                                                                       PD-1262-15
                                                      COURT OF CRIMINAL APPEALS
                                                                      AUSTIN, TEXAS
                                                    Transmitted 10/19/2015 2:43:59 PM
                                                      Accepted 10/19/2015 4:39:53 PM
                                                                       ABEL ACOSTA
                   CASE NO. PD-1262-15                                         CLERK



   IN THE COURT OF CRIMINAL APPEALS OF TEXAS
                 AUSTIN, TEXAS



             ALPHONSON DAMON MALONE,
                     Appellant

                           VS.

                   THE STATE OF TEXAS,
                         Appellee


         On Petition for Discretionary Review from
                 The First Court of Appeals
           In No. 01-14-00054-CR Affirming the
    Judgment of Conviction in Cause No.1899612 from the
            County Criminal Court at Law No.8
                   Harris County, Texas


APPELLANT’S PETITION FOR DISCRETIONARY REVIEW


                                 GARY TABAKMAN
                                 TBA No. 24076065
                                 712 MAIN ST., Ste. 2400
                                 HOUSTON, TEXAS 77002
                                 TELEPHONE: (713) 228-8500
                                 FACSIMILE: (713) 228-0034
                                 EMAIL: Gary@BSDLawfirm.com
October 19, 2015                 COUNSEL FOR APPELLANT,
                                 ALPHONSON DAMON MALONE
                     NOTICE OF INTERESTED PARTIES

      Pursuant to Tex. R. App. R. 68.4(a), the following is a list of all parties to the

trial court’s judgment as well as the names and addresses of trial and appellate

counsel.

Presiding Judge
The Honorable Jay Karahan
Harris County Criminal Court at Law No.8
1201 Franklin, 9th Floor
Houston, Harris County, Texas 77002

Attorneys for Appellee (State of Texas)
Ryan Trask               (at trial)
Kathryn Davis            (on appeal)
Devon Anderson           (on appeal)
Harris County District Attorney’s Office
1201 Franklin
Houston, Texas 77002

Attorneys for Appellant
Gary Tabakman           (at trial and on appeal)
712 Main, Ste. 2400
Houston, Texas 77002

Appellant
Alphonson Damon Malone




                                          ii
                                        TABLE OF CONTENTS

NOTICE OF INTERESTED PARTIES ................................................................... ii

TABLE OF CONTENTS ......................................................................................... iii

INDEX OF AUTHORITIES.....................................................................................iv

STATEMENT REGARDING ORAL ARGUMENT ..............................................vi

STATEMENT OF THE CASE .................................................................................vi

STATEMENT OF PROCEDURAL HISTORY..................................................... vii

APPELLANT'S FIRST GROUND FOR REVIEW .................................................. 2

         The Court of Appeals erred in finding probable cause for the
         warrantless arrest of Appellant, a passenger in a vehicle, by a
         totality of the circumstances in conflict with Amores v. State, 816
         S.W.2d 407, 411 (Tex.Crim.App.1991).

APPELLANT'S SECOND GROUND FOR REVIEW ............................................. 7

         The Court of Appeals erred in holding that Appellant’s
         incriminating statement after he was in custody was voluntarily
         made rather than the result of a custodial interrogation triggering
         Appellant’s Miranda rights.

PRAYER FOR RELIEF .......................................................................................... 11

CERTIFICATE OF COMPLIANCE ....................................................................... 12

CERTIFICATE OF SERVICE ................................................................................ 12

APPENDIX ........................................................................................................... A-1




                                                          iii
                                   INDEX OF AUTHORITIES

CASES                                                                                                PAGE

Amores v. State,
816 S.W.2d 407 (Tex.Crim.App.1991) .......................................................... iii,3,4,7

Estrada v. State,
154 S.W.3d 604 (Tex.Crim.App. 2005). ................................................................... 5

Leday v. State,
3 S.W.3d 667, 672 (Tex. App.—Beaumont 1999, pet. ref’d). ............................ 3,5,6

Miranda v. Arizona,
384 U.S. 436, 444, 16 L. Ed. 2d 694, 86 S. Ct. 1602 (1966)........................... iii,7-10

Nuttal v. State,
87 S.W.3d 219 (Tex. App.—Amarillo 2002, no pet.) ............................................ 4,5

Pyles v. State,
755 S.W2d 98 (Tex. Crim. App. 1988) .................................................................. 4,5

Ramirez v. State,
105 S.W.3d 730 (Tex. App.-Austin 2003, no pet.) .............................................. 8-10

Rhode Island v. Innis,
466 U.S. 291, 100 S. Ct. 1682 (1980) ........................................................................ 8

State v. Crisp,
74 S.W.3d 474, 483 (Tex. App. Waco 2002) ......................................................... 5,6

State v. Moore,
25 S.W.3d 383, 386 (Tex.App.-Austin 2000, no pet.) ............................................ 5,6

State v. Ortiz,
382 S.W.3d 367 (Tex. Crim. App. 2012) ................................................................ 10




                                                      iv
Terry v. Ohio,
392 U.S. 1, 88 S.Ct.1868, 20 L.Ed.2d 889 (1968). .................................................... 3

Ybarra v. Illinois,
444 U.S. 85, 100 S.Ct. 338 (1979) ............................................................................. 3

STATUTES

TEX. CODE. CRIM. PROC. ART. § 14.01(b) ...................................................... 4,6

RULES

TEX. R. APP. P. 66.1................................................................................................. 1

TEX. R. APP. P. 66.3(a) ......................................................................................... 2,7

TEX. R. APP. P. 66.3(c) ....................................................................................2,7,11




                                                          v
                    STATEMENT REGARDING ORAL ARGUMENT

         Appellant requests oral argument as it will assist the Court in fashioning the

proper relief. Oral argument would be of significant assistance to this Court as this

case presents important issues regarding whether an officer had probable cause to

arrest Appellant based on unusual factors applying a totality of the circumstances

factors and whether Appellant’s incriminating statement to the officer was a result

of a custodial interrogation.

                                STATEMENT OF THE CASE

         This case concerns a conviction for possession of marijuana. On December 6,

2013, the trial court conducted an evidentiary hearing on Appellant’s written motion

to suppress evidence. On that same date, the trial court denied the motion to suppress

evidence. (CR 24).1 Appellant entered a plea of guilty and was sentenced to two (2)

days in the Harris County Jail, with one (1) day Credit. (CR 25). On January 6, 2013,

Appellant filed his written notice of appeal, appealing the denial of the written

pretrial motion to suppress evidence. (CR 31). No motion for new trial was filed.




1
    (CR) refers to the Clerks Record and (RR) will refer to the Reporters Record.

                                                  vi
           STATEMENT OF PROCEDURAL HISTORY

1. December 6, 2013    Evidentiary Hearing (Motion to Suppress)

2. October 2, 2014     Appellant’s Brief Filed (First Court of Appeals)

3. November 21, 2014   State Brief Filed.

4. December 30, 2014   Appellant’s Reply Brief Filed

5. February 10, 2015   Judgment Affirming Trial Court’s Judgement with

                       Memorandum Opinion.

6. March 27, 2015      Appellant Filed Motion for Rehearing.

7. April 23, 2015      The First Court of Appeals Opinion Issued

                       withdrawing February 10th Opinion.

8. On May 28, 2015     Appellant’s Second Motion for Rehearing Filed.

9. June 11, 2015       The First Court of Appeals issued a sua sponte order

                       for the court to receive and review the video (CD)

                       as State’s Exhibit No. 1.

10. August 18, 2015    The First Court of Appeals denied Appellant’s

                       motion for rehearing.

11. October 19, 2015   Petition for Discretionary Review due,




                               vii
                              CASE NO. PD-1262-15


            IN THE COURT OF CRIMINAL APPEALS OF TEXAS
                          AUSTIN, TEXAS



                       ALPHONSON DAMON MALONE,
                               Appellant

                                        VS.

                             THE STATE OF TEXAS,
                                   Appellee


         APPELLANT’S PETITION FOR DISCRETIONARY REVIEW


TO THE HONORABLE JUDGES OF THE COURT OF CRIMINAL APPEALS:

      COMES NOW, ALPHONSON DAMON MALONE, Appellant in the above-

styled and numbered cause of action, by and through counsel of record, Gary

Tabakman, and pursuant to Tex. R. App. P. 66.1, respectfully urges this Court to

grant discretionary review of this cause, and in support thereof would show unto this

Honorable Court the following:




                                         1
                APPELLANT’S FIRST GROUND FOR REVIEW

      The Court of Appeals erred in finding probable cause for the
      warrantless arrest of Appellant, a passenger in a vehicle, by a
      totality of the circumstances in conflict with Amores v. State, 816
      S.W.2d 407, 411 (Tex.Crim.App.1991).

                                   ARGUMENT

      The Court of Appeals erroneously held that, based on a totality of the

circumstances, sufficient probable cause for a warrantless arrest of Appellant

existed when it did not, such that review is warranted pursuant to Tex. R. App. P.

66.3(a) and Tex. R. App. P. 66.3(c). Specifically, the Court of Appeals found the

following as probable cause for arrest:

      “The sum of the information known to Officer Sutton and Officer Ball
      at the time Sutton handcuffed Malone, however, includes that (1)
      Officer Ball had smelled marijuana on Malone and the driver an hour
      before the traffic stop when both men were eating at Red Lobster; (2)
      the license plate number of the men seen at the restaurant matched that
      of the car Officer Sutton stopped; (3) the driver of the car had marijuana
      shake on his shoulder; and (4) the car smelled of cologne when Officer
      Sutton made the traffic stop.” (Malone Opinion at 11).

      In this case, Appellant was the passenger in the vehicle and, after being

removed from the vehicle, was handcuffed within twenty-five (25) seconds of the

stop. (2RR-32). Officer Sutton stated that the vehicle pulled over right away without

any attempt to be evasive. (2RR-26). The vehicle was pulled over early in the night

and not in an area that’s classified as a “high crime.” (2RR-26). Officer Sutton made



                                          2
no attempt to run Appellant’s criminal history or run his driver’s license to find out

the type of individual he was dealing with. (2RR-32). Most importantly, no evidence

of criminal activity with respect to Appellant was cited anywhere in the record.

Based on these facts, the detention of Appellant was sufficient to justify, not an

arrest, but rather the lesser intrusion of an investigative detention under Terry v.

Ohio, 392 U.S. 1, 88 S.Ct.1868, 20 L.Ed.2d 889 (1968).

      An arrest, must be based upon “probable cause.” Amores v. State, 816 S.W.2d

407, 411 (Tex.Crim.App.1991). In Texas, the "totality of the circumstances" test

applies for determining probable cause for a warrantless search and seizure. Id at

413. A peace officer may arrest an offender without a warrant for any offense

committed in his presence or within his view. Tex. Code Crim. Proc. Art. 14.01(b).

Id at 414. Neither a police broadcast nor an anonymous phone call is sufficient,

standing alone, to establish probable cause for an arrest. Id at 416. A person's mere

proximity or propinquity to others independently suspected of criminal activity does

not, without more, give rise to probable cause. Leday v. State, 3 S.W.3d 667, 672

(Tex. App.—Beaumont 1999, pet. ref’d); see also Ybarra v. Illinois, 444 U.S. 85, 91

(1979).

      The Court of Appeals decision, in finding that probable cause for a warrantless

arrest, was erroneous as the factors used for a “totality of the circumstances” were



                                          3
too broadly applied, in conflict with Amores v. State and cases from intermediate

appellate courts that follow a closer fact pattern to the case at hand. In Amores, a

police officer responded to a "burglary in progress" call from an apartment complex

indicating a black male was loading a box into a car. Amores, 816 S.W.2d at 410.

This Court held that there was no available fact or circumstance to support probable

cause and the warrantless arrest was not authorized under Chapter Fourteen of the

Code of Criminal Procedure. Id. at 416-417.

      The Court of Appeals opinion, combines numerous distinguishable cases,

unlike Amores and this case, for the purpose of making a probable cause evaluation

based on a totality of the circumstances. (Malone Opinion 9-11). As an example, the

court cited Pyles v. State; 755 S.W2d 98 (Tex. Crim. App. 1988), Nuttal v. State, 87

S.W.3d 219 (Tex. App.—Amarillo 2002, no pet.) and Estrada v. State, 154 S.W.3d

604 (Tex.Crim.App. 2005).

      In Pyles v. State, the Court of Criminal Appeals found that probable cause

existed for arrest based on information from another officer after a deputy had been

shot and killed. 755 S.W2d 98, 109 (Tex. Crim. App. 1988). In Nuttal v. State,

appellant was "extremely nervous," and evasively answered the officer's questions,

two of seven factors that weighed into the court’s decision. 87 S.W.3d 219, 222. In

Estrada v. State, after responding to a disturbance call, the arresting officer smelled



                                          4
the odor of marijuana and that was a found to be a factor weighing in favor of

officer’s belief that a crime was being committed for probable cause to search. 154

S.W.3d 604, 606, 609.

      This particular case however stands out from the cases cited by the Court of

Appeals and is analogous and factually aligned with State v. Crisp, 74 S.W.3d 474,

483 (Tex. App. Waco 2002), Leday v. State, 3 S.W.3d 667, 672 (Tex. App.—

Beaumont 1999), and State v. Moore, 25 S.W.3d 383, 386 (Tex.App.-Austin 2000,

no pet.). In Crisp, the appellate court affirmed the trial courts motion to suppress

evidence where officers stopped a vehicle, did not briefly question the defendant’s

respecting their identities and handcuffed them immediately; finding that their

arrests were illegal as there was no probable cause for arrest. Crisp 74 S.W.3d 474

at 483. In Leday, actual circumstances relating to suspicious behavior existed that

do not exist in this case; the court still found that appellant’s behavior did not rise

above the level of mere suspicion, and under a totality of the circumstances the

deputy did not have probable cause to justify a warrantless arrest of appellant. 3

S.W.3d 667, 672. In Moore, the Austin Court of Appeals affirmed the lower court’s

ruling that the handcuffing of Moore transformed the detention into an arrest for

which there was not probable cause. 25 S.W.3d 383 at 387.




                                          5
      Here, Appellant is handcuffed with less reasonable suspicion than articulated

in Crisp, Leday and Moore. Appellant was simply a passenger in the car, and Officer

Sutton had no time to observe any suspicious behavior prior to handcuffing the

Appellant. Furthermore, Officer Sutton never testified about smelling marijuana

emitting from the vehicle and neither from the driver or Appellant. That information

came from Officer Ball an hour prior to the traffic stop. In addition to that, there is

nothing in the record linking Appellant to any criminal activity in front of Officer

Sutton to warrant an arrest pursuant to Article 14.01(b), V.A.C.C.P.

      Most importantly, all factors addressed by the Court of Appeals for a totality

of the circumstances argument were directly connected to the driver of the vehicle,

who was arrested and released, rather than Appellant. Sutton’s testimony that “he

could possibly be trying to destroy evidence…so I detained him to prevent further

destruction of evidence,” was with respect to the driver not Appellant. (2RR-12).

The marijuana shake apparently observed by Sutton was on the driver of the vehicle,

not Appellant, (2RR-12) and lastly, the cologne smell came from the direction of the

driver when Sutton walked up to the vehicle, not Appellant, (2RR-17).

      Accordingly, the Court of Appeals opinion extends beyond the interpretation

of totality of the circumstances pursuant to this Court’s decision in Amores v. State

and the decisions in Crisp, Leday and Moore from other Appellate Courts. Thus,



                                          6
review should be granted to consider whether the Court of Appeals opinion is in

conflict pursuant to Tex. R. App. P. 66.3(a) and Tex. R. App. P. 66.3(c).

               APPELLANT’S SECOND GROUND FOR REVIEW

      The Court of Appeals erred in holding that Appellant’s
      incriminating statement after he was in custody was voluntarily
      made rather than the result of a custodial interrogation triggering
      Appellant’s Miranda rights.
                                   ARGUMENT

      The Court of Appeals erroneously held that Appellant’s incriminating

statement was made voluntarily made after his arrest, such that review is warranted

pursuant to Tex. R. App. P. 66.3(c) as the opinion conflicts with applicable decisions

of the Court of Appeals and the Supreme Court of the United States.

      Because Appellant had not been read his Miranda rights, appellant argues that

the incriminating statement made by him was inadmissible. See Miranda v. Arizona,

384 U.S. 436, 444, 16 L. Ed. 2d 694, 86 S. Ct. 1602 (1966) (holding that, before

questioning, person in police custody must be warned that he has right to remain

silent, that any statement he makes may be used as evidence against him, and that

he has right to presence of retained or appointed attorney). The Court of Appeals

opinion addresses this issue pursuant to the seminal Supreme Court case of Rhode

Island v. Innis, 466 U.S. 291, 100 S. Ct. 1682 (1980) and Ramirez v. State, 105




                                          7
S.W.3d 730 (Tex. App.-Austin 2003, no pet.), one of the cases relied on by Appellant

as well.

      The Supreme Court established that custodial interrogation means

"questioning initiated by law enforcement officers after a person has been taken into

custody or otherwise deprived of his freedom of in any significant way." Miranda,

384 U.S. at 444; see also Rhode Island v. Innis, 446 U.S. 291 at 298. The Supreme

Court clearly distinguishes between a voluntary statement and those made in

response to interrogation. Innis, 446 U.S. at 299-300. "Interrogation," for Miranda

purposes, refers both to express questioning and to any words or actions by the

police--other than those normally attendant to arrest and custody--that police "should

know are reasonably likely to elicit an incriminating response." Id. at 301. The

likelihood of eliciting a response focuses on the perception of the suspect, not the

intent of the police. Id. at 301. The Court in Innis noted that any practice the police

should know is "reasonably likely to evoke an incriminating response from a

suspect" constitutes interrogation. Id.

      This Court has previously addressed this issue and Appellant has also relied

on State v. Ortiz, 382 S.W.3d 367 (Tex. Crim. App. 2012), where a motion to

suppress was granted after Ortiz was found to be in custody for Miranda purposes

when incriminating statements were elicited. The Ortiz opinion is factually and



                                          8
legally analogous to this case and is completely overlooked by The Court of Appeals.

The objective facts in Ortiz showed that the following: (1) the officer had expressed

his suspicion to the appellee "point blank" that he had drugs in his possession; (2)

two additional law enforcement officers had arrived on the scene; (3) Mrs. Ortiz and

the appellee had both been patted down and handcuffed; and (4) the officers had

manifested their belief to the appellee that he was connected to some sort of (albeit,

as-yet undisclosed) illegal or dangerous activity on Mrs. Ortiz's part. Id at 373. Based

on the factors above and prior to Ortiz making an incriminating statement, this Court

found that his liberty was compromised to a degree associated with formal arrest and

Miranda rights were triggered. Id. Likewise in Ramirez, the Austin Court of Appeals

held that appellant was interrogated within the meaning of Miranda and should have

provided Miranda warnings prior to such interrogation. Ramirez, 105 S.W.3d 730 at

741.

       Like in Ortiz and Ramirez, the objective facts here show that Appellant was

in custody, triggering his Miranda rights prior to the incriminating response

provided to questioning by Officer Sutton. In fact, by the time Appellant provides

the incriminating response the following circumstances had occurred: (1) Both

Appellant and driver were handcuffed immediately upon the stop of the vehicle, (2)

Officer Sutton had expressed his suspicion to the Appellant “point blank” that either



                                           9
he or the driver had drugs in their possession or connected to narcotics in some way,

(3) an additional law enforcement officer had arrived on the scene, (4) the driver was

questioned about marijuana or other drugs in front of Appellant and then placed in

the back of a patrol vehicle, and (5) Officer Sutton testified Appellant was not free

to leave. (1RR-42).

      Most importantly, Officer Sutton could reasonably foresee that his question

would elicit an incriminating response when he asked Appellant, “You are not going

to BS me like your buddy…You’re going to be honest with me about what’s going

on here,” to which Appellant gave the following incriminating response of, “I’m

going to be honest with you. I have a sweet in my pocket.” (2RR-49).

      Accordingly, the Court of Appeals opinion is in conflicts with this Court’s

opinion in State v. Ortiz and the United States Supreme Court’s decision in Miranda

v. Arizona. Thus, review should be granted to consider whether the Court of Appeals

opinion is in conflict pursuant to Tex. R. App. P. 66.3(c).




                                         10
                             PRAYER FOR RELIEF

      WHEREFORE, PREMISES CONSIDERED, Appellant prays that this

Honorable Court grant this Petition for Discretionary Review. Following the grant

of review, Appellant prays that the judgment of the Court of Appeals be reversed

and the judgment be vacated, a new trial ordered, or the case remanded for further

review.

                                     Respectfully submitted,


                                     /s/Gary Tabakman
                                     GARY TABAKMAN
                                     TBA No. 24076065
                                     JPMorgan Chase Bank Building
                                     712 Main Street, 31st Floor
                                     Houston, Texas 77002
                                     Telephone: (713) 228-8500
                                     Facsimile: (713) 228-0034

                                     Counsel for Appellant,
                                     ALPHONSON MALONE




                                       11
                        CERTIFICATE OF COMPLIANCE

      Pursuant to Rule 9 of the Texas Rules Appellate Procedure, the undersigned

counsel of record certifies that the Petition for Discretionary Review contains 2097

words.

                                                   /s/Gary Tabakman
                                                   GARY TABAKMAN


                            CERTIFICATE OF SERVICE

      I hereby certify that a true and correct copy of the above and foregoing

Appellant’s Petition For Discretionary Review was served via e-mail delivery

through eFile.TXCourts.gov to Lisa McMinn, Assistant District Attorney, Harris

County District Attorney’s Office, 1201 Franklin, Appellant Division, on the 19th

day of October, 2015.

                                             /s/Gary Tabakman
                                             GARY TABAKMAN




                                        12
                    APPENDIX

First Court of Appeals’ Opinion of April 23, 2015.




                       A-1
Opinion issued April 23, 2015




                                     In The

                              Court of Appeals
                                    For The

                          First District of Texas
                            ————————————
                              NO. 01-14-00054-CR
                           ———————————
                ALPHONSON DAMON MALONE, Appellant
                                       V.
                      THE STATE OF TEXAS, Appellee


          On Appeal from the County Criminal Court at Law No. 8
                          Harris County, Texas
                      Trial Court Cause No. 1899612




               MEMORANDUM OPINION ON REHEARING

      Alphonson Damon Malone pled guilty of the offense of possession of

marijuana of a quantity between zero and two ounces, and the trial court sentenced

him to two days’ confinement. Malone moved to suppress both his inculpatory
statement to an officer and the marijuana found on his person. After a hearing, the

trial court denied the motion to suppress. On appeal, Malone contends that he

made his statement in response to a custodial interrogation that occurred before he

received Miranda warnings. He further contends that no probable cause existed

for his arrest, which occurred before he confessed to possessing marijuana. After a

panel of our court issued its opinion in this case, Malone moved for rehearing. The

panel denies the motion for rehearing, withdraws its opinion and judgment, and

issues this opinion and judgment in its stead. We conclude that the evidence

adduced at the motion to suppress hearing supports the trial court’s ruling; we

therefore affirm.

                                  Background

      In June 2013, Officer T. Sutton of the Humble Police Department received a

phone call from Officer N. Ball, who reported that he had observed two customers

who smelled like marijuana while he was working an extra job at a Red Lobster

Restaurant. As the customers were leaving the restaurant, Ball notified Sutton of

his suspicion, and he provided the customers’ description and a license plate

number.    En route, Officer Sutton passed the car matching Officer Ball’s

description. The driver did not lower his high beam lights as he passed in front of

Officer Sutton’s car, which is a violation of the Texas Transportation Code Section




                                        2
547.305. See TEX. TRANSP. CODE ANN. § 547.305 (West 2014). Officer Sutton

stopped the car to investigate.

      As Officer Sutton approached the vehicle, he noticed “marijuana shake,” or

residue, on the driver’s left shoulder. He also smelled cologne. He asked the

driver to exit and then detained the driver with handcuffs. Sutton also asked the

passenger, Malone, to exit the vehicle and handcuffed him.

      After about one minute, another officer arrived. Officer Sutton directed him

to detain the driver in the back of his police car. Sutton asked the driver whether

he had marijuana on his person or in his car; the driver responded that he did not.

After about 10 minutes Sutton approached Malone, stating: “You’re not going to

BS me like your buddy . . . You’re going to be honest with me about what’s going

on here.” Malone responded: “I’m going to be honest with you. I have a sweet in

my pocket.” Officer Sutton knew through his training and experience that Malone

was describing a sweet containing marijuana. Sutton reached into Malone’s pocket

and retrieved a sweet containing over one gram of marijuana. Both Malone and

the driver were compliant with Sutton’s requests, both at the time of the traffic stop

and during the detention.

      Course of Proceedings

      Malone moved to suppress the marijuana found in his pocket and the

statement he made after being apprehended. After a hearing, the trial court denied



                                          3
Malone’s motion to suppress. In its findings, the trial court determined that Officer

Sutton was a credible witness. In its conclusions of law, the trial court ruled that

Malone was under arrest when Officer approached him, but that Malone’s response

was not the product of a custodial interrogation.

                                    Discussion

Statement Made in the Absence of Miranda Warnings

      Standard of Review

      An appellate court conducts a bifurcated review to a trial court’s findings

regarding a motion to suppress, deferring to the trial judge’s rulings on questions

of historical fact. Alford v. State, 358 S.W.3d 647, 652 (Tex. Crim. App. 2012).

We similarly defer to the trial court’s determinations of mixed questions of law and

fact that turn on demeanor and credibility. State v. Saenz, 411 S.W.3d 488, 494

(Tex. Crim. App. 2013) (citing State v. Ortiz, 382 S.W.3d 367, 372 (Tex. Crim.

App. 2012)). In contrast, we review de novo mixed questions of law and fact that

do not turn on demeanor and credibility. Id. Particular to the facts presented here,

“[t]he decision as to whether custodial questioning constitutes ‘interrogation’ under

Miranda is a mixed question of law and fact, and we defer to the trial court’s fact

findings that turn on an evaluation of credibility and demeanor.” Alford, 358

S.W.3d at 653 (citing Ripkowski v. State, 61 S.W.3d 378, 381–82 (Tex. Crim. App.

2001)).



                                          4
      Analysis

      Malone first contends that the trial court abused its discretion when it denied

the motion to suppress his statement because Officer Sutton had not warned

Malone of his Miranda rights. Both Miranda v. Arizona and state law prohibit the

State from introducing a defendant’s statements made during a custodial

interrogation, unless the State demonstrates that, before making the statement, the

police had informed the defendant of certain constitutional rights. 384 U.S. 436,

444, 86 S. Ct. 1602, 1612 (1966); see also TEX. CODE CRIM. PROC. ANN. art. 38.22

§§ 2, 3 (West 2014). The Supreme Court has defined a “custodial interrogation” as

“questioning initiated by law enforcement officers after a person has been taken

into custody or otherwise deprived of his freedom of action in any significant

way.” Miranda, 384 U.S. at 444, 86 S. Ct. at 1612.

      But if a defendant volunteers a statement, then it is not subject to

suppression for lack of Miranda warnings. Warren v. State, 377 S.W.3d 9, 17

(Tex. App.—Houston [1st Dist.] 2011, pet. ref’d). The Fifth Amendment does not

bar “[v]olunteered statements of any kind.” Miranda, 384 U.S. at 478, 86 S. Ct. at

1630. Article 38.22 similarly does not preclude the admission of statements made

by the defendant that do not stem from an interrogation. TEX. CODE CRIM. PROC.

ANN. art. 38.22 § 5 (West 2014) (“Nothing in this article precludes the admission




                                         5
of . . . a voluntary statement . . . whether or not the result of custodial interrogation

. . . .”).

         Because Malone was detained and handcuffed during the investigation

without any other circumstances warranting a restriction on Malone’s movement,

the record supports the trial court’s determination that Malone was in custody.

Thus, this case turns on whether Officer Sutton’s statement to Malone rose to the

level of an interrogation, or whether Malone’s statement was made voluntarily.

         To be an interrogation, a statement or question must demonstrate “a measure

of compulsion above and beyond that inherent in custody itself.” Rhode Island v.

Innis, 446 U.S. 291, 300, 100 S. Ct. 1682, 1689 (1980). An interrogation includes

“any words or actions on the part of the police (other than those normally attendant

to arrest and custody) that the police should know are reasonably likely to elicit an

incriminating response from the suspect.” Id. at 301.

         In Innis, the Supreme Court held that police officers had not interrogated a

suspect when officers had a conversation in the range of the suspect’s hearing but

did not ask the suspect a question. Id. at 294–95, 302. In that case, officers

discussed a missing shotgun while transporting the defendant, noting a concern

that children were present in the area and could discover the weapon. Id. at 294–

95. The suspect interrupted the officers’ conversation with a statement. Id. at 295.

After receiving Miranda warnings, he led them to the hidden weapon. Id. The



                                           6
Supreme Court found that the officers’ conversation was not an interrogation. Id.

at 302.

      In contrast, the Texas Court of Criminal Appeals in Janecka found that a

police detective’s response to a suspect’s question constituted interrogation or its

equivalent. Janecka v. State, 739 S.W.2d 813, 829 (Tex. Crim. App. 1987) (per

curiam). There, the detective informed the suspect of the damaging evidence

against him, and then told the suspect that he should “tell the truth.” Id. at 826,

829. Similarly, in Ramirez, the Austin Court of Appeals found that an officer’s

statements to a suspect were the functional equivalent of interrogation, where the

officer informed the suspect that marijuana paraphernalia and residue were present

in the suspect’s garage, and then asked whether more could be found. Ramirez v.

State, 105 S.W.3d 730, 740–41 (Tex. App.—Austin 2003, no pet). The court of

appeals held that the officer should have known that his questioning would

encourage an incriminating response. Id. at 741 (citing Innis, 446 U.S. at 301, 100

S. Ct. 1682). Malone relies on the latter cases to contend that Sutton should have

known that his words or actions were reasonably likely to elicit an incriminating

response.

      We hold that the record supports the trial court’s finding that the statement

was not reasonably likely to move Malone to make a self-incriminating statement.

Officer Sutton’s statement was not a “lengthy harangue,” and the record does not



                                         7
suggest that Sutton was aware of any particular susceptibility that Malone had to

the officer’s appeal to his conscience. See Innis, 446 U.S. at 302–03, 100 S. Ct. at

1690–91. In its findings of fact, the trial court described Malone’s statement as

“spontaneously” made. Officer Sutton had not informed Malone of any damaging

evidence against him, nor had he asked Malone any questions. See Janecka, 739

S.W.2d at 826; Ramirez, 105 S.W.3d at 741.

      Officer Sutton testified that his statement to Malone was not threatening.

The trial judge found that Officer Sutton was a credible witness, and we defer to

the trial court’s findings that turn on credibility. Alford, 358 S.W.3d at 652–53.

We hold that the record supports a determination that Malone’s statement was

voluntarily made and not the result of a police interrogation. See id.; see also TEX.

CODE CRIM. PROC. ANN. art. 38.22 § 5; Innis, 446 U.S. at 300, 100 S. Ct. at 1689

(“[T]he special procedural safeguards outlined in Miranda are required not where a

suspect is simply taken into custody, but rather where a suspect in custody is

subjected to interrogation.”).

Probable Cause

      Next, Malone argues that there was no probable cause to arrest him. The

Fourth Amendment prohibits unreasonable searches and seizures by government

officials. Wiede v. State, 214 S.W.3d 17, 24 (Tex. Crim. App. 2007). An officer

may arrest a suspect without a warrant if he has a reasonable belief that the



                                         8
individual has committed an offense. TEX. CODE CRIM. PROC. ANN. art. 14.01

(West 2013); Torres v. State, 182 S.W.3d 899, 901–02 (Tex. Crim. App. 2005).

The test for probable cause is whether “at that moment [of the arrest] the facts and

circumstances within the officer’s knowledge and of which he had reasonably

trustworthy information were sufficient to warrant a prudent man in believing that

the arrested person had committed or was committing an offense.” Parker v. State,

206 S.W.3d 593, 596 (Tex. Crim. App. 2006) (quoting State v. Steelman, 93

S.W.3d 102, 107 (Tex. Crim. App. 2002)).         We consider the totality of the

circumstances in determining whether probable cause existed for a warrantless

arrest. Amador v. State, 275 S.W.3d 872, 878 (Tex. Crim. App. 2009). “It is well

established that an officer who does not himself possess probable cause for making

a warrantless arrest may act upon the basis of information relayed to him by

another officer requesting that an arrest be made.” Pyles v. State, 755 S.W.2d 98,

109 (Tex. Crim. App. 1988) (quoting Tarpley v. State, 565 S.W.2d 525, 529 (Tex.

Crim. App. [Panel Op.] 1978)). When members of the same law enforcement

agency have cooperated, the sum of information known to cooperating officers at

the time of an arrest should be considered in determining whether there was

probable cause. Id. (citing Woodward v. State, 668 S.W.2d 337, 344 (Tex. Crim.

App. 1982)). The “odor of an illegal substance” may be a factor that police

officers use in determining whether there is probable cause that an offense has



                                         9
been or is being committed.” Estrada v. State, 154 S.W.3d 604, 606, 609 (Tex.

Crim. App. 2005) (holding that smell of marijuana on appellant, who was standing

in her driveway, was factor weighing in favor of officer’s belief that crime had

been or was being committed).

      Probable cause to search exists where known facts and circumstances are

sufficient to warrant a person of reasonable prudence that evidence of a crime will

be found. Wiede, 214 S.W.3d at 24; Estrada, 154 S.W.3d at 609. “Known facts

and circumstances include those personally known to law enforcement officers or

those derived from a ‘reasonably trustworthy’ source.” Wiede, 214 S.W.3d at 24.

An officer may conduct a search without a warrant when an individual admits to

possessing contraband. See Sandoval v. State, 860 S.W.2d 255, 259–60 (Tex.

App.—Houston [1st Dist.] 1993, pet. ref’d) (“[T]he officer’s search of appellant’s

truck and seizure of the evidence inside was justified, following their detection of

the marijuana odor, and appellant’s admission that the truck contained

marijuana.”); Nuttall v. State, 87 S.W.3d 219, 223 (Tex. App.—Amarillo 2002, no

pet.) (holding that officer had probable cause to search defendant’s pocket when

defendant admitted he had drugs on his person).

      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.



                                        10
TEX. CODE CRIM. PROC. ANN. art. 38.23(a) (West 2014).

      Malone contends that Officer Sutton did not have probable cause to arrest

him before he made the statement admitting that he possessed marijuana. The sum

of the information known to Officer Sutton and Officer Ball at the time Sutton

handcuffed Malone, however, includes that (1) Officer Ball had smelled marijuana

on Malone and the driver an hour before the traffic stop when both men were

eating at Red Lobster; (2) the license plate number of the men seen at the

restaurant matched that of the car Officer Sutton stopped; (3) the driver of the car

had marijuana shake on his shoulder; and (4) the car smelled of cologne when

Officer Sutton made the traffic stop. See Pyles, 755 S.W.2d at 109. Officer Sutton

testified at the hearing that he believed that the driver and Malone may have been

attempting to destroy evidence, due to the marijuana shake and cologne smell, and

the trial court found that Officer Sutton was a credible witness. See Alford, 358

S.W.3d at 652. In light of the totality of the circumstances, we hold that Officer

Sutton had probable cause to arrest Malone. See Amador, 275 S.W.3d at 878;

Parker, 206 S.W.3d at 596; Estrada, 154 S.W.3d at 606, 609.

      Malone further contends that Officer Sutton did not have probable cause to

search him. We have determined that the record supports the trial court’s finding

that Malone’s self-incriminating statement was voluntary and not a product of a

custodial interrogation. Because Malone voluntarily stated that he had a sweet in



                                        11
his pocket, Officer Sutton had probable cause to search Malone. See Wiede, 214

S.W.3d at 24; Nuttall, 87 S.W.3d at 223; Sandoval, 860 S.W.2d at 259–60. We

hold that the marijuana found on his person was not obtained in violation of the

United States or Texas Constitutions. See TEX. CODE CRIM. PROC. ANN. art.

38.23(a).

                                   Conclusion

      We hold that the trial court acted within its discretion in denying Malone’s

motion to suppress his statement to Officer Sutton and the marijuana found on his

person. We therefore affirm the judgment of the trial court. The motion for

rehearing is denied.




                                               Jane Bland
                                               Justice

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

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




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