                                             OPINION
                                       No. 04-10-00060-CR

                                     Karl Anthony HODSON,
                                            Appellant

                                                  v.

                                      The STATE of Texas,
                                            Appellee

                   From the 216th Judicial District Court, Kendall County, Texas
                                      Trial Court No. 4727
                          Honorable N. Keith Williams, Judge Presiding

Opinion by:      Marialyn Barnard, Justice

Sitting:         Karen Angelini, Justice
                 Steven C. Hilbig, Justice
                 Marialyn Barnard, Justice

Delivered and Filed: May 11, 2011

AFFIRMED

           A jury convicted Appellant Karl Anthony Hodson of capital murder. The trial court

assessed punishment at confinement in the Texas Department of Criminal Justice-Institutional

Division for life without parole. On appeal, Hodson contends the trial court erred in denying his

motion to suppress his statements to law enforcement officers made on July 24, 2007 and July

25, 2007. We affirm the trial court’s judgment.
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                                        BACKGROUND

        Leon Denver Poe, a Pizza Hut delivery man, was robbed and stabbed to death while

making a pizza delivery. Once Poe’s body was recovered, Texas Ranger Sergeant Kyle Dean

traced the call made to Pizza Hut to Hodson’s parents’ cellular phone account. Sergeant Dean

then contacted Hodson’s father and asked that Hodson call the Ranger back. During this time,

Sergeant Dean had interviewed some witnesses who placed a white pick-up truck with rust spots

at the murder scene.

                                   July 24, 2007 Statement

        Once Hodson called Sergeant Dean back, Sergeant Dean contacted Sergeant Randy

Boysen with the Department of Public Safety, asking him to go to the family residence to

determine if Hodson would agree to an interview.

        When Sergeant Boysen arrived at the Hodson family residence, he noticed a white pick-

up truck with rust spots. Sergeant Boysen asked Hodson and his girlfriend, co-defendant Jenillee

Sheppard, if they would agree to an interview with Sergeant Dean. Both Hodson and Sheppard

said they were willing to do the interview. Due to the recent heavy rain, the road to the Hodson

residence was very slippery and Sergeant Boysen was afraid Sergeant Dean would not be able to

make it up the road so he suggested meeting Sergeant Dean at the Bandera County Lakehills

Annex (“the Annex”). Sergeant Boysen then informed Hodson and Sheppard that they were not

under arrest and that the interview was voluntary. All parties, including Hodson’s parents,

agreed to the interview at the Annex. Deputy David McGilvray was at the Hodson residence as

well.   Deputy McGilvray offered to drive Hodson to the Annex, which Hodson accepted.

Deputy McGilvray testified he did not order Hodson to ride with him.




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       At the Annex, Hodson agreed to be interviewed without the presence of Sheppard or his

parents. Sheppard was then taken to a separate room. At the start of the interview, Sergeant

Dean advised Hodson he was not under arrest and was free to leave at any time. Sergeant Dean

did not read Hodson his statutory warnings because Sergeant Dean did not feel as if he had

probable cause to arrest Hodson at that time.         During the sixty minute interview, Hodson

admitted to being present at the time of the murder and robbery. Hodson also said he helped

dispose of the body because a man named Paul Strait told Hodson he would kill him if Hodson

did not help. Sergeant Dean then told Hodson he did not believe him and that he would be

interviewing Sheppard soon and she would “give it up.”

       When the interview concluded, Sergeant Dean allowed Hodson’s parents to go in and see

their son. Sergeant Dean did not station anyone outside the interview room to prevent Hodson

from leaving. Sergeant Dean testified Hodson never asked to leave, speak to his parents or an

attorney, nor was he told he was not free to leave.

       Sergeant Dean then interviewed Sheppard. During the interview, he heard a commotion

but continued the interview. Sheppard told Sergeant Dean it was her belief they were only going

to rob Poe but that she saw Hodson stab him.

       While Sergeant Dean was interviewing Sheppard, Deputy McGilvray heard the

commotion as well, and when he looked in the interview room, he saw Hodson half-way outside

the window. Deputy McGilvray testified Hodson’s father was hanging onto Hodson’s legs while

trying to fall backwards. Sergeant Boysen was outside the Annex and saw Hodson drop from a

window and run away. Sergeant Boysen pursued Hodson on foot.

       While Hodson was on the run, Sergeant Dean used Sheppard’s statement that she had

seen Hodson stab Poe to secure an arrest warrant for Hodson. Hodson was eventually arrested.



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                                    July 25, 2007 Statement

       After Hodson was arrested, he was taken before a magistrate. Hodson was then read and

advised of his rights per article 15.17 of the Texas Code of Criminal Procedure. See TEX. CODE

CRIM. PROC. ANN. art. 15.17 (West Supp. 2010). At the magistrate hearing, when asked if he

wanted an attorney appointed to represent him, Hodson replied in the affirmative and filled out

the appropriate paperwork.

       After magistration, Hodson was taken from the Bandera County jail to the Kendall

County jail. It was at the Kendall County jail that Lieutenant Louis Martinez interviewed

Hodson. Before the interview began, Lieutenant Martinez again advised Hodson of his rights.

Hodson waived those rights on the record during the interview and agreed to speak to Lieutenant

Martinez without his attorney present. It was during this interview that Hodson confessed to

robbing and stabbing Poe.

                                    Trial Court Proceedings

       Hodson filed a motion to suppress the oral statements made on July 24 and July 25,

claiming the statements were obtained in violation of the Fifth, Sixth, and Fourteenth

Amendments of the United States Constitution, Article 1, Section 9 of the Texas Constitution,

and articles 15.17 and 38.22 of the Texas Code of Criminal Procedure.

       After the first suppression hearing, the trial court denied Hodson’s motion to suppress the

July 24 statement but, with the State’s concession at that hearing, granted his motion to suppress

the July 25 statement.

       A second suppression hearing was held to reconsider the admissibility of Hodson’s

second statement. Based on a recent United States Supreme Court case, Montejo v. Louisiana,




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the trial court denied Hodson’s motion to suppress the July 25 statement. See 129 S.Ct. 2079

(2009).

          Hodson was subsequently found guilty of capital murder and sentenced to life without

parole. He then perfected this appeal.

                                              ANALYSIS

                                         Standard of Review

          A trial court’s ruling on a motion to suppress is reviewed for an abuse of discretion under

a bifurcated standard. State v. Dixon, 206 S.W.3d 587, 590 (Tex. Crim. App. 2006). As the

reviewing court, we will defer to the trial court’s determination of facts but review the trial

court’s application of the law de novo. See Carmouche v. State, 10 S.W.3d 323, 328 (Tex. Crim.

App. 2000). All evidence will be viewed “in the light most favorable to the trial court’s ruling.”

State v. Iduarte, 268 S.W.3d 544, 548 (Tex. Crim. App. 2008). The trial court’s ruling will be

upheld if there is any valid theory of law applicable to the case, even if the trial court did not

base its decision on that theory. State v. Steelman, 93 S.W.3d 102, 107 (Tex. Crim. App. 2002).

                                       July 24, 2007 Statement

          In his first point of error, Hodson contends his statements made on July 24, 2007 should

have been suppressed because he was in custody, but was never given the required constitutional

and statutory warnings. The State contends Hodson was not in custody when the interview took

place and therefore, the statutory warnings were not required.

          A suspect need only be given article 38.22 and Miranda warnings if the suspect is in

custody. TEX. CODE CRIM. PROC. ANN. art. 38.22 (West 2005); Miranda v. Arizona, 384 U.S.

436, 478 (1966). “A person is in ‘custody’ only if, under the circumstances, a reasonable person

would believe that his freedom of movement was restrained to the degree associated with a



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formal arrest.” Dowthitt v. State, 931 S.W.2d 244, 254 (Tex. Crim. App. 1996) (citing Stansbury

v. California, 511 U.S. 318, 322 (1994)). The Texas Court of Criminal Appeals has recognized

four situations that may constitute custody:

                    (1) when the suspect is physically deprived of his freedom of
                    action in any significant way, (2) when a law enforcement
                    officer tells the suspect that he cannot leave, (3) when law
                    enforcement officers create a situation that would lead a
                    reasonable person to believe that his freedom of movement has
                    been significantly restricted, and (4) when there is probable
                    cause to arrest and law enforcement officers do not tell the
                    suspect that he is free to leave.

Id. Because Hodson was repeatedly told he was not under arrest and was free to leave at any

time, we are only concerned with the first, third, and fourth situations. This court has found that

when interpreting the fourth situation, we consider whether the suspect voluntarily arrived at the

place of interrogation, the length of the interrogation, whether the suspect was forbidden from

seeing family or friends, how much control was exercised over the suspect, and whether a

“pivotal admission established custody.” Espinoza v. State, 185 S.W.3d 1, 3 (Tex. App.—San

Antonio 2005, no pet.) (quoting Xu v. State, 100 S.W.3d 408, 413 (Tex. App.—San Antonio

2002, pet. ref’d)). These factors are also helpful in determining whether a suspect is in custody

in the first and third situations. Id. Therefore, we will focus our analysis on these factors.

       Hodson voluntarily went to the Annex with Deputy McGilvray. The interview began

promptly, lasted about an hour, and Hodson was only waiting twenty-six minutes or so before he

fled the Annex through the window. It was undisputed that Hodson was allowed to see his

parents after the interview. As for the amount of control exercised over Hodson, he was told he

was there voluntarily and could leave at any time because he was not under arrest, his family was

allowed to see him, and no guard was stationed outside his interview room to keep him from

leaving. At no point in time was Hodson placed in handcuffs or physically restrained.

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       As for the final factor, Hodson made an admission during the interview. The question

becomes whether this admission established custody. Hodson relies on Dowthitt because in that

case, the defendant admitted to being present during the murders. The Court of Criminal

Appeals held that “a reasonable person would have realized the incriminating nature of the

admission.” Dowthitt, 931 S.W.2d at 257. But, the court in Dowthitt also found other factors

indicating police control over the defendant, such as an interrogation lasting over twelve hours,

the defendant being escorted to and from the restroom, police officers ignoring his requests to

see his wife and ignoring his complaints of exhaustion, and the defendant being denied food. Id.

       Situations where the manifestation of probable cause triggers custody are unusual. State

v. Stevenson, 958 S.W.2d 824, 829, n.7 (Tex. Crim. App. 1997). Even though a suspect may

implicate himself in an offense, unless the circumstances are unique, as in Dowthitt, “this alone

does not trigger custody.” Garcia v. State, 237 S.W.3d 833, 837 (Tex. App.—Amarillo 2007, no

pet.). “[A]lthough appellant’s statements were sufficient to establish probable cause to arrest

him, the other circumstances present would not ‘lead a reasonable person to believe that he is

under restraint to the degree associated with an arrest.’” Trejos v. State, 243 S.W.3d 30, 47 (Tex.

App.—Houston [1st Dist.] 2007, pet. ref’d) (quoting Dowthitt, 931 S.W.2d at 254). Here,

Sergeant Dean testified Hodson admitted to being present during the robbery and murder. Other

than this admission, there were no other circumstances present to lead a reasonable person to

believe he was under arrest.

       We hold the trial court correctly concluded Hodson was not in custody when he made the

statements in question. Because Hodson was not in custody at that time, the failure to admonish

him of his constitutional and statutory rights did not render the statements inadmissible.




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Therefore, we hold that the trial court did not abuse its discretion in denying Hodson’s motion to

suppress the July 24 statements.

                                      July 25, 2007 Statement

       In his second point of error, Hodson contends his statements made on July 25, 2007

should have been suppressed because his Fifth and Sixth Amendments right to have an attorney

present during questioning attached when he requested an attorney at the magistrate hearing.

Hodson argues that because he requested an attorney during magistration, law enforcement

officers were not allowed to re-initiate contact with him at the jail and therefore, his inculpatory

statements to Lieutenant Martinez should have been suppressed. The State argues, and we agree,

that in light of Montejo v. Louisiana, law enforcement officers are no longer barred from re-

initiating contact once a defendant has requested an attorney.

       Prior to Montejo, Michigan v. Jackson was the controlling case on the Sixth Amendment

right to counsel. 475 U.S. 625 (1986), overruled by Montejo v. Louisiana, 129 S.Ct. 2079

(2009). Jackson stood for the proposition that once a defendant requested an attorney at an

arraignment or magistrate hearing, law enforcement officers were barred from initiating

interrogation thereafter. Id. at 636. If law enforcement officers initiated the interrogation, “any

waiver of the defendant’s right to counsel for that police-initiated interrogation is invalid.” Id.

       Montejo changed the landscape by expressly overruling Jackson. Montejo, 129 S.Ct. at

2091. In Montejo, the defendant, charged with murder, was taken before a judge and counsel

was appointed for him. Id. at 2082. After the preliminary hearing, two law enforcement officers

asked Montejo to go with them to find the murder weapon. Id. Although it was disputed,

Montejo was read his Miranda warnings and finally agreed to accompany the officers. Id.

During this excursion, Montejo wrote a letter of apology to the widow; the letter was later



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admitted at trial.         Id.   The Supreme Court explained that even though Montejo had been

appointed counsel at the preliminary hearing, the officers were not barred from re-initiating

contact with him after the hearing and the inculpatory letter was admissible under the Sixth

Amendment. Id. at 2091.

           The Court explained that Jackson was no longer needed because: (1) Miranda v. Arizona

guarantees any suspect in custodial interrogation the right to have an attorney present, and to be

advised of that right; 1 (2) Edwards v. Arizona guarantees that once a suspect has invoked his

right to an attorney, interrogation must cease; 2 and (3) Minnick v. Mississippi guarantees that

once a suspect has invoked his right to counsel and the interrogation has ceased, interrogation

may not resume until counsel is present. 3 Montejo, 129 S.Ct. at 2089-90. The Court further

explained that under these three cases, “a defendant who does not want to speak to the police

without counsel present need only say as much when he is first approached and given the

Miranda warnings.” Id. at 2090.

           The Court remanded the case due to Fifth Amendment concerns: “If Montejo made a

clear assertion of the right to counsel when the officers approached him about accompanying

them on the excursion for the murder weapon, then no interrogation should have taken place

unless Montejo initiated it.” Id.

           The Texas Court of Criminal Appeals, in Hughen v. State, echoed the Supreme Court’s

holding in Montejo. 297 S.W.3d 330, 336 (Tex. Crim. App. 2009). The defendant in Hughen

was taken before a magistrate and asked that counsel be appointed to represent him. Id. at 332.

Thereafter, Hughen was interviewed by law enforcement officers and made inculpatory

1
    384 U.S. 436 (1966).
2
    451 U.S. 477 (1981).
3
    498 U.S. 146 (1990).

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statements. Id. at 332. Although the court held that Hughen’s Sixth Amendment right to counsel

had not been violated when the officers re-initiated contact, the court did not comment on

Hughen’s Fifth Amendment right to counsel because he raised only the issue of his Sixth

Amendment right, not his Fifth Amendment right. Id. at 335. Regarding the Fifth Amendment,

the court only stated, “the Fifth Amendment does bar police-initiated interrogation of an accused

who, in the context of custodial interrogation, has previously asserted his right to counsel during

such interrogation, unless the accused’s counsel is actually present.” Id.

       In light of Montejo and Hughen, we can easily dispose of Hodson’s Sixth Amendment

argument that his July 25 statement is inadmissible because Lieutenant Martinez re-initiated

contact with him after he had requested counsel at the magistrate hearing.           Because law

enforcement officers are no longer barred from re-initiating contact with a defendant after that

defendant has requested counsel at a preliminary hearing, those statements taken during these

interviews are no longer presumed invalid under the Sixth Amendment. See Montejo, 129 S.Ct.

at 2091; Hughen, 297 S.W.3d at 336.

       Our inquiry turns to whether Hodson’s relinquishment of his Sixth Amendment right to

counsel was voluntary, knowing, and intelligent. See Patterson v. Illinois, 487 U.S. 285, 292, n.

4 (1988). A waiver will be voluntary, knowing, and intelligent when the suspect is admonished

with the Miranda warnings, “apprised of the nature of his Sixth Amendment rights, and of the

consequences of abandoning those rights . . . .” Id. at 296. Article 38.22 of the Code of Criminal

Procedure (“the Code”) sets out the statutory warnings that must be given in order for a waiver to

be knowingly, intelligently, and voluntarily waived. TEX. CODE CRIM. PROC. ANN. art. 38.22

(West 2005).     The Code states that no oral statement will be admissible unless it was

electronically recorded and the suspect has been warned, on the record, that he has the right to:



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remain silent because any statement given may be used against him, have an attorney present,

have an attorney appointed, and to terminate the interview at any time. Id. art. 38.22 § 2.

       It is the State’s burden to prove, by a preponderance of the evidence, that a suspect

knowingly, intelligently, and voluntarily waived those rights. Joseph v. State, 309 S.W.3d 20, 24

(Tex. Crim. App. 2010). To ascertain whether a suspect has knowingly, intelligently, and

voluntarily waived his rights, voluntariness and awareness must be addressed. See Moran v.

Burbine, 475 U.S. 412, 421 (1986); Joseph, 309 S.W.3d at 25.

               First, the relinquishment of the right must have been voluntary in
               the sense that it was the product of a free and deliberate choice
               rather than intimidation, coercion, or deception. Second, the
               waiver must have been made with full awareness of both the nature
               of the right being abandoned and the consequences of the decision
               to abandon it. Only if the “totality of the circumstances
               surrounding the interrogation” reveals both an uncoerced choice
               and the requisite level of comprehension may a court properly
               conclude that the Miranda rights have been waived.

Moran, 475 U.S. at 421; Joseph, 309 S.W.3d at 25.

       Although Hodson made an oral statement, Lieutenant Martinez electronically recorded

that statement. Lieutenant Martinez then read Hodson the statutory warnings. When asked if he

understood his rights, Hodson asked for clarification on when he could stop the interview.

Lieutenant Martinez responded, “You can stop talking anytime you want. Nobody can make you

talk.” Hodson then stated that he understood his rights and proceeded to give his statement. At

the suppression hearing, Lieutenant Martinez testified that in his opinion, Hodson freely and

voluntarily gave the statement and that at no time during the interview did Hodson invoke any of

his statutory rights or was offered anything in exchange for giving a statement. The record

supports Lieutenant Martinez’s assertions because it shows no evidence of intimidation or




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coercion. We agree with the trial court that based on the totality of the circumstances, Hodson

freely and voluntarily waived his statutory rights prior to giving the statement.

       Therefore, in light of Montejo v. Louisiana, we overrule Hodson’s contention that his

Sixth Amendment rights were violated when Lieutenant Martinez interviewed him after he

requested an attorney at the magistrate hearing.         We also hold the State proved, by a

preponderance of the evidence, that Hodson knowingly, intelligently, and voluntarily waived his

rights before the inculpatory statements were made. Therefore, the trial court did not err in

denying the motion to suppress the July 25 statements.

                                           CONCLUSION

       Based on the foregoing, we overrule Hodson’s two points of error and affirm the trial

court’s judgment.


                                                   Marialyn Barnard, Justice

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