




02-11-260-CR





















COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
 



 
 
NO. 02-11-00260-CR
 
 



The State of Texas


 


STATE




 
V.
 




Julius Virgil Howard


 


APPELLEE



 
 
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FROM Criminal
District Court No. 2 OF Tarrant COUNTY
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OPINION
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I.  Introduction
 
The
State appeals from the trial court’s written order granting Appellee Julius
Virgil Howard’s motion to suppress two orally-recorded statements.  The State
argues in its first two points that the trial court erred by granting Howard’s
motion to suppress based on Miranda v. Arizona, 384 U.S. 436, 86 S. Ct.
1602 (1966), because Howard was not in custody during the interviews, meaning
that Miranda warnings were not required and that the interviewing
officer was therefore permitted to ignore Howard’s purported request for
counsel.  The State alternatively contends in its third and fourth points that
the trial court erred by granting the motion to suppress because Howard did not
unambiguously request counsel.  We reverse and remand.
II.  Factual and
Procedural Background
 
The
trial court conducted an evidentiary hearing on Howard’s written motion to
suppress during which Arlington Police Detective Corinthia Campbell and Hood
County Investigator Robert Young testified.  The trial court also viewed a
portion of Howard’s videotaped polygraph examination.
Detective
Campbell testified that she was assigned to investigate an aggravated sexual
assault offense for which Howard was the suspect.  Detective Campbell arranged
to meet with Howard on December 14, 2009, at the Arlington Alliance Advocacy
Center, a residential location next door to the Arlington Child Protective
Services office.  No arrest warrant had been issued; Howard voluntarily
appeared at the meeting place, and he was not handcuffed or restrained in any way.
 Detective Campbell videotaped her interview of Howard.[1]
 At the end of the interview, Detective Campbell asked whether Howard would
take a polygraph examination, and Howard agreed.
Howard
then drove himself to the polygrapher’s office, and Detective Campbell met him
there.  Investigator Young, who was interning at the polygrapher’s office in
order to become a licensed polygrapher, conducted and videotaped the polygraph
examination.  Investigator Young testified that the polygrapher’s office had a
policy of informing interviewees of their Miranda rights and that he thus
informed Howard of his Miranda rights before beginning the polygraph
examination.  It is during this videotaped polygraph examination that Howard
argues (and the trial court found) that he invoked his right to Miranda
counsel just after Investigator Young informed him of his rights.  Investigator
Young testified that he believed Howard told him that he had wanted counsel
during the earlier interview but wanted to continue with the polygraph
examination and that he therefore continued with the polygraph examination.
At
the conclusion of the polygraph examination, Howard agreed to speak further
with Detective Campbell, and Detective Campbell recorded that interview as well.[2]
Howard
argued to the trial court that the videotaped polygraph examination and the
second interview by Detective Campbell were taken in violation of his Miranda
rights because all questioning should have stopped when he invoked his right to
counsel during the videotaped polygraph examination.  At the conclusion of the
hearing, the trial court orally granted Howard’s motion to suppress and
dictated its findings on the record.
Because
we give the trial court’s factual determinations almost total deference,[3]
we repeat them here:
Based upon the testimony
of Detective Campbell and Mr. Young, the Court’s going to find that the
Defendant did meet with Detective Campbell at the Alliance for Children office,
that he voluntarily met with her.  That when he came into the office, he was
not under arrest.  He’s not charged with anything.  No restraints or handcuffs
were placed on him.
 
Detective Campbell
explained to him that he was allowed to leave at any time.  Detective Campbell
did not read him his Miranda warning, but that he was not in custody. 
He was not denied any things concerning food, water, bathroom breaks.  That he
did, in fact, talk with Detective Campbell.  That at the end of their conversation,
Detective Campbell asked him if he would like to take a polygraph and he stated
that he would.
 
Detective Campbell
did, in fact, call the offices of Richard Wood and actually set up the appointment. 
She was told that the appointment could be taken at 11:30 that same day.  That
Mr. Howard drove himself to the offices of Wood’s polygraph and Detective Campbell
also drove to the offices of Richard Wood.
 
That once he arrived
at the offices of Richard Wood, he met Mr. Robert Young.  It’s the Court’s understanding
that Mr. Young was a criminal investigator with the Hood County District Attorney’s
office.  And that prior to being a criminal investigator, he was also a Hood
County sheriff’s detective or employee.  He was also a certified police
officer.
 
Mr.
Young interviewed Mr. Howard, and during the interview, he read Mr. Howard his Miranda
rights.[[4]] . . . [H]aving
been informed of his rights and understanding, [Mr. Young asked Mr. Howard if
he would] knowingly, intelligently and voluntarily waive those rights, and not
desiring a lawyer, voluntarily choose to proceed with the polygraph examination. 
And he was asked, do you agree with all this.  Mr. Howard, at that time, says,
if I can have a lawyer present.  And Mr. Young told him, you have a -- you can
have a lawyer present to advise you prior to and during any questioning.  Those
are your rights.  Mr. Howard, at that time, said, that’s what I want.  Mr.
Young continued, those are your rights, do you understand all those.  And Mr.
Howard said, yeah.  And then Mr. Young told him, okay, if you understand those
rights, sign right here.  In fact, Mr. Howard did sign the papers.
The trial court also
dictated its conclusions of law[5] on the record as follows:
Now, it’s the Court’s
belief that once these Miranda warnings were given -- which, from the
testimony is the protocol of Richard Woods’ office in conjunction with the
Arlington Police Department -- once he read those rights and Mr. Howard said
that he wanted a lawyer, then the interview should have stopped.
 
The Court’s going to
make a finding that Mr. Young, who was an intern at Richard Woods’ office, and
whose job really was criminal investigator with the Hood County DA’s office
crimes against children, as a matter of fact, that he should have known that
once someone requests a lawyer, that all interviews stop.  I don’t think there’s
any excuse to continuing the interview when a law enforcement officer
understands the rights of an accused and understands Miranda rights and,
in fact, gives this person his Miranda rights, but then continues to go
forward.
 
As such, the Court’s
going to grant the motion to suppress this interview and interviews subsequent
to that by Detective Campbell because that interview took place after this
polygraph exam was taken.  So I think that interview would be tainted also.
 
So
that’s going to be the finding of the Court and it’s going to be so ordered.
The trial court’s written
order on Howard’s motion to suppress states in pertinent part that “[a]fter
reading the pleadings and hearing the testimony, the Court is of the opinion
that the motion should be GRANTED as the statements were a result of a
violations [sic] of Miranda v. Arizona, 86 S.Ct. 1602 (1966).”  The
State filed its notice of appeal with this court the next day.
III. 
Discussion
The
State argues in its first two points that the trial court erred by granting
Howard’s motion to suppress because Miranda warnings were not required since
Howard was never in custody and that the interviewing officer was thus free to
continue questioning Howard following his alleged request for counsel.  Howard
concedes that he was not in custody during any of the videotaped interviews
involved in this case and that Miranda warnings were therefore not
required.  Howard also does not contest that an officer need not scrupulously
follow a person’s request for Miranda counsel when that person is not in
custody and has been gratuitously informed of his Miranda rights.
Because
Howard was not in custody during either of the interviews at issue in this
appeal, we first address whether Investigator Young violated Howard’s rights
under Miranda by continuing with the polygraph examination after Howard requested
counsel.[6]  In that regard, this
case is controlled by the court of criminal appeals’s opinion in Estrada v.
State, 313 S.W.3d 274 (Tex. Crim. App. 2010), cert. denied, 131 S.
Ct. 905 (2011).  In that case, the court of criminal appeals first held that Estrada
was not in custody.  Id. at 294.  Then, addressing Estrada’s contention
that “the police coerced his confession primarily because the police continued
to interrogate [him] after he invoked his Miranda rights to counsel and
to remain silent after the police had informed him of these rights,” id. at
295, the court overruled the point and held as follows:
Even if we were to
assume that appellant unambiguously invoked his rights to counsel and to
silence during the noncustodial interrogation setting, we do not agree that the
police were required to honor these invocations.  We adopt the following
discussion from our unpublished decision in Davis v. State:
 
Because
the appellant was not in custody, law enforcement officials had no obligation
under Miranda to scrupulously honor a request to terminate questioning.  Although
Miranda warnings were given (unnecessarily), that fact does not change
the analysis.  We have recognized that the prosecution cannot impeach a
defendant with his post-Miranda silence, even if Miranda warnings
were given prematurely.  This recognition was based on the idea that it is
fundamentally unfair to make the implicit promise that silence will carry no
penalty and then to break that promise by using the defendant’s silence against
him at trial.  The scrupulous honoring of rights, however, presents a different
situation.  The need to scrupulously honor a defendant’s invocation of Miranda
rights does not arise until created by the pressures of custodial
interrogation.  Without those pressures, the police are free to attempt to
persuade a reluctant suspect to talk, and the immediate termination of the
interrogation after the invocation of rights is simply not required.
Id. at
296 (footnotes omitted) (quoting Davis v. State, No. AP-74393, 2007 WL
1704071, at *5 (Tex. Crim. App. June 13, 2007) (not designated for publication)). 
In a footnote, the Estrada Court further explained its holding as
follows:
We
believe that the defendant’s remedy in a noncustodial setting where the police
continue questioning the defendant after the defendant has unambiguously
invoked his right to silence is simply to get up and leave as appellant could
have done in this case.  We further note that accepting appellant’s suggestion
that the police should have cut off questioning if appellant invoked his right
to silence after gratuitously receiving Miranda warnings would deter
police from informing a suspect of his rights during noncustodial interrogation.
 We decline appellant’s invitation to put the interrogating officers in this
case in a worse position than they would have been in had they provided no Miranda
warnings at all.
Id. at
296 n.26 (citations omitted).
In
this case, the parties do not dispute that Howard was not in custody at the
time Investigator Young informed him of his Miranda rights.  That Howard
was not in custody is further confirmed by the trial court’s above-recited
factual findings.  See Stansbury v. California, 511 U.S. 318, 322–23,
114 S. Ct. 1526, 1528–29 (1994) (“In determining whether an individual was in
custody, a court must examine all of the circumstances surrounding the
interrogation, but the ultimate inquiry is simply whether there [was] a formal
arrest or restraint on freedom of movement of the degree associated with a
formal arrest.” (internal quotes omitted)); Dowthitt v. State, 931
S.W.2d 244, 254 (Tex. Crim. App. 1996) (“A person is in ‘custody’ only if,
under the circumstances, a[n objectively] reasonable person would believe that
his freedom of movement was restrained to the degree associated with a formal
arrest.”).
Because
Howard was not in custody and was thus not subjected to custodial
interrogation, Investigator Young was not required to inform him of his Miranda
rights.  See Estrada, 313 S.W.3d at 296; Gardner v. State, 306
S.W.3d 274, 294 (Tex. Crim. App. 2009), cert. denied, 131 S. Ct. 103
(2010) (“The warnings required by Miranda and article 38.22 are intended
to safeguard a person’s privilege against self-incrimination during
custodial interrogation.” (emphasis added)).  Further, even assuming that
Howard unambiguously requested counsel after Investigator Young gratuitously
informed him of his Miranda rights, Investigator Young could have permissibly
ignored Howard’s request for counsel and proceeded with the polygraph
examination.[7]  Estrada, 313
S.W.3d at 296.  The trial court therefore erred by granting Howard’s motion to
suppress on the ground that Investigator Young should have stopped questioning
Howard upon the invocation of the right to counsel.  See id.
Howard
does not contest the foregoing, nor does he argue that Estrada is
distinguishable.  Instead, Howard contends that the trial court’s order should
be affirmed on a separate theory, that theory being that his statements
following his attempt to invoke Miranda counsel were not voluntarily
made.  See generally Young v. State, 283 S.W.3d 854, 873 (Tex. Crim.
App. 2009) (per curiam), cert. denied, 130 S. Ct. 1015 (2009) (“If the
trial court’s ruling regarding a motion to suppress is reasonably supported by
the record and is correct under any theory of law applicable to the case, the
reviewing court must affirm.”).  Specifically, Howard argues that “the
voluntariness of the statements after requesting counsel is in issue” and that
“although the trial judge didn’t specifically mention voluntariness, it appears
that [voluntariness] was the court’s actual concern.”
A
statement may be deemed “involuntary” under three different theories:  (1)
failure to comply with code of criminal procedure article 38.22 (the Texas
confession statute); (2) failure to comply with the dictates of Miranda;
or (3) it was taken in violation of due process or due course of law because
the statement was not freely given due to coercion, force, or improper
influence.  Wolfe v. State, 917 S.W.2d 270, 282 (Tex. Crim. App. 1996); Moore
v. State, 233 S.W.3d 32, 44 (Tex. App.—Houston [1st Dist.] 2007, no pet.); Miller
v. State, 196 S.W.3d 256, 266 (Tex. App.—Fort Worth 2006, pet. ref’d) (per
curiam) (mem. op.).  We addressed the Miranda ground above, and we note
that article 38.22 likewise applies only to custodial interrogations.  See
Tex. Code Crim. Proc. Ann. art. 38.22 (West 2005); Gardner, 306 S.W.3d
at 294.  Thus, for us to affirm the trial court’s ruling on the ground that
Howard’s statements were involuntarily made, the record must reasonably support
the conclusion that Howard’s statements were not freely given due to coercion,
force, or improper influence.  See Wolfe, 917 S.W.2d at 282 (“In
contrast [to Miranda and article 38.22], due process involuntariness
claims do not necessarily require that the interrogation be custodial.  But in
the absence of custody, due process is violated only by confessions that are
not in fact freely given rather than by mere noncompliance with prophylactic
rules.” (citation omitted)).
To determine
the voluntariness of Howard’s statements, we examine the totality of the
surrounding circumstances.  Delao v. State, 235 S.W.3d 235, 239 (Tex. Crim.
App. 2007), cert. denied, 128 S. Ct. 1128 (2008); Creager v. State,
952 S.W.2d 852, 855 (Tex. Crim. App. 1997).  A confession is involuntary if
circumstances show that the defendant’s will was “overborne” by police
coercion.  Creager, 952 S.W.2d at 856.  In other words, a statement is
involuntary if the record reflects “official, coercive conduct of such a
nature” that any statement obtained thereby is “unlikely to have been the
product of an essentially free and unconstrained choice by its maker.”  Alvarado
v. State, 912 S.W.2d 199, 211 (Tex. Crim. App. 1995).
Given
these considerations, we cannot say that the record reasonably supports a
determination that Howard’s statements were made involuntarily.  The trial
court’s findings reflect that Howard voluntarily met with Detective Campbell at
the Alliance for Children office; was not under arrest, charged with any crime,
handcuffed, or otherwise restrained; was informed that he was free to leave at
any time; was not denied necessities such as food, water, or restroom breaks;
voluntarily agreed to take the polygraph examination and drove himself to the
polygraph office; met with Investigator Young, who informed him of his Miranda
rights; asked questions of Investigator Young concerning his Miranda
rights; signed the waiver form; and answered Investigator Young’s questions.  The
trial court did find that Howard invoked his right to counsel, but nothing
within the trial court’s findings or the evidentiary record suggests that
Howard was subjected to the type of coercive police activity that could render
his statements involuntary.  See Estrada, 313 S.W.3d at 297 (holding
interrogation techniques employed, which were much more intense than those in
this case, were “not the type of brutal ‘third-degree’ techniques” that would
render the confession involuntary under the Due Process Clause).  Thus, the
trial court’s ruling cannot be affirmed on this involuntariness ground, and we
accordingly sustain the State’s first and second points.  We need not decide
the State’s third or fourth points.  See Tex. R. App. P. 47.1.
IV. 
Conclusion
Having
sustained the State’s first and second points and having not reached the
State’s third or fourth points, we reverse the trial court’s order and remand
this case for further proceedings consistent with this opinion.
 
 
ANNE GARDNER
JUSTICE
 
PANEL: 
LIVINGSTON, C.J.; GARDNER and MEIER, JJ.
 
PUBLISH
 
DELIVERED:  August 16, 2012




[1]The admissibility of this
videotaped interview is not at issue in this appeal.


[2]The third interview was
preserved on an audio recording but was not videotaped.


[3]We give almost total
deference to a trial court’s rulings on questions of historical fact and
application-of-law-to-fact questions that turn on an evaluation of credibility
and demeanor.  See Amador v. State, 221 S.W.3d 666, 673 (Tex. Crim. App.
2007); Estrada v. State, 154 S.W.3d 604, 607 (Tex. Crim. App. 2005); Johnson
v. State, 68 S.W.3d 644, 652–53 (Tex. Crim. App. 2002).


[4]The trial court then
listed Howard’s Miranda rights.


[5]Unlike the trial court’s
factual findings, we review de novo the trial court’s application-of-law-to-fact
questions that do not turn on credibility and demeanor.  See Amador, 221
S.W.3d at 673; Estrada, 154 S.W.3d at 607; Johnson, 68 S.W.3d at
652–53.


[6]Because we give the trial
court’s factual determinations almost total deference, we assume for purposes
of this opinion that Howard did in fact unambiguously request counsel after
Investigator Young Mirandized him.


[7]The trial court found that
Howard requested counsel, but the parties dispute that factual determination. 
Howard argues that we must defer to the trial court’s factual finding, and the
State counters that deference is not required because the alleged invocation of
the right to counsel is reflected on the videotaped statement, meaning witness
credibility is not at issue.  However, we need not decide whether Howard
requested counsel or whether he did so unambiguously because Estrada
instructs us that Investigator Young was permitted to ignore an unambiguous
request for counsel since Howard was not being subjected to custodial
interrogation.  See 313 S.W.3d at 296.


