                                    NO. 07-02-0159-CR

                               IN THE COURT OF APPEALS

                       FOR THE SEVENTH DISTRICT OF TEXAS

                                       AT AMARILLO

                                          PANEL A

                                     JANUARY 30, 2004

                           ______________________________


                          KELLEY D. COURTNEY, APPELLANT

                                              V.

                           THE STATE OF TEXAS, APPELLEE

                         _________________________________

              FROM THE 208TH DISTRICT COURT OF HARRIS COUNTY;

                 NO. 875704; HONORABLE DENISE COLLINS, JUDGE

                          _______________________________

Before JOHNSON, C.J., and REAVIS and CAMPBELL, JJ.


                                          OPINION


       Appellant Kelley D. Courtney was convicted of felony murder following a jury trial.

The jury assessed punishment at 25 years in the Texas Department of Criminal Justice

Institutional Division. In three points of error she (1) challenges the trial court’s overruling

in part her motion to suppress an oral confession; (2) challenges the trial court’s denial of

her motion for mistrial based on a reference to a polygraph administered to her; and (3)

alleges ineffective assistance of trial counsel. We affirm.
       On January 8, 2001, Roland Clemons, Jr., a three-year-old boy, was left by his

father in appellant’s care. The child’s father and appellant had been living together for about

one-and-a-half years. While in the care of appellant, the child stopped breathing. Appellant

contacted the boy’s father by phone, and drove the child to a local hospital. The child was

transferred to Texas Children’s Hospital and died four days later.


       Initial autopsy results were inconclusive as to the cause of death. The medical

examiner requested police investigate the death further and obtain a polygraph of

appellant. On April 26, 2001, two police officers arrived at appellant’s home and asked her

to accompany them to the Houston Homicide Office to be re-interviewed regarding the

child’s death. Appellant agreed to go with the officers. They arrived at the police station at

approximately 9:20 a.m. As was customary, appellant was signed in as a visitor. Officer

Donald Ferguson talked with appellant for approximately thirty minutes then took her to

another floor of the building to be interviewed by Officer Joanne Valverde.


       Appellant spent several hours with Officer Valverde. During the course of the

interview, Valverde conducted a polygraph examination of appellant. Before being

subjected to the test, appellant signed a consent form containing statements that appellant

voluntarily consented to the exam of her own free will and that she was not under duress

or coercion. Appellant later testified that she understood the consent form, and that she

could stop the test at any time. The form did not contain Miranda warnings.




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      Valverde’s later testimony1 concerning her actions after the completion of appellant’s

polygraph exam was as follows:


      Q:     After administering the exam, what did you do?
      A.     After I finished the exam and reviewed it and came to my results, I contacted
             the investigator [Ferguson]. Then I went and told her [appellant] how she did
             on her test.
      Q.     Those were relevant questions that you asked her?
      A.     Yes.
      Q.     What were the relevant questions?
      A:     Do you know for sure who caused the death of little Roland? Did you
             cause the death of little Roland? Did you do anything to little Roland
             to keep him from breathing? Did you tell me the truth today when you
             said that when you checked on little Roland he had wet his pants and
             was in a puddle of urine?
      Q:     After you talked with the investigator, did you go back and have any
             further conversation with her?
      A:     Yes, sir, I did.
      Q:     What did you talk about?
      A:     I went and told her, I explained to her – I remember I told her that
             when I finished the test that I would know without a doubt whether she
             was telling me the truth or not. I told her, I explained to her that I
             knew she was not telling the truth. I knew that she had caused little
             Roland’s death.
      Q:     Did she respond to you in any way?
      A:     She dropped her head and she started crying. Then she said she was
             sorry. She said she just lost it and hit him.
             I proceeded to hug her and she hugged me. Let me look at my
             notes here. She said she was sorry. She didn’t mean to kill
             him. She said that she put the pillow on his face. He had told
             her she was not his mother and he didn’t have to listen to her
             and screamed at her and called her a black bitch.



      1
      The testimony is from the hearing on appellant’s motion to suppress pursuant to
Jackson v. Denno, 378 U.S. 368, 84 S. Ct. 1774, 12 L. Ed. 2d 908 (1964).

                                            3
              She said she put the pillow on his face and she said she just
              snapped. She said when she put the pillow on his face that it
              was to shut him up. He stopped struggling at one point and
              just laid limp.


       After this conversation, Valverde called Ferguson into the room and had appellant

repeat her confession to him. Ferguson then talked by telephone with an assistant district

attorney, and arranged for appellant to make a video-taped statement. No Miranda

warnings were given to appellant at any time during her questioning at the police station.

The medical examiner ruled the death a homicide.


       Appellant’s first issue contends the trial court erred in overruling, in part, her pretrial

motion to suppress the statements taken from appellant. After a hearing on the motion, at

which appellant and Officers Ferguson and Valverde testified, the trial court granted the

motion insofar as appellant’s video-taped statement was concerned, but otherwise

overruled it. Officer Valverde testified at trial to the oral statements appellant made to her

after the polygraph exam. Appellant here argues that the court should have suppressed

those statements because appellant was not given the warnings required under Code of

Criminal Procedure article 38.22, section 3(a)(2).2




       2
        Article 38.22, section 3(2) requires, in part, that no oral statement of an accused
made as a result of custodial interrogation shall be admissible against the accused in a
criminal proceeding unless statutory warnings are given to the accused prior to the making
of the oral statement. The accused also must knowingly, intelligently and voluntarily waive
the rights set forth in the warnings. Tex. Code Crim. Proc. Ann. art. 38.22, § 3(a)(2)
(Vernon Supp. 2004).

                                                4
       It is undisputed that the warnings were not given, but the State contends they were

not required because appellant’s statements were not the result of custodial interrogation.

See Tex. Code Crim. Proc. Ann. art. 38.22, § 3(a) (Vernon Supp. 2004); Stansbury v.

California, 511 U.S. 318, 322, 114 S. Ct. 1526, 1528, 128 L. Ed. 2d 293, 298 (1994) (per

curiam) (obligation to administer Miranda warnings attaches “only where there has been

such a restriction on a person’s freedom as to render him ‘in custody’”); Oregon v.

Mathiason, 429 U.S. 492, 495, 97 S. Ct. 711, 714, 50 L. Ed. 2d 714, 719 (1977) (per

curiam); Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).


       Appellant cogently points out that the trial court necessarily concluded that the

officers’ questioning of appellant became custodial at some time before they took her video-

taped statement, which the trial court suppressed. She argues that she was in custody for

article 38.22 purposes before that time, either from the time she was taken to the police

station to make a statement or, in the alternative, when she made her first incriminating

statement to Valverde, that being the admission that she hit the child.


       The State contends that appellant was not in custody at the time the statements

were made, and the trial court did not therefore abuse its discretion in denying appellant’s

motion to suppress those statements.


       The disposition of appellant’s first issue thus turns on the determination whether

appellant was in custody at the time she made the incriminating statements to Officer

Valverde. A person is considered to be in custody for this purpose when, under the

circumstances, a reasonable person would believe that his freedom of movement was


                                             5
restrained to the degree associated with a formal arrest. Dowthitt v. State, 931 S.W.2d 244,

254 (Tex.Crim.App. 1996), citing Stansbury, 511 U.S. at 322. Resolving the issue, we view

the evidence in the light most favorable to the trial court’s ruling, reviewing the ruling for an

abuse of discretion. Guzman v. State, 955 S.W.2d 85, 89 (Tex.Crim.App. 1997); Villarreal

v. State, 935 S.W.2d 134, 138 (Tex.Crim.App. 1996); see Willover v. State, 70 S.W.3d 841,

845 (Tex.Crim.App. 2002). Too, we review the trial court’s ruling in light of what was before

the trial court at the time the ruling was made. Willover, 70 S.W.3d at 845; Weatherred v.

State, 15 S.W.3d 540, 542 (Tex.Crim.App. 2000); Hoyos v. State, 982 S.W.2d 419, 422

(Tex.Crim.App. 1998). At a suppression hearing, the trial court is the sole and exclusive

trier of fact and judge of the credibility of witnesses and the weight to be given their

testimony. See State v. Ross, 32 S.W.3d 853, 855 (Tex.Crim.App. 2000).


       Appellant, who was nineteen at the time of the suppression hearing, emphasizes

that officers arrived at her apartment before 9:00 a.m.; that they knew she was preparing

to go to work, but nonetheless told her she needed to accompany them to the Houston

Homicide Office to be re-interviewed about the child’s death; that, despite her inquiry, she

was not told she could reschedule the interview and go on to work, nor was she given any

idea how long her interview would last; and that she was taken in the officers’ vehicle to the

police station, where she was signed in. Appellant argues that a reasonable person would

believe that she was not free to leave under those circumstances, and that all of the

statements she made at the police station were the result of custodial interrogation.




                                               6
       Considering, as we must, all the objective circumstances surrounding appellant’s

questioning, Dowthitt, 931 S.W.2d at 255, and viewing the evidence in the light most

favorable to the trial court’s ruling, we cannot agree that appellant was in custody for article

38.22 purposes from the time she was taken to the police station. Officer Ferguson testified

he told appellant she did not have to go with the officers to the station if she did not want

to do so, and that doing so was voluntary on her part. Bates v. State, 15 S.W.3d 155, 160

(Tex.App.–Texarkana 2000, pet. ref’d); see Shiflet v. State, 732 S.W.2d 622, 628

(Tex.Crim.App. 1985). No physical restraints were placed on appellant, nor does she

contend that there was then any manifestation of probable cause to arrest her. See

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


       The testimony differs as to how long appellant spent with Officer Valverde, but it

appears that appellant had been with Valverde three to four hours when she made the

incriminating statements after the polygraph exam. Valverde testified that she devoted the

first “hour or two” of her interview of appellant to a lengthy discussion about appellant’s

work and personal life, part of her effort to make appellant feel comfortable before the

polygraph exam. Valverde accompanied appellant to the bathroom once to show her where

it was located, and perhaps one other time when she also used the bathroom, but appellant

also made several unaccompanied trips to the bathroom.               Case law is clear that

questioning is not custodial simply because it occurs at the police station, see Dowthitt, 931

S.W.2d at 255, and we conclude that the circumstances of appellant’s questioning were not

such as to lead a reasonable person to believe that she was thereby restrained to the

extent associated with formal arrest.


                                               7
       Nor did the trial court abuse its discretion in failing to conclude that appellant’s

interrogation became custodial at the point of Valverde’s statement to appellant that she

knew from the results of appellant’s polygraph that appellant was not telling the truth and

knew that appellant had caused the child’s death. Interrogation is not custodial simply

because it follows a failure to pass a police-administered polygraph examination, even

when the failure is reported to the suspect. See Stone v. State, 583 S.W.2d 410, 412-13

(Tex.Crim.App. 1979). In its context, Valverde’s statement to appellant amounted to a

report that appellant had failed the polygraph examination. The “relevant questions”

Valverde reviewed with appellant before the polygraph examination, and then asked her

during the exam, included the question “Did you cause the death of little Roland?” Valverde

testified appellant would have been free to leave even after she had failed the examination

and, in response to a question from the trial court, testified she had made it clear to

appellant that she was not under arrest. Appellant testified that she asked several times

to go home, but her testimony was disputed by the officers.


       Appellant finally argues that it was appellant’s initial incriminating response to

Valverde that marks the point at which her interrogation became custodial. Comparing

appellant’s response that she was sorry and that she “just lost it and hit him” to the

admission by the defendant in Dowthitt that he was present during the crime, 931 S.W.2d

at 256-57, appellant argues that officers then had probable cause to arrest her and she

clearly became the focus of the investigation. Interrogation beyond that point, appellant

contends, was custodial, and the resulting statements inadmissible.




                                            8
       As appellant’s brief on appeal recognizes, though, it is not clear from Valverde’s

testimony at the hearing on the motion to suppress that appellant’s confession to placing

the pillow over the child’s face was the result of further questioning. Officer Valverde’s

narrative answer to the prosecutor’s question “Did she respond to you in any way?” does

not reflect any further interrogation by Valverde. In support of her argument, appellant

would have us consider also Valverde’s testimony at trial concerning her interrogation of

appellant. Appellant asserts the trial testimony makes clear that appellant’s statements

about the pillow were the result of further interrogation by Valverde. As noted, our review

of the trial court’s decision on the motion to suppress is necessarily limited to the evidence

then before the court. Willover, 70 S.W.3d at 845. The trial court’s denial of the motion to

suppress with respect to appellant’s statements to Officer Valverde was not an abuse of

discretion.


       As noted, testimony at the suppression hearing indicates that, following appellant’s

confession to her, Valverde summoned Officer Ferguson and appellant made the same

confession to him before he arranged for the video-taped statement. Ferguson, though, did

not testify to that conversation at trial. Appellant’s first issue is overruled.


       In appellant’s second issue she alleges that the trial court erred in allowing

inadmissible polygraph evidence. The specific evidence of which appellant complains is

the testimony of the medical examiner Dr. Patricia Moore. During the State’s direct

examination of Dr. Moore the following exchange took place:




                                                9
       Q:     After the autopsy and the microscopic examination and the cultures and
              toxicology tests, did you find any natural cause of death?
       A:     No, I could not.
       Q:     When you spoke with Sgt. Ferguson, what was his feeling about the case
              and specifically about your autopsy report?
       A:     I’m not sure how to answer that question.
       Q:     When you spoke with him, what specifically did you say to him regarding
              further police investigation?
       A:     I asked him to polygraph the defendant.
       Q:     You asked him to do that within his police investigation?
       A:     Yes.
       Q:     At that point had you made a final ruling as to the cause and manner of death
              in this case?
       A:     No.


       Appellant did not make an objection at the time of this testimony, but waited until the

next morning, outside the presence of the jury, to move for a mistrial. The motion was

denied.


       Prior to trial, the trial court granted appellant’s motion in limine which requested the

prosecutor and the State’s witnesses be instructed not to mention the fact a polygraph was

given. The granting of a motion in limine, however, will not preserve error. Gonzales v.

State, 685 S.W.2d 47, 50 (Tex.Crim.App. 1985). To preserve a complaint for appellate

review, a party must make a timely request, objection, or motion with sufficient specificity

to make the trial court aware of the complaint. Tex. R. App. P. 33.1(a); Jasso v. State, 112

S.W.3d 805, 813 (Tex. App.--Houston [14th Dist.] 2003, no pet. h.); Russell v. State, 904

S.W.2d 191, 196 (Tex.App.–Amarillo 1995, pet. ref’d). To be timely, the complaint must be

made as soon as the grounds are apparent or should be apparent. Wilson v. State, 7

                                              10
S.W.3d 136, 146 (Tex.Crim.App. 1999); Hollins v. State, 805 S.W.2d 475, 476

(Tex.Crim.App. 1991). The record reflects that appellant failed to raise a timely and specific

objection to the reference to the polygraph; therefore she has waived her complaint.

Appellant’s second issue is overruled.


       Appellant’s third issue asserts that her trial counsel’s failure to object to the

inadmissible polygraph evidence constituted ineffective assistance of counsel. The burden

of proving ineffective assistance of counsel is on the appellant and requires proof by a

preponderance of the evidence. Cannon v. State, 668 S.W.2d 401, 403 (Tex.Crim.App.

1984). To show ineffective assistance of counsel at the guilt-innocence phase of a trial, a

defendant must show: (1) counsel’s performance fell below an objective standard of

reasonableness under prevailing professional norms; and (2) there is a reasonable

probability that but for counsel’s deficient performance, the result of the proceeding would

have been different. Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed 2d

674 (1984) (adopted by the Texas Court of Criminal Appeals in Hernandez v. State, 726

S.W.2d 53 (Tex.Crim.App. 1986)). A defendant must overcome the presumption that, under

the circumstances, the challenged action might be considered sound trial strategy.

Strickland, 466 U.S. at 694; Rylander v. State, 101 S.W.3d 107, 110 (Tex.Crim.App. 2003);

Gamble v. State, 916 S.W.2d 92, 93 (Tex.App.–Houston [1st Dist.] 1996, no pet.).


       In this case, trial counsel stated his strategy on the record. Counsel moved for a

mistrial, out of the presence of the jury, before trial resumed the next day. He stated that

his failure to object at the time the testimony was given was an attempt to avoid drawing

the jury’s attention to the testimony. The court offered to instruct the jury to disregard the

                                             11
reference to the polygraph, but counsel still did not want to bring the testimony to the jury’s

attention. Under these circumstances, counsel’s decision not to object to the reference to

the polygraph at the time did not fall outside the wide range of reasonable representation.

See Tong v. State, 25 S.W.3d 707, 712 (Tex.Crim.App. 2000).


       Moreover, the record does not support a contention that counsel’s total performance

fell below reasonable prevailing professional norms. The analysis of effective assistance

takes into consideration the “totality of the representation” rather than isolated acts or

omissions of counsel. Wilkerson v. State, 726 S.W.2d 542, 548 (Tex.Crim.App. 1986).

Appellant’s trial counsel presented a vigorous defense on behalf of his client. Appellant fails

to meet the first requirement of the Strickland test; it is not necessary to address the

second. Appellant’s third issue is overruled.


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




                                                   James T. Campbell
                                                       Justice



Do not publish.




                                              12
