘has not had a fair
and impartial trial.’” Id. (quoting Almanza, 686 S.W.2d at 171). “In examining
the record to determine whether jury-charge error is egregious, the reviewing court
should consider the entirety of the jury charge itself, the evidence, including the
contested issues and weight of the probative evidence, the arguments of counsel,
and any other relevant information revealed by the record of the trial as a whole.”
Stuhler v. State, 218 S.W.3d 706, 719 (Tex. Crim. App. 2007).


                                         6
      Article 36.14 of the Texas Code of Criminal Procedure requires the trial
court to deliver a written charge to the jury “distinctly setting forth the law
applicable to the case.”     Tex. Crim. Proc. Code Ann. art. 36.14 (West 2007).
Defensive issues may be forfeited if their inclusion in the charge is not requested.
Zamora v. State, 411 S.W.3d 504, 513 (Tex. Crim. App. 2013). If the trial court
undertakes to charge the jury on a defensive issue, that issue is included in the law
applicable to the case. Barrera v. State, 982 S.W.2d 415, 416 (Tex. Crim. App.
1998).     Otherwise, unless “a rule or statute requires an instruction under the
particular circumstances,” the defendant must timely request a defensive issue or
object to its omission from the charge in order for it to be considered the law
applicable to the case. Oursbourn v. State, 259 S.W.3d 159, 179–80 (Tex. Crim.
App. 2008); see also Williams v. State, 273 S.W.3d 200, 223 (Tex. Crim. App.
2008) (“[A] party can forfeit the right to complain about the omission of a
defensive issue because the defensive issue must be requested before the trial court
has a duty to place it in the charge, and so no ‘error’ occurs absent a request.”).

      B.     Appellant was not egregiously harmed by the absence of a
             voluntariness instruction because he was able to argue that his
             confession was involuntary under the court’s charge.
      Appellant did not request a jury charge on the issue of voluntariness at trial,
and none was given. Appellant nonetheless complains that the trial court had an
absolute duty to instruct on voluntariness sua sponte under Article 38.22 of the
Texas Code of Criminal Procedure.          The statute provides that after a judicial
determination that a statement was voluntary, evidence on the issue may be
submitted to the jury and “it shall be instructed that unless the jury believes beyond
a reasonable doubt that the statement was voluntarily made, the jury shall not
consider such statement for any purpose nor any evidence obtained as a result
thereof.” Tex. Crim. Proc. Code Ann. art. 38.22 § 6 (West 2005).
                                           7
      The State counters that an appellant must actually litigate the issue of
voluntariness at trial to be entitled to a section 6 instruction, and that appellant only
raised the issue of voluntariness with regard to his first interrogation, which
produced no incriminating statements.          Oursborn, 259 S.W.3d 159, 176 (Tex.
Crim. App. 2008) (“An interpretation of Section 6 that requires some sort of
litigation before it becomes law applicable to the case accords not only with the
statutory language but also with common sense.”).          Appellant responds that he
raised the issue of voluntariness before the jury and therefore an instruction was
mandatory.

      Assuming without deciding that the voluntariness of appellant’s confession
was litigated at trial and that failure to include a section 6 instruction was error, we
overrule appellant’s second issue because we hold he was not egregiously harmed
by the omission. The record establishes that the trial court instructed the jury not
to consider any evidence that it believed or had a reasonable doubt was obtained in
violation of the state or federal constitutions, or of state or federal law. Although
this instruction is certainly more general than the one appellant claims he should
have received under section 6 of Article 38.22, in substance, the instruction
provided appellant a vehicle to have the jury consider the voluntariness of his
confession. Furthermore, appellant’s counsel took advantage of this vehicle during
his closing argument, contending that appellant’s confession had been tainted by
the officer’s conduct during the first two encounters.

      Appellant was thus able to argue that his confession was involuntary and
should not be considered as evidence under the jury instructions actually provided
by the trial court.    Under these circumstances, we conclude appellant was not
denied a fair trial. Almanza, 686 S.W.2d at 171. Accordingly, we hold appellant


                                           8
was not egregiously harmed by the absence of a voluntariness instruction, and we
overrule appellant’s second issue.

                                      CONCLUSION

      Having overruled each of appellant’s issues, we affirm the trial court’s
judgment.



                                /s/           J. Brett Busby
                                              Justice

Panel consists of Justices Boyce, Busby, and Wise.
Do Not Publish — TEX. R. APP. P. 47.2(b).




                                          9
